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Sullivan files Supreme Court Amicus Brief to Clarify Fair Use and Transformativeness in Warhol’s Use of Lynn Goldsmith’s Prince Photos

Posted by Nicholas O'Donnell on August 15, 2022 at 10:55 AM

Sullivan has filed an amicus curiae (friend of the court) brief in the upcoming Supreme Court case Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith. The brief was filed as counsel of record for copyright scholar Philippa S. Loengard, the Kernochan Center for Law, Media and the Arts at Columbia Law School. The case concerns the applicability of Section 107 of the Copyright Act, which permits as a fair use that would otherwise be copyright infringement—to a print made by Andy Warhol from a photograph of the musician Prince by photographer Lynn Goldsmith. In particular, the question presented to the Court addresses the implications of the Court’s holding nearly thirty years ago in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994) that allowed for the possibility that a secondary use could be considered a fair use if it were sufficiently “transformative.” What exactly that means in the context of visual art has been a fraught—and at times incoherentsubject in recent years. Our brief explains that the Court should return the analysis of fair use to the four factors established by Congress. In the case of the first of the four factors, the Court should focus on the statutory language of the purpose and character of the works. By contrast, the inquiry into the meaning or message of the works advocated by the Warhol Foundation and the amici supporting it is a fool’s errand that provides no clarity and would render the copyright in photographs effectively unenforceable. This case is not a battle between Lynn Goldsmith and Andy Warhol; those artists proved entirely capable in 1984 of arranging the balance for themselves. It is a battle between a maximalist view by the Warhol Foundation that dismisses the value of photography as a creative medium at all.

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Topics: Copyright Act, Roy Orbison, Toward a Fair Use Standard, Campbell v. Acuff Rose Music Inc., Kernochan Center for Law Media and the Arts, Philippa S. Loengard Esq., Columbia Law School, Prince, transformative, Andy Warhol, Fair Use, Andy Warhol Foundation for the Visual Arts, Condé Nast, People Magazine, The Time, 2 Live Crew, Death Valley, Velázquez, Rubens, King Philip IV of Spain, Las Meninas, Section 107, Billboard, Pierre N. Leval, “Oh, Pretty Woman”, Mickey Mouse

Free Speech, Fair Use, and Meaning—Recapping An Evening of Copyright and the Visual Arts at the Sotheby’s Institute

Posted by Nicholas O'Donnell on October 17, 2013 at 1:34 PM

Last night was a fascinating evening at the Sotheby’s Institute in New York, where Judith Prowda was celebrating the launch of her new book Visual Arts and the Law (Lund Humphries 2013). The book, not at all incidentally, is a must-have.

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Topics: free speech, Richard Prince, Amy Adler, Campbell v. Acuff-Rose Music, Judith Prowda, Canal Zone, Patrick Cariou, Lund Humphries, Boies Schiller, American Society of Media Photographers, Yes Rasta, Kirkland & Ellis, NYU Law School, Events, Picture Archive Council of America, Shepard Fairey, Dale Cendali, Copyright, Hope, Visual Arts and the Law, transformative, First Amendment, Associated Press, Sotheby’s Institute, Fair Use

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About the Blog


The Art Law Report provides timely updates and commentary on legal issues in the museum and visual arts communities. It is authored by Nicholas M. O'Donnell, partner in our Art & Museum Law Practice.

The material on this site is for general information only and is not legal advice. No liability is accepted for any loss or damage which may result from reliance on it. Always consult a qualified lawyer about a specific legal problem.

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