Oh Look, Here's Some More Culture Being Canceled, Now Thanks To The Second Circuit

This decision, Andy Warhol Foundation for the Visual Arts v. Goldsmith, came out only a few weeks ago, yet before the Supreme Court ruled in Google v. Oracle. In light of that latter decision it's not clear that this one is still good law. Then again, it's not clear it ever was.

The decision is the latest by a Court of Appeal eviscerating fair use. I recently wrote about the Ninth Circuit's ruling in Dr. Seuss Enterprises v. ComicMix, which also undermined fair use. To be fair, this latest one is perhaps a little less egregious. In this case, for instance, the copyright holder the court ruled in favor of is still alive while the defending party (referred in the decision as AWF) is the successor of someone who is dead. Whereas in the Dr. Seuss case it was the other way around, with the court going out of its way to let the successor to a dead person's copyrights stick it to a live creator trying to make new works the dead person was never going to make for any number of reasons, not the least of which being that he's dead.

But to call this decision less egregious is really more of a statement of how awful the Dr. Seuss case was, and not really any sort of compliment. Like the other decision, the implications of this one are just as dire.

For the basic background, the opening paragraph of the decision sets forth the basic facts (or you can read Mike's writeup about the District Court ruling two years ago):

This case concerns a series of silkscreen prints and pencil illustrations created by the visual artist Andy Warhol based on a 1981 photograph of the musical artist Prince that was taken by Defendant-Appellant Lynn Goldsmith in her studio, and in which she holds copyright. In 1984, Goldsmith’s agency, Defendant-Appellant Lynn Goldsmith, Ltd. (“LGL”), then known as Lynn Goldsmith, Inc., licensed the photograph to Vanity Fair magazine for use as an artist reference. Unbeknownst to Goldsmith, that artist was Warhol. Also unbeknownst to Goldsmith (and remaining unknown to her until 2016), Warhol did not stop with the image that Vanity Fair had commissioned him to create, but created an additional fifteen works, which together became known as the Prince Series. [p. 3]

Prince's death in 2016 seems to have been what precipitated Goldsmith's discovery of the additional prints, because, as the decision later explained, it set in motion a chain of events that led to it.

On April 22, 2016, the day after Prince died, Condé Nast, Vanity Fair’s parent company, contacted AWF. Its initial intent in doing so was to determine whether AWF still had the 1984 image, which Condé Nast hoped to use in connection with a planned magazine commemorating Prince’s life. After learning that AWF had additional images from the Prince Series, Condé Nast ultimately obtained a commercial license, to be exclusive for three months, for a different Prince Series image for the cover of the planned tribute magazine. Condé Nast published the tribute magazine in May 2016 with a Prince Series image on the cover. Goldsmith was not given any credit or attribution for the image, which was instead attributed solely to AWF.

It was at this point that Goldsmith first became aware of the Prince Series. In late July 2016, Goldsmith contacted AWF to advise it of the perceived infringement of her copyright. That November, Goldsmith registered the Goldsmith Photograph with the U.S. Copyright Office as an unpublished work. [p. 11]

There's plenty wrong with this decision. A lot of what's wrong is with the decision itself, but even where the decision didn't get the law wrong, it shows what is wrong with the law.

As far as the decision itself, one of the most prominent problems is its analysis of the four fair use factors, particularly on the question of whether the Warhol prints were transformative. Like the Ninth Circuit, here the Second Circuit tied itself in knots, "clarifying" [p. 18] binding precedent in that circuit (Cariou v. Prince, by focusing more heavily on the five prints that hadn't been cleared as fair use instead of the 25 that were [p. 19-20]) to decide it wasn't. Some of that knot-tying:

Which brings us back to the Prince Series. The district court held that the Prince Series works are transformative because they “can reasonabl