"I Could Never Take the Place of Your Man" (Or At Least A Photo of Him)
Prince, Fair Use, and How To Protect Yourself From Copyright Infringement
When I started out in marketing (WAY before 1999), walking to and from the office barefoot over miles of barren terrain1 with no cell phone, the world of copyrights was much simpler. But social media, the internet, the ease of copying and claiming others’ works without attribution, the sheer volume of content that makes it much more difficult to catch an infringer, and the “blurred lines” of what qualifies as “creation” have made copyrights a total minefield.
This minefield is heavily impacted by inspiration and influence, acknowledgement, creativity, and even the business world. And who better to wander through the field than the U.S. Supreme Court, which is considering yet another copyright issue: Andy Warhol Foundation v. Goldsmith, 21-869, with a ruling expected by late June.
The key facts of the case are as follows:
Before reading the specifics, check out NPR.org to see the images of the photo in question, and the subsequent artwork created by Andy Warhol. Trust me, it will help as you consider the positions below.
In 1981, Lynn Goldsmith, a well known photographer, took a number of photos of Prince that were commissioned for use in a Newsweek profile related to the release of Prince’s album, Controversy.
The particular photo in question, a studio shot, was not used in the final publication, and Goldsmith kept the rights associated with the photo.
In 1984, Prince became a mega star after the Purple Rain movie and soundtrack were released. Vanity Fair commissioned Andy Warhol, of Campbell’s Soup can and Marilyn Monroe painting fame, to create an illustration for the new profile using the studio photo Goldsmith took in 1981 as source material. Vanity Fair paid Goldsmith a $400 licensing fee to use the studio photo for one issue of Vanity Fair.
Warhol, who it is believed might have known nothing of the details of the licensing arrangement, went on to make millions from selling paintings and silk screens of the illustrations of Prince, a practice that his Foundation continued after his death.
While some argue that the dispute between the photographer and the Warhol Foundation should have been limited to the four corners of the licensing agreement, it instead made its way through the courts as a question of “fair use.”2
When You Were Mine: How A Creator Owns Their Work
Before we go further, let’s create a level playing field of the basics of copyright.
A copyright is a protection provided by U.S. law to the authors of "original works of authorship" fixed in any tangible medium of expression. This might be a song, sound, painting, photograph, story, article, computer code, or even an architectural plan. Even this post is protected by copyright law, meaning it would infringe my rights if someone plagiarized it. (See www.copyright.gov for additional information.)
Copyright protection lasts for, generally, the creator’s life plus 70 years, and can be longer depending on the circumstances.3 It is a right that can be sold or licensed to other owners, valued as an asset, donated to charity, and can even transfer with an estate. (See www.copyright.gov for more.)
There are two levels of copyright protection: (1) the natural copyright that exists automatically when you create the work (even if you never filed or registered anything), and (2) a registered copyright, where you take additional steps to register the work to establish a public record of the copyright, and create a number of more readily enforceable and additional rights in the event that infringement is determined.
“The Rewards We Share Will Be Based On What’s Fair” from Peace (2:37 seconds in): Fair Use Under the Copyright Act
Under the Copyright Act, which may protect both registered and unregistered trademarks, the copyright owner has the exclusive right to reproduce, adapt, distribute, publicly perform, and publicly display the work.
The main4 and most litigated exception to copyright protection is “fair use.” This exception includes instances where criticism, comment, news reporting, teaching, scholarship, and research include parts of the work or utilize the work. This is why book reviews that quote the book do not typically violate copyright, and how so many book discussion guides can be created by people who didn’t write the book. In addition, it allows teachers to use a wide range of materials in their classrooms. Finally, in its more interesting forms, fair use is what allowed the 2 Live Crew to use Roy Orbison’s Pretty Woman in what was determined to be a parody song (don’t worry, the link is to the “clean” version in case you are listening at the office), and how sometimes copying APIs is considered fair use (Google v. Oracle, 2021).
There is a four part test that courts use to determine fair use, which includes:
Nature of the copyrighted work, meaning that if it’s a reference article or other less “creative” source like a biography, fair use is more likely to be applied than it would be if the original source was highly creative and imaginative.
Amount and substantiality of the portion of the work used. Here the court looks at the quality and quantity of the original work used.
Effect of the use upon the potential market for or value of the copyrighted work. This is where the court determines how much the original copyright owner is harmed by the new work.
Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes. This is not a black line rule and is very fact specific. Also, the use can be permissible if something is a transformative work, meaning “those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.”
And this is where…
The Controversy Begins
The current Supreme Court case hinges on the matter of transformative work and how art created using other art should be treated under the law. And this case is also what led us to learn the simultaneously awesome and disturbing fact that Justice Clarence Thomas is a Prince fan. Apparently sometimes it DOES snow in April.
Same Page, Different Book: A decision supporting the copyright of the photographer
If the court finds for the photographer, Goldsmith, and deems Warhol an infringer, commentators are concerned that it could chill artistic expression. According to Justice Elena Kagan, “The purpose of all copyright law is to foster creativity,” she said. “Why shouldn’t we ask if the thing we have here is new and entirely different.” Chief Justice Roberts focused on the different purpose aspect of transformative work, stating "It's not just a different style. It's a different purpose. One is commentary on modern society. The other is to show what Prince looks like."
Many fear (as outlined in an amicus curiae brief on behalf of the Warhol Foundation) that “tightening of the fair-use doctrine would have a detrimental effect on the creative process. In effect, artists and content creators, fearing costly litigation, may abstain from using or referencing copyrighted work and thus limiting cultural exchange and discourse.”
Nothing Compares to You: A decision supporting the Andy Warhol Foundation
If the court finds for the Andy Warhol Foundation, many argue that the value of any copyright is greatly diminished, making it virtually impossible for artists to live from the ongoing value of their work. Examples of the significant downstream impacts include: the unfettered ability to remake a movie without owning any of the rights and just changing the ending, using an individual’s image in advertising without their permission, and other undesirable outcomes.
Let’s Go Crazy: Why DJs, sampling, cover bands, TikTok, Pinterest, and books based on other books may not infringe a copyright.
Music Examples
As for cover bands and DJ sets, it is industry standard for venues to purchase blanket licenses that allow copyrighted songs to be played at the location licensed. There are even similar concepts in business, where companies buy “collective” licenses to ensure that employees around the company can copy and share copyrighted materials without creating a litigation nightmare for the company.
And when artists are sampling other copyrighted materials in their songs, typically, they have licensed that material or it is so “short” and inconsequential to the new work that it is considered “de minimis” - though the standard for the latter is different in nearly every jurisdiction and often takes the new song down the rabbit hole of whether it is “substantially similar” to the sampled song.
Finally, what about that little snippet of music playing in the car in your independent movie? Or when you briefly sample an unlicensed line from a song or movie in your podcast? There is no guarantee that these uses will be considered de minimis, so do you want to take that gamble and risk an infringement suit?
Social Media Examples
If a TikTok user posts a video with music from within the app, TikTok has already licensed the content for use on the app only. But if that same individual applies music that they get from another source, they are likely violating the copyright of that artist. Conversely, since it cannot license the universe, Pinterest offers creators an ability to apply to have their copyrighted material removed, and can lead to lifetime bans for users who repeatedly receive complaints of infringement via Pinterest.
Written Work Examples
For books, after the copyright has expired, the work enters the “public domain” which is like “open source code” for art. This is why books like Pride and Prejudice and Zombies are permitted under the law.
Delirious from the complexity of copyrights? Here’s what you can do to avoid issues.
First off, and just like your third grade teacher told you, don’t copy other people’s work or use it in your own publications or social media posts. If you do want to use something, get a proper license for it.
If you’ve created something that you want to protect, keep records of the creation of the work that illustrate the date of publication, the date of creation, versions, and supporting evidence of the idea if it’s available, etc.
If you want to further protect the work and create a foundation to better protect your interests, register the work with the U.S. Copyright Office, which generally costs between $45 and $65.
Finally, be diligent in enforcing your rights. Send a “cease and desist” letter, which is simple to create (there are lots of good samples available on the internet), to put any infringers on notice and to further establish your ownership and practice of protecting your intellectual property. Hopefully you won’t get a cease and desist letter for infringing someone else’s copyright on their sample cease and desist letter!
Also, the agencies established to enforce and protect copyrights understand how difficult it is for individuals and small businesses to protect themselves. Thus, resources like the Copyright Claims Board (for small claims) and https://www.stopfakes.gov/welcome are also available.
Sign of the Times: What is a copyright really worth?
How much is a copyright even worth? Most copyright disputes end with a “cease and desist” letter and an apology, or settle because it is too expensive and too time-consuming to litigate them. But more importantly, do people even have an appreciation for copyrights? An entire generation has grown up with Pinterest, TikTok, and other social media that encourages, or at least enables, them to “repost” and “share” copyrighted materials. And before that, rappers and DJs were already sampling music, and Weird Al was, well, weird. Is there any chance that copyrights will continue to establish value for creators at all? And if not, what should follow to ensure that original artistic creation does not languish? What will keep the creator’s work from being stolen at every turn?
Andy Warhol, who was a notorious appropriator (often without legal rights), started the fight that led to this case. The Warhol Foundation preemptively filed the complaint against the photographer (Goldsmith) to seek declaratory judgment that the work fell within the “fair use” exception, probably because the Warhol Foundation knew they had a problem with many of his profitable works. As Prince would say, “I guess he should have known, by the way [he] parked [his case] sideways that it wouldn’t last…” And in matters of transformative art, the new work should not last under “fair use” without something more than the application of a thin layer of paint and a famous artist whose “brand” claims all of the appropriated work is simply social commentary.
What do you think about the case and what should be decided? Leave a comment and share your thoughts with the community.
Oh wait, that was my parents’ description of going to school.
A Federal District Judge in New York ruled that Warhol’s work created something new, just like so many of Warhol’s other works, that was clearly within the “fair use” exception of copyright protections. He granted the Andy Warhol Foundation’s Motion for Summary Judgment. The Second Circuit Court of Appeals vacated the district decision and remanded the case, based largely on their belief that the judge overplayed his role as judge and instead acted like an art expert, and ruling that a secondary work must, at bare minimum, impose more than simply the next artist’s style on the primary work in order to qualify as fair use. In early 2022, the Supreme Court granted certiorari, which means that the majority of justices agreed to hear the case.
For works created after 1978, works created by an individual creator are protected for 70 years after his or her death, joint creators are protected for 70 years after the last joint creator dies, and works for hire, anonymous works, or those published under a pseudonym are protected for 95 years from publication or 120 years from creation, whichever is longer. (See www.copyright.gov for more.)
Other exceptions include expiration of the copyright, first sale doctrine for libraries and other organizations to share their owned copy of a protected work, and other specific rules.
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I feel like Vanilla Ice coulda really benefited from this article back in the day....