News Tip: Ruling Against Warhol Makes Modest Effort to Clarify Fair Use Doctrine, Copyright Expert Says

News Tip: Ruling Against Warhol Makes Modest Effort to Clarify Fair Use Doctrine, Copyright Expert Says

The Supreme Court on Thursday ruled in favor of photographer Lynn Goldsmith in a copyright infringement case involving artist Andy Warhol’s use of Goldsmith’s photos of Prince. Duke University law professor Christopher Buccafusco is available to comment.

“On its face, the Supreme Court’s ruling is a modest effort to clarify fair use doctrine and to cabin what it sees as excessive consideration of aesthetics and authorial intention in copyright law,” says Duke University professor Christopher Buccafusco, a scholar of creativity, innovation markets, and intellectual property law. “The court tries to focus on the similarity of uses – illustrating Prince – rather than any dissimilarity of aesthetic meaning or intent.”

“The court is clearly concerned that a broad ruling in favor of Warhol would have imperiled traditional contours of copyright law, including the rights of novelists to license their books for film adaptations.”

“The majority opinion by Justice Sotomayor and the dissent by Justice Kagan have a surprisingly aggressive tone, considering that these justices typically get along well and tend to reserve their more rancorous comments for more socially salient issues.”

“Importantly, the court did not go as far in Goldsmith’s direction as some commenters worried that a textualist decision might. The court left the ‘transformativeness’ test largely intact, even though it isn’t technically written into the statute.”

“The major difference between the majority and the dissent is the object of the ‘transformativeness’ inquiry. For the majority, the question is about Warhol’s ‘use’ of the image to illustrate what Prince looked like, while for the dissent the question is about Warhol’s ‘work’ on its own.”

Christopher Buccafusco, the Edward & Ellen Schwarzman Distinguished Professor of Law at Duke Law School, writes about evolving issues in copyright, patent and trademark law, including issues related to music, art and design.

For additional comment, contact Christopher Buccafusco at:

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