“What’s Wrong and What’s Missing in the SG’s Amicus Brief in Andy Warhol Foundation v. Goldsmith”
Andy Warhol Foundation v. Goldsmith promises to be an important precedent on fair use in copyright (itself an important area of the law), but I’m sorry to say I haven’t been following it closely. Fortunately, Prof. Pam Samuelson (Berkeley), one of the leading senior scholars of copyright law in the country, and her colleague Prof. Mark Gergen put together this very interesting analysis, which I’m delighted to be able to pass along:
The Solicitor General (SG) of the U.S. has long had a reputation for excellent advocacy, considerable influence, and a high success rate with the Supreme Court when it files amicus curiae briefs in private litigant cases, so much so that the holder of this position is often said to be “the Tenth Justice.”
One of us (Samuelson) has a work-in-progress about the mixed record of success that the SG has had in copyright cases, especially when it comes to substantive interpretations of that law’s provisions. In last year’s Google v. Oracle case, for example, the Supreme Court decided that Google’s reimplementation of parts of the Java API was fair use as a matter of law, which was a strikingly different conclusion than the SG offered in its amicus briefs in support of Oracle. The same has been true for the SG’s record in several other copyright cases in recent decades.
It wasn’t clear until August 15, 2022, whether the SG would file an amicus brief in the most recent copyright case to come before the Court, Andy Warhol Foundation v. Goldsmith. Since the mid-1980s, the SG has filed amicus briefs in 16 of the 27 (60%) private litigant cases, so it wasn’t a given that the Goldsmith case would attract an SG brief.
The Solicitor General (SG) Elizabeth Prelogar did, however, file an amicus brief asserting that the Foundation’s commercial licensing of a colorful Warhol print of the singer Prince for the cover of a special issue of a Conde Nast magazine was not a fair use of Lynn Goldsmith’s copyrighted photograph of the singer.
After reading this brief and talking over the issues in the Goldsmith case, we decided that the Volokh Conspiracy readership would find it interesting to get our take on the SG’s arguments. We find the SG’s brief troubling in several respects. One has to do with the SG’s effort to reframe the question presented in Goldsmith. A second relates to the SG’s inattention to a license that existed when Warhol created a series of works based on Goldsmith’s photograph. A third concerns the SG’s failure to explore the consequences likely to flow from rejecting the Foundation’s fair use defense. Fourth, the compromise the SG proposes—allowing the Foundation to retain copyright but denying it the right to license certain uses—is infeasible as a matter of law. For these reasons, we think the SG’s brief is unlikely to be persuasive with the Justices in Goldsmith.
The SG Tries to Reframe the Issues
The SG contends that the validity of the Foundation’s copyrights in a series of sixteen Warhol prints and drawings of Prince is not at issue in the lawsuit before the Court. In her view, the only issue is whether the Foundation’s commercial licensing of one image to a magazine infringed Goldsmith’s copyright. This is incorrect.
The litigants are fighting about the legality of Warhol’s creation of sixteen works of art depicting Prince, not just one relatively recent licensed use of one image. The Foundation contends that Warhol’s prints and drawings based on Goldsmith’s photograph of the singer are transformative fair uses because these works of art have a new meaning or message than the photograph and operate in totally different markets than Goldsmith’s photograph. Two Supreme Court precedents state that having a new meaning or message makes works transformative, a consideration that weighs in favor of fair use claims.
Goldsmith contends that Warhol’s works are not transformative because they are recognizably similar t
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