Posts Tagged: "prince"

While Prince might have written the song “Nothing Compares 2 U,” Sinéad O’Connor transformed the tune, made it her own and it became a mega hit. In a similar vein, photographer Lynn Goldsmith took a photograph of Prince in 1981 that artist Andy Warhol used as a basis for his 1984 “Prince Series” silkscreen prints. Did Warhol infringe Goldsmith’s copyright by using her photograph as the basis for his prints or was his work sufficiently transformative to be protected as “fair use”? That is the question at the heart of the case that the United States Supreme Court will hear in its fall 2022 term. This case may prove to be the most significant Supreme Court fair use case to date.

The U.S. Supreme Court today granted cert in Andy Warhol Foundation v. Goldsmith, Lynn, et. al., a case that asks the High Court to review a decision of the U.S. Court of Appeals for the Second Circuit holding  that Andy Warhol’s Prince Series did not constitute fair use of Lynn Goldsmith’s photograph. In its petition for certiorari, filed in December 2021, the Andy Warhol Foundation told the Court that “the Second Circuit’s decision…creates a circuit split and casts a cloud of legal uncertainty over an entire genre of visual art.”

The Andy Warhol Foundation has petitioned the U.S. Supreme Court, asking it to review a decision of the U.S. Court of Appeals for the Second Circuit holding  that Andy Warhol’s Prince Series did not constitute fair use of Lynn Goldsmith’s photograph. The Second Circuit held in March that “the district court erred in its assessment and application of the fair-use factors and the works in question do not qualify as fair use.” The Court of Appeals further concluded that the Prince Series works were substantially similar to the Goldsmith Photograph “as a matter of law.” The Supreme Court petition argues that “the Second Circuit’s decision…creates a circuit split and casts a cloud of legal uncertainty over an entire genre of visual art.”

“Fair Use” is a flexible defense to claims of copyright infringement. It is a doctrine that evolves as technology and the way in which people use copyrighted works advance. As an exception to the general law prohibiting copying others’ works, it permits copying for a limited and “transformative” purpose, such as commentary, criticism, teaching, news reporting, scholarship, or research. Naturally, the way courts analyze the “fair use” defense must adapt as technology advances and the way in which creative content is developed evolves. Earlier this year, for example, the U.S. Supreme Court ruled on a landmark fair use case involving the “copying” of an Application Programming Interface (API).

With the value of his music catalogue still subject to an ongoing dispute between the trust managing his estate and the IRS, Prince, who died in 2016, has a new partner. Primary Wave, whose catalog includes songs by Nirvana, Bob Marley, Ray Charles and Smokey Robinson, has taken a roughly 50% stake in Prince’s estate, buying out the interests of three of the late musician’s siblings. Primary Wave is said to have $1.6 billion in investible assets. A highly creative and successful writer, producer and performer, Prince was also a savvy IP strategist, who sought to control his work, name and image. He was a fierce defender of his intellectual property rights, and was involved in a series of legal actions against businesses and individuals using his music and other IP without his authorization. He also railed against his record company, which sought to assert ownership rights over his catalogue and name.

On March 26, the U.S. Court of Appeals for the Second Circuit reversed The United States District Court for the Southern District of New York’s decision that Andy Warhol’s Prince Series constituted fair use of Lynn Goldsmith’s photograph, holding that “the district court erred in its assessment and application of the fair-use factors and the works in question do not qualify as fair use.” The Court of Appeals further concluded that the Prince Series works were substantially similar to the Goldsmith Photograph “as a matter of law.” In 1981, Defendant-Appellant Lynn Goldsmith (Goldsmith) took several photographs of the then up-and-coming musical artist Prince Rogers Nelson (Prince). In 1984, Goldsmith’s agency, Defendant-Appellant Lynn Goldsmith, Ltd. (LGL) licensed one of the photographs from the 1981 photoshoot to Vanity Fair magazine “for use as an artist reference.” Unbeknownst to Goldsmith and LGL, the artist who used her photo as inspiration was Andy Warhol, and not only did he use her photo for inspiration for the image Vanity Fair commissioned, but he continued to create an additional 15 works, which are known as the “Prince Series.”

In my previous post, I explored how times have changed for photographers who once appeared to have the upper hand in copyright infringement disputes with appropriation artists and others. As discussed there, the high-water mark for photographers may have been several years ago, when the Associated Press used its leverage to reach a settlement with Richard Fairey regarding his Obama Hope poster. However, since then, photographers have suffered a series of losses, beginning in 2013 with Cariou v. Prince and continuing in 2018 with Rentmeester v. Nike, Inc. The most recent case to strike a blow against photographers is The Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith (S.D.N.Y. 2019).

Among the 2017 inductees into the National Inventors Hall of Fame is Howard Head, the inventor of both the laminate ski as well as the oversized tennis racket. Sunday, September 10th, marked the 42nd anniversary of the filing date for one of two patents for which Head has been inducted, affording us an opportunity to look back at the innovative contributions to sports from an engineer who just couldn’t stand his own poor athleticism.

While it is possible to copyright the design of a band logo, the band name itself is not copyrightable (see here and here). Band names are protectable under trademark law, because like brand names they allow us to distinguish one band’s music and identity from another. They are what enable us to distinguish between a “Beatles” record on the one hand, and a “Chipmunks” record on the other… The more unique the name, the greater the degree of trademark protection, but also the more the name will stand out and set the band apart from others, which is generally the goal.

Entities owning the copyrights to music created by the late pop star Prince had filed suit against Roc Nation, the entertainment company owned by rapper Jay Z, which is affiliated with the streaming music service Tidal. Plaintiffs NPG Records and NPG Music Publishing allege that Tidal and Roc Nation have engaged in copyright infringement by adding a series of 15 unauthorized Prince albums to the Tidal catalog this June. The case is filed in the U.S. District Court for the District of Minnesota.

In February 2007, Stephanie Lenz uploaded a 29-second video of her son dancing in her kitchen to the Prince song “Let’s Go Crazy” to YouTube. Universal Music Group, Prince’s publishing administrator responsible for enforcing his copyrights, objected to the otherwise-innocuous video, and sent YouTube a warning to remove the video, claiming that it constituted copyright infringement under the Digital Millennium Copyright Act (DMCA). Stephanie Lenz sued, arguing that Universal’s takedown request targeted permissible fair use, which generally permits the use of copyrighted material in limited conditions, such as when used in connection with criticism, parody, commentary or news reporting.