On Friday, February 28, 2020, the Cyberlaw Clinic filed an amicus curiae brief (.pdf) in the United States Court of Appeals for the Second Circuit on behalf of a group of prominent intellectual property law scholars. The Clinic filed the brief in the case, The Andy Warhol Foundation for the Visual Arts v. Lynn Goldsmith. The case arises out of a particularly interesting set of facts. In 2018, Ms. Goldsmith alleged that Mr. Warhol infringed her copyright when he used one of her photographs of the musician Prince as the basis for his iconic “Prince Series.” Andy Warhol created the Prince Series for use in the November 1984 issue of Vanity Fair magazine. Ms. Goldsmith brought suit in 2018 based on the use of the Prince Series in a special commemorative issue that Condé Nast published after Prince’s death in 2016. The United States District Court for the Southern District of New York ruled that Mr. Warhol’s use was permissible under the fair use doctrine, because of the way he transformed the photograph when creating his images. Ms. Goldsmith appealed to the Second Circuit.The Clinic filed its brief in support of The Andy Warhol Foundation on behalf of fourteen law scholars whose research and teaching focus on copyright and intellectual property law (including Jonathan Askin, Oren Bracha, Sonya G. Bonneau, Dr. Carys J. Craig, James Gibson, James Grimmelman, Laura A. Heymann, Stacey M. Lantagne, Mark Lemley, Jessica Litman, Jessica Silbey, Zahr K. Said, and Jennifer M. Urban). The Clinic team worked closely with Harvard Law School Professor Rebecca Tushnet to develop arguments for the brief and received valuable input from many of the other signatories.
In the brief, amici argued that, while Mr. Warhol’s use was indeed fair use, the Court could also rule in favor of Mr. Warhol on the basis that his work was not substantially similar to Ms. Goldsmith’s photograph. The Second Circuit has held that, for two works to be substantially similar, one must copy enough protectable material such that it improperly appropriates both protectable, expressive elements and the “total concept and feel” of the first work. This important aspect of the law protects the aspects of creative expression that copyright is designed to protect while encouraging creative innovation that builds on and is inspired by the work of others.
As expressed in the brief, without strict applicaton of the substantial similarity requirement, “Jurassic Park might infringe upon a story involving shenanigans on a dinosaur island, the copyright holders of the character Superman could prevent others from creating a superhero who is super strong and flies around in a cape and primary-colored suit, and no one else could take a photograph of Michael Jordan leaping without Jacob Rentmeeseter’s permission.” In these cases like these, where the works are so substantially distinct that they are fundamentally different in their expression, a court can resolve disputes without ever having to reach the four-factor fair use test. Put another way, if a work is non-infringing, there is no need to go through the trouble of establishing that a use is fair (which can be expensive and time-consuming).
Policy considerations in favor of resolving disputes based on substantial similarity rather than on fair use are especially significant, because lengthy litigation may be well beyond the means of many defendants. Therefore, amici argued, it makes sense to resolve copyright disputes early and on fundamental grounds in order to avoid chilling creative expression by artists who can’t afford to defend their works.
This case has generated strong interest in the photography and artist communities, with multiple amici briefs filed in support of each party. Sharing in the Clinic’s support for The Warhol Foundation, The Robert Rauschenberg Foundation filed its own amicus brief (.pdf), and the NYU Technology Law and Policy Clinic filed an amicus brief (.pdf) on behalf of artists Latipa and Việt Lê. These briefs reflect the views of artists whose works—like Warhol’s— incorporate components from other artists and sources. Both emphasize the ways in which artistic progress is served by allowing artist to draw upon existing creative works in creating their own art, whether that be by way of inspiration, commentary, criticism, or recontextualization.
Katie Lin (JD ’21) worked on the brief during the winter term 2020, and we completed it during the spring semester with assistance from Clinical Professor Christopher Bavitz, Professor Tushnet, and other amici.
Alex Chemerinsky and Ryan Lind are 2Ls at Harvard Law School, enrolled in the Cyberlaw Clinic during the spring term, 2020.