WASHINGTON (CN) — The Supreme Court agreed Monday to hear a copyright dispute over an Andy Warhol work that will have the justices deciding whether the meaning of art can factor in the defense of its fair use.
Under the Copyright Act, the public can make “fair use” of copyrighted content without infringing on the copyright. One of the factors used to determine if copyrighted content is being used under these terms is the purpose and character of the use. The case before the court asks if works that use source material but convey a different meaning or message from the original can be considered “transformative” and therefore not infringe on the copyright.
At the center of the case lies American pop art artist Andy Warhol’s Prince Series which uses a black-and-white photograph of the musician Prince taken by Lynn Goldsmith. Vanity Fair commissioned Warhol to create an image of Prince for a magazine article. Warhol then used Goldsmith’s original image to create a set of portraits commenting on celebrity and consumerism. The Prince Series has been displayed in museums, galleries and other public venues since 1984.
When Prince died in 2016, Conde Nast published a tribute with one of Warhol’s images on the cover of Vanity Fair. Goldsmith threatened to sue if she was not paid a substantial sum of money for the use of her original photograph, leading the Warhol Foundation to sue her for a declaration of non-infringement. Goldsmith then countersued the foundation for copyright infringement.
A district court granted summary judgment on the fair-use defense, finding that the Prince Series was transformative because it communicated a different meaning and message than Goldsmith’s original photograph. The Second Circuit reversed last year, steering the case toward the high court.
The Warhol Foundation warned that the Second Circuit’s ruling “threatens a sea-change in the law of copyright.”
“The decision below will have drastic and harmful consequences for free expression,” Roman Martinez, an attorney from Latham & Watkins representing the foundation, said in his petition to the Supreme Court. “The Second Circuit’s rule chills artistic speech by imposing the threat of ruinous penalties on artists who must predict — ex ante — whether their new work will be deemed too ‘recognizable’ to merit fair use protection. By the same token, it may now be unlawful for collectors to sell — and museums to display — a large swath of works of art that derive inspiration from other works without fear of draconian consequences.”
Monday’s grants from the court also included challenges over the commerce clause out of California and a capital sentencing case from Arizona.
A California law known as Proposition 12 bans the sale of pork in the state unless it comes from pigs housed with space allowances. The law conflicts with how most pigs across the nation are raised. Most commercially bred female pigs are not housed with 24 square feet of space per sow, and farmers usually keep sows in individual pens that do not comply with the strict law between weaning and confirmation of pregnancy for health and business reasons.
While California accounts for 13% of the nation’s port consumption, the state does not raise many pigs, leaving it to import over 99% of its pork. Therefore, the surrounding states supplying California's pork argue that Proposition 12 violates the U.S. Constitution's commerce clause.
In the third case, John Montenegro Cruz was convicted of capital murder and sentenced to death in 2005. During his trial, the prosecution placed his future dangerousness at issue. Cruz was unable to inform the jury that he was parole-ineligible before they sentenced him to death. He sought postconviction relief drawing on new precedents but the Arizona Supreme Court denied his claim. The case will ask the justices to review the state high court’s ruling that Arizona law precluded postconviction relief.
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