Posts Tagged: "fair use"

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 (SCOTUS) is set to hear Andy Warhol v. Lynn Goldsmith in October. It will be the latest in a series of cases the Court has taken on over the last decade-plus that promise to change U.S. innovation as we know it. The case will be heard on the heels of other controversial SCOTUS decisions that have drastically changed the legal landscape, with rulings that transfer power from the federal government to the individual states (Dobbs v. Jackson Women’s Health Organization) or that reduce federal oversight altogether (West Virginia v. EPA). It has also put limits on specific executive powers and plans to rule soon on affirmative action. Not getting as much attention, but arguably equally important, are some recent and not-so-recent decisions that have changed the landscape of the rights of authors and inventors, and the upcoming Warhol case, which may effectively remove them altogether. Unfortunately, many people, including politicians and academics, don’t understand—or refuse to recognize the importance of—intellectual property rights for the advancement of civilization.

On August 3, the U.S. Court of Appeals for the Ninth Circuit issued a ruling in McGucken v. Pub Ocean Ltd. that reversed a Central District of California’s sua sponte grant of summary judgment to Pub Ocean on McGucken’s copyright infringement claims. The case involved Pub Ocean’s unauthorized use of photos of a lake that formed in Death Valley, California, in March 2019. The Ninth Circuit found that all of the fair use factors weighed against a determination that Pub Ocean’s unlicensed use of the photographs were transformative.

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.”

One of the greatest attributes of copyright law is the never-ending abundance of exciting new developments, including those in Congress, the courts, and at the Copyright Office. On the surface, copyright seems straightforward in that it advances the public good by securing property rights to authors. But underneath this simple veneer lies centuries of debate about how best to balance the rights of authors with the public interest, where each distinct issue presents a veritable rabbit hole of metaphysical distinctions. For the copyright connoisseur, keeping up with the latest events can be an exhausting endeavor, though the thrill of solving new puzzles makes it intellectually rewarding. Thankfully, one need not be a member of the copyright cognoscenti to appreciate the major developments in copyright law this past year. From the Supreme Court’s decision in Google v. Oracle to the implementation of a small copyright claims tribunal to attempts to rein in state infringements, 2021 has certainly provided many wonderful events worth highlighting.

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.”

Picture this: A paparazzo snaps an unauthorized photo of a celebrity and sells it to a media outlet, making a tidy profit. As unfair as that may sound to the celebrity, most stars are well-aware of the established law that a photograph—even an unwanted one—can be monetized by the paparazzi. The law also is clear that, absent permission, the celebrity cannot monetize the photograph herself. Photographs, like other works of art, can be copyrighted by the paparazzi and, as with copyright, the owner possesses the famed “bundle of rights,” including the right to prohibit others from displaying the photograph for money.

“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).

One of the latest controversies in copyright law concerns the practice of controlled digital lending (CDL) by libraries. The idea is simple: Libraries take the physical books on their shelves, digitize them, and then share the digital copies with members of the public. Under the CDL theory, there is no permission needed to make the digital copies, nor is permission needed to share them publicly. The theory instead posits that all these things are perfectly legal—and presumably they have been legal for decades, though people are just now starting to notice. If this sounds too good to be true, that’s because it is. Ultimately, the CDL theory is really just the CDL fantasy. It’s an example of wishful thinking by supposed do-gooders who have figured out yet another way to give away other people’s copyrighted works for free. Except, this time, it at least comes with the fig leaf of a library.

The U.S. Court of Appeals for the Eighth Circuit yesterday reversed a Missouri district court’s grant of summary judgment for a group of real estate companies relating to copyright infringement claims brought by an architect over floorplans. While the appeals court said that another defense might well be available to the companies, the text of the statute, the broader statutory context, and the legislative history all suggest that “floorplans” were not intended to be encompassed by Section 120(a) of the U.S. Copyright Act.

Most commentators agree that Google v. Oracle is the most important copyright decision of the last 25 years (since Campbell v. Acuff-Rose Music). But what if the Court got it wrong?  The Court has not always done well with issues of technology (the Sony v. Universal “Betamax” case being an exception), and the majority decision in Google v. Oracle appears to be more of the same. For many reasons, the powerful dissent from Justices Thomas and Alito may be the better opinion.

On Monday, the U.S. Supreme Court handed down a ruling that still has many in the intellectual property world reeling—and not just copyright practitioners. The Court found a way to both accept without examination the Federal Circuit’s holding that the declaring code copied by Google was copyrightable and to reverse the Federal Circuit’s ruling in favor of Oracle, explaining that Google met the fair use exception to copyright law. The Court did this in part by asserting that computer programs are different when it comes to copyright protection, and further from “the core of copyright” than other kinds of works.

On Friday, April 2, the United States Court of Appeals for the Second Circuit issued a Summary Order affirming a district court’s finding that the Metropolitan Museum of Art’s use of a photographer’s photo on its website to illustrate a museum exhibit constituted a fair use. The photo was taken by Lawrence Marano in 1982 and depicted Eddie Van Halen playing his iconic “Frankenstein” guitar. The Metropolitan Museum featured the photograph on its website as part of an exhibit of rock n’ roll instruments. Marano initially brought his complaint against the museum in the United States District Court for the Southern District of New York in 2019, and the court dismissed it in 2020 for failure to state a claim, “finding that Marano had ‘failed to show why the Met’s use of [the Photo] is not protected by the fair use exception.’”

In characteristic form, the Supreme Court has once again managed to blow it in another intellectual property case. This time, the Justices blessed Google’s copying of Oracle’s code and called it fair use despite the fact that Google copied that portion of the Sun Java API that allowed programmers to use the task-calling system that was most useful to programmers working on applications for mobile devices. In the infinite wisdom of the Supreme Court, the copying of this code was found transformative because Google only used it to circumvent the need to license Java from Oracle with respect to Android smartphones. Of course, that isn’t exactly how the Supreme Court characterized it, but make no mistake, that is what they decided.

The U.S. Supreme Court this morning found Google’s use of Oracle’s Java application programming interface (“API packages”) a fair use as a matter of law, with Justices Thomas and Alito dissenting. The decision reverses a 2018 Federal Circuit ruling in favor of Oracle. Google appealed that decision to the Supreme Court in January 2019, and three attorneys made arguments to the High Court in October 2020: Thomas Goldstein of Goldstein & Russell argued for Google; Joshua Rosenkranz of Orrick argued for Oracle; and Deputy Solicitor General Malcolm Stuart argued on behalf of the U.S. Government. Although the justices’ questioning at that hearing seemed skeptical of Google’s arguments, it also revealed that the Court wanted to avoid upending industry practices in computer programming.