Legal Docket: A copyright fight

MARY REICHARD, HOST: It’s Monday, October 24th and you’re listening to The World and Everything In it from WORLD Radio. Good morning! I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. It’s time now for Legal Docket.

Today, we focus on one oral argument heard this month at the U.S. Supreme Court.

It involves two celebrities who are no longer with us. Music artist Prince whose music you heard at the start and visual artist Andy Warhol.

Prince died in 2016. Warhol died 29 years earlier, in 1987.

REICHARD: The years-long legal battle here is between Warhol’s estate and rock ‘n roll photographer Lynn Goldsmith.

Goldsmith took a series of photographs of Prince in 1981, before his rise to world wide fame.

Three years later, Prince became a superstar with the album Purple Rain. Vanity Fair magazine wanted to do a feature piece on Prince, so it paid Goldsmith for the rights to one of her photos.

Then the magazine commissioned Andy Warhol to create an illustration based on that photograph. Vanity Fair published his creation titled “Purple Fame” in 1984.

EICHER: So far, so good, as far as Goldsmith knew.

But years later, Goldsmith found out something else: that Warhol had made a series of images from her photo.

And that’s a problem.

Because she’d agreed for him to use only one. She also found out that Vanity Fair’s parent organization paid the Warhol estate $10,000 to use his series of silk screen images.

But with no credit to Goldsmith and, crucially, no money to Goldsmith. She says that violates her copyright. And litigation ensued, starting in 2017.

Her lawyer, Lisa Blatt, at the Supreme Court:

BLATT: Indeed, Warhol got the picture only in 1984 because Ms. Goldsmith was paid and credited. Petitioner responds Warhol is a creative genius who imbued other people's art with his own distinctive style. But Spielberg did the same for films and Jimi Hendrix for music. Those giants still needed licenses. Even Warhol followed the rules. When he did not take a picture himself, he paid the photographer. His foundation just failed to do so here.

REICHARD: In other words, Warhol’s estate just didn’t follow the rules.

But the lawyer for Warhol’s estate, Roman Martinez, told the court, oh, yes, we did:

MARTINEZ: Both courts below agreed and Goldsmith doesn't dispute that Warhol's Prince Series can reasonably be perceived to convey a fundamentally different meaning or message from Goldsmith's photograph. The question in this case is whether that different meaning or message should play a role, any role, in the fair use analysis. Our answer is yes. Warhol's transformative meaning puts points on the board under Factor 1 of the four-factor balancing test.

That would be the fair-use analysis. Courts have to consider four factors, as he says, to see whether a follow-up work is a fair use under the law.

Only two of the four factors are really relevant to this case. Factor one is the purpose and character of the follow-up work.

His lawyer argued Warhol’s image is about the nature of celebrity.

MARTINEZ: Its meaning or message was about the dehumanizing effects of celebrity as applied to Prince. The Goldsmith photograph, as she herself said below, she was testifying as to what she was capturing was a photo- realistic portrait of Prince that showed him as fragile and vulnerable.

And there’s the distinction: transformative use.

But is that transformative enough to count as fair use and therefore not an infringement of copyright?

Blatt for the photographer said absolutely not:

BLATT: Petitioner's colloquial definition of the word "transformative" is too easy to manipulate. The act also gives creators and not copiers the right to make derivative works that transform the original into new ones with new meaning. If Petitioner's test prevails, copyrights will be at the mercy of copycats. Anyone could turn Darth Vader into a hero or spin off "All in the Family" into "The Jeffersons" without paying the creators a dime.

Blatt’s brief pointed out how similar the Warhol painting is to the photograph: the angle of Prince’s face; an eye partly covered with his hair; the shadows created from the light Goldsmith chose for the photo shoot.

If the justices could ever be said to be having a good time ferreting out these arguments, it was this case. They went to town with the hypotheticals, as if to pay tribute to their recently retired friend Justice Stephen Breyer, the king of the hypothetical.

You’ll hear Justice Clarence Thomas mention “Orange Prince.” That’s the particular Warhol creation from the series published without credit to Goldsmith.

THOMAS: The -- let's say that I'm both a Prince fan, which I was in the '80s, and --

KAGAN: No longer?

THOMAS: Well – -- so only on Thursday nights. But let's say that I'm also a Syracuse fan and I decide to make one of those big blowup posters of Orange Prince and change the colors a little bit around the edges and put "Go Orange" underneath. Would you sue me for infringement?

MARTINEZ: -- would the -- would the Warhol foundation sue you if you were to do that?

THOMAS: Well, you're their lawyer, so --

MARTINEZ: I -- I can't comment on whether we would sue you. But I think the question of whether that would be fair use, I mean, it sounds like you're asking me to consider that there's, like, a different meaning or message associated with the work. I don't think that's the only part of the -- the inquiry. I think that everyone recognizes that at Factor 1, the ultimate goal here is to figure out whether the follow-on user is doing something sort of creative that matters.

THOMAS: Oh, I'm just waving it in the -- I'm waving it during the game with a big Prince face on it, “Go Orange.”

MARTINEZ: Yeah. I -- I think that in -- in circumstances like that, it's very unlikely if it was just one of you that -- that -- that anyone would see you.

THOMAS: Oh, no, no. I'm going to market it to all my Syracuse buddies. (Laughter.)

MARTINEZ: So I think, in that case, the -- a court would -- would quite reasonably look at that and say that this is not the kind of -- of productive creativity promoting use that is -- is --THOMAS: So, in other words, you would sue me? (Laughter.)

MARTINEZ: I would not sue -- I – I -- I think that -- I think that you would probably have a very weak case against me, Your Honor.

Well, Justice Elena Kagan got back to serious.

KAGAN: Indeed, we expect Hollywood, when it takes a book and makes a movie, to pay the author of the book. But I think moviemakers might be surprised by the notion that what they do can’t be fundamentally transformative. I mean, mostly movies are tons of new dialogue, sometimes new plot points, new settings, new characters, new themes. You would think new meaning and message. So why is it that we, you know, can’t imagine that Hollywood could just take a book and make a movie out of it without paying?

Martinez answered that the usual book-to-movie transition doesn’t inherently change the meaning or message of the book. More than that, the natural follow-up work for a successful book is a movie. That’s factor four of fair-use analysis: the potential market for the original work.

Chief Justice John Roberts wasn’t finished with the hypotheticals:

ROBERTS: Mr. Martinez, let -- let's suppose that I think you can do this with technology instead of the mood that Prince is conveying in the Goldsmith photograph. You put a little smile on his face and say this is a new message. The message is Prince can be happy. Prince should be happy. Is that enough of a transformation? The message is different.

MARTINEZ: I -- I think you would certainly have to consider the new meaning or message as part of the inquiry.

So, he’s saying yes. Martinez did think that would be transformative enough to count.

But Justice Amy Coney Barrett thought maybe Martinez was doing too much emphasizing one factor over another. (Remember, factor one is the purpose and character of the follow-up work. Factor four is the potential market value of the original work.)

BARRETT: …it seems to me like your test, this meaning or message test, risks stretching the concept of transformation so broadly that it kind of eviscerates Factor 1 and puts all of the emphasis on Factor 4. I mean, when you've been asked about book to movie and -- and -- and, you know, songs, you keep flipping to Factor 4. So, if a work is derivative, like Lord of the Rings, you know, book to movie, is your answer just like, well, sure, that's a new meaning or message, it's transformative, so all that matters is 4?

MARTINEZ: I don't think that Lord of the Rings is -- has the -- has a fundamentally different meaning or message, but I would have to probably –

BARRETT: The movie?

MARTINEZ: -- but I would probably have to learn more and read the books and see the movies to give you a – (Laughter.) - definitive judgment on that. And I recognize reasonable people could probably disagree on that.

Justice Samuel Alito asked Martinez to get into the nuts and bolts:

ALITO: How is a court to determine the purpose of meaning, the message or meaning of works of art like a photograph or a painting? Should it receive testimony by the photographer and the artist? Do you call art critics as experts? How does a court go about doing this?

Martinez answered, just as in another copyright dispute the high court decided back in 1994.

In that case, the rap group 2 Live Crew made a parody of Roy Orbison’s 1964 hit “Oh, Pretty Woman.” They titled their rendition “Pretty Woman.” Let’s listen —and we will let you do so on our understanding of fair use

AUDIO: [MUSIC]

2 Live Crew won because the Supreme Court ruled that the commercial character of the group’s parody was just one element to consider. There were others. Market harm, for example.

But that’s music, this case deals with photography. Besides, Blatt countered, that her client’s photo isn’t parody.

But the justices really didn’t seem to buy the idea that a new meaning, by itself, is enough to constitute fair use. They seemed to be looking for something else.

Two things we know: Artists need to generate income from their work. And two, there’s nothing new under the sun.

And that’s this week’s Legal Docket.

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