Author: David Newhoff

David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

In hearing with Big Tech, senators make headlines, but can they make headway?

On Wednesday, January 31, the Senate Judiciary Committee presided over a dramatic hearing titled Big Tech and the Online Child Sexual Exploitation Crisis. The gallery was filled with family members representing young victims of sexual exploitation, drug-related deaths, and adverse mental health effects of social media that can lead to chronic illness and suicide. The witnesses who provided testimony and faced often tense grilling by senators included Mark Zuckerberg, CEO of Meta; Linda Yaccarino, CEO of X Corp; Shou Chew, CEO of TikTok; Evan Spiegel, CEO of Snap Inc.; and Jason Citron, CEO of Discord Inc.

By now, many highlights have been published in the press and on social media, including Senator Graham’s opening salvo telling the witnesses they “have blood on their hands.” There was also Sen. Hawley’s rhetorical grilling of Zuckerberg, asking whether he had personally created a fund out of his billions to compensate any families. And then, there was Sen. Whitehouse, who stated quite simply, “We’re here because your platforms really suck at policing themselves,” thereby summarizing a bipartisan sentiment that has produced five bills passed by this committee alone.

Dramatic moments aside, though, what, if anything, will get done this year? As committee members themselves noted throughout the hearing, this is a road much travelled, and little has been accomplished, either through legislation or as voluntary measures by the platforms, to address the kind of harms at issue. Big Tech’s “tobacco moment” was supposed to be in 2021 when key witnesses and whistleblowers testified that, yes, social media platforms can cause harm to users, are designed to be addictive, and that industry executives put revenue ahead of safety.

Notwithstanding Senator Cruz and other Republicans blasting Mr. Chew over the valid but separate matter of TikTok’s alleged obligations to censor and/or provide information to the Chinese Communist Party, nearly every senator reiterated a theme of rare unanimity on the central issues before the committee. There is, of course, no political downside for either party when the issues involve children, sexual exploitation, suicide, and fentanyl, and the target is Big Tech. There should be no doubt that the intent to legislate is real, but several senators alluded to the platforms’ lack of cooperation and their lobbying power to avoid federal intervention.

For instance, among the bills cited and not wholly supported by online platforms, the SHIELD Act would criminalize the nonconsensual distribution of intimate visual depictions of persons—a subject that has been on the Hill since Rep. Speier first introduced a bill in 2015. Now, with advancements in AI tools that can be used to generate synthetic sexual material using the likeness of a real person (e.g., what happened to Taylor Swift), the issue is more complicated. And by my count, there are at least two House bills responding to AI as a method to achieve potentially more harmful results than the distribution of existing recorded material.[1]

Presumably, Congress will need to harmonize legislative efforts where there appears to be some redundancy in the intent to mitigate harm based on the nature of certain material and/or the means of production and distribution of that material. Moreover, the various issues raised in the hearing imply distinct forms of accountability (e.g., the design of a platform potentially harming mental health; the handling of material uploaded by users; or platforms being more transparent about negative effects).

In a future post, I will try to summarize all the proposed legislation designed to address specific harms caused or exacerbated by social media platforms. But one subject raised on Wednesday, and which must come first, is revision of Section 230 of the Communications Decency Act. As discussed here many times, Section 230 has been improperly read by the courts as a blanket immunity from civil litigation for online service providers, regardless of how irresponsibly the operators may address harmful material uploaded by a user of the platform.

Section 230 Front and Center

Sen. Graham declared that it’s time to repeal Section 230, while other senators were more moderated, alluding to revision of the law. Regardless, there should be little doubt that Congress supports the premise that online platforms must be subject to litigation to incentivize more effective cooperation in addressing various harms. Most immediately, revision of 230 must make clear that platforms are not exempt from court orders to remove material that is harmful to the aggrieved party.

One of the most infuriating aspects of misapplication of 230 to date is not simply that the platform is never liable for the harm (because it may not be), but that a platform can avoid complying with injunctive relief—often little more than having the basic decency to remove material that is shown to be harmful. As Sen. Whitehouse made clear, the court is the venue for determining liability and remedies, and several of his colleagues noted that it is simply absurd that one multi-billion-dollar industry is automatically excused from those procedures.

Thus, as a foundational matter, it seems essential that Section 230 is substantially revised to ensure that people, like the families represented at the hearing, can pursue legal action without having the court automatically dismiss the claim. Of course, sound reform of 230 must reject the rhetoric of some lawmakers, including Sen. Cruz, who have muddied the waters with unfounded and unhelpful allegations of platform political bias. If nothing else, alleged viewpoint bias is not a subject of Section 230, and if lawmakers really want to help the kids, they must remain focused on ensuring that a family can have its day in court.

So, as stated, we’ve been here before. Wednesday’s hearing provided a pretty good highlights reel, but let’s see if this year, it can finally lead to any tangible solutions.

[1] Preventing Deepfakes of Intimate Images Act, and the No AI FRAUD Act.

Jury finds Kat Von D tattoo does not infringe. But stand by.

Sedlik

Last Friday, a Los Angeles jury returned a verdict that celebrity tattoo artist Kat Von D did not infringe the copyright rights of photographer Jeff Sedlik when she made a tattoo that (it must be said) is strikingly similar to Sedlik’s portrait of Miles Davis. Sedlik filed a copyright infringement suit in response to Kat Von D reproducing an unlicensed copy of the photograph, tracing over printouts of the photograph, making social media posts that include the photograph, and tattooing the Miles Davis image onto the arm of Blake Farmer, a friend and colleague whom she did not charge for the tattoo.

Although this case is far from over, Kat Von D has been quoted in the press as saying, “I’m excited to be done. If we didn’t fight this, it would have done so much harm to an industry that’s already struggling.” I’ll comment below on the industry harm allegation, but Kat Von D’s celebrity status should not confuse anyone into believing that she is the party litigating on principle. Sedlik only filed suit—the first in his career—after Kat Von D refused to have a conversation in response to a letter about the use of the photograph.[1] Sedlik’s view is that artists should respect one another’s rights when it comes to preparing derivatives of each other’s works, a theme lately made clear in the outcomes in both AWF v. Warhol and in Graham and McNatt v. Richard Prince.

Not only will Sedlik appeal, but the results of last week’s trial imply errors by this court and a curious jury verdict because it is not clear that Judge Dale Fischer properly distinguished between questions of law (the court’s purview) and questions of fact (the jury’s purview). To clarify any misreporting in the press and/or social media posts, the jury did not find that the tattoo itself is fair use but found that four of the social media posts depicting Kat Von D working with Sedlik’s photograph to be fair use.[2] The tattoo itself was found by the jury to be non-infringing on the basis that it is not “substantially similar” to the photograph—a verdict that will make many a copyright watcher curious as to how, or why, this jury was instructed to consider the matter. “The question of substantial similarity should never have gone before the jury. That should have been decided as a matter of law.” Sedlik’s attorney, Robert Allen, stated. And probably with good reason.

Ordinarily, the court would separate the non-protected elements of a work (e.g., the facts of Davis’s likeness) from the expression created by the photographer (e.g., Sedlik’s explicit posing of Davis’s hand, lighting, and composition choices) and then determine whether the secondary work copies the expression in the original. This is not analysis performed by a jury. Moreover, in this instance, where there is evidence of copying (e.g., photographs of Kat Von D inking the tattoo with Sedlik’s photograph by her side), Ninth Circuit precedent holds that a substantial similarity test need not be performed at all in order to prove copying by inference. Then, of course, there is the commonsense factor that no reasonable person could look at the images side-by-side and not see that the tattoo copies the main expression in the photograph.

Sedlik photograph of Miles Davis and Kat Von D tattoo.
Sedlik portrait (1989). Kat Von D tattoo (2017)
Social post - Kat Von D copying Jeff Sedlik photo of Miles Davis
Social Media Post ~90,000 likes.

The fair use saga in this trial thus far also raises some questions, including Judge Fischer’s own fair use analysis before trial and the jury’s decision that the four social media posts are fair use. But because there is a lot to unpack, and because the jury found the tattoo itself to be non-infringing as a threshold question, I will leave fair use for a follow-up post.

Trials in the Court of Public Opinion

It is interesting that this case, Warhol, and the recent judgments for Graham and McNatt against Richard Prince all share common elements of fact and law, filtered through cultural perceptions that have little to do with either fact or law. Anecdotally, I would say that sympathies broke almost evenly between Lynn Goldsmith and the late Andy Warhol, both inside and outside the art community. Richard Prince does not earn much sympathy outside certain art salons, and that’s partly because appropriations like “New Portraits” are seen as lazy and uninspired, and because he personally makes strident declarations that piss off a lot of creators.

In a different light, Kat Von D is both popular and sympathetic, especially with her post-trial claim to be litigating on behalf of the tattoo industry, combined with her statement that this case has turned her off ever making another tattoo. I get why this will play well in the court of public opinion, but as a legal matter, the assumption that she was allowed to use Sedlik’s photograph is highly analogous to the assumptions made by Warhol and Prince, also using photographs to make unlicensed derivative works. And they both lost on questions relevant to Kat Von D’s defense.

For example, Von D is on record saying that she could have based the tattoo on any number of images of Miles Davis and didn’t need to use Sedlik’s photograph, meaning there was no justification for her unauthorized use—a concept that was at the forefront of the Warhol case. This militates against her claim that she is defending the industry in general. Although I believe Sedlik is correct on the law in this instance, Kat Von D’s allegation that licensing would cause significant harm to the tattoo industry is questionable, not least because Sedlik presented evidence that tattoo artists do license images.[3]  

As a hypothetical question, if Blake Farmer had presented Kat Von D with the Sedlik photograph and asked her to reproduce it on his arm, would it have been fatal to High Volage, and the entire industry, if she had to reply that she could ink Davis but not that specific image? To be clear, a tattoo artist is free to look at photographic portraits of a subject and then render her own drawing of that subject as a tattoo. If the tattoo artist is good, as indeed Kat Von D is, then the customer gets a quality tattoo of the subject he wants but not an expression belonging to another artist.

Perhaps most damming to Kat Von D’s claim to be defending the industry is the verdict itself. Although I expect the Ninth Circuit will be reversing a few findings in this case, any artist following this story should recognize that were this verdict to stand, it means nothing for tattoo artists in general. Just because one alleged copy is held to be non-infringing on the basis that it is not substantially similar to the plaintiff’s work, this predicts little to nothing about the next potential claim of infringement in the tattoo world, or for artists in any other media.[4]

So, Kat Von D’s declaration to have fought and won on behalf of tattoo artists everywhere is as misguided as it is prematurely announced. On the other side of the equation, Sedlik’s argument, not unlike Goldsmith, Graham, and McNatt, is that it is indeed detrimental to all artists when fellow artists working in any medium copy their work as if it is simply there to be taken. There will be more to say about this case. Stand by.

[1] Sedlik Complaint (Document 1).

[2] Redacted Verdict Form (Document 217).

[3] For example, tattoo “flash” includes images that are licensed.

[4] Also, I wouldn’t expect the same result in, say, a New York court.

Photo source by: korobskyph

Richard Prince “New Portraits” Show Was a Big Fair Use Error

Yesterday, New York federal judge Sidney Stein ruled that Richard Prince, one of the most famous appropriation artists in the world, infringed the copyright rights of photographers Donald Graham and Eric McNatt by using their works in the controversial “New Portraits” series. Prince and his co-defendant, gallery owner Lawrence Gagosian, are ordered to pay Graham and McNatt five times the sale price of Prince’s infringing canvases, plus unspecified expenses. Further, Prince is “enjoined from reproducing, modifying, preparing derivative works from, displaying publicly, selling, offering to sell, or otherwise distributing the” photographs belonging to Graham and McNatt.

The “New Portraits” canvasses sold for prices ranging between about $40,000 and $150,000, indicating that the combined awards will be substantially higher than maximum statutory damages in an outcome that highlights the significance of the Supreme Court decision in Andy Warhol Foundation v. Lynn Goldsmith. I think it’s fair to say that the over-expansive interpretation of “transformativeness” under the fair use factor one analysis is now settled, and independent creators—perhaps especially those who are not celebrities—will benefit as a result.

The “New Portraits” series stirred outrage in the Fall of 2014, when Prince and New York’s Madison Gallery first exhibited the 5’ x 6’ canvasses, the hearts of which were made by copying images that both amateurs and professionals had posted to Instagram. Subsequently, the show moved to the Gagosian Gallery, where the “Instagram series” continued to make headlines with the Prince canvasses selling to collectors for prices many found shocking considering that nearly the entire work being sold was somebody else’s photograph.

Opinions vary about the “New Portraits” series as an artistic statement, but the question of copyright infringement vs. fair use became clearer on May 11, 2023, when Judge Stein denied Prince’s motion for summary judgment (MSJ), and then the matter became even sharper about a week later with the Warhol decision. As the district court stated in May:

A close comparison reveals that Prince enlarged the images when he printed them onto the canvases, cropped portions of the photographs, added the Instagram frame, and included his own comments. But these alterations do not begin to approach those found to be transformative as a matter of law by the Second Circuit.

Even before Warhol, the district court found unpersuasive Prince’s shifting theories as to why his use was transformative. Arguing at the outset that the purpose of “New Portraits” was just “art and fun,” Prince later tried to hone his defense, averring that the series was a comment about social media and culture. Indeed, that commentary was present in the show—I said as much when the story was new—but that kind of commentary does not make the uses at issue fair uses.

As the district court stated in denying Prince’s MSJ, and then SCOTUS affirmed resoundingly in Warhol, the use of a protected work must express some “critical bearing” on the work used. With that clear finding in a Supreme Court case so obviously analogous to the “New Portraits” case, Prince could not have expected to prevail had he proceeded to trial. His canvasses titled Portrait of Rastajay 92 and Portrait of Kim Gordon express no comment of any kind about Graham’s Rastafarian Smoking a Joint or McNatt’s Kim Gordon 1 respectively.

“Phony fraud photographers keep mooching me. Why? I changed the game.”

– Tweet by Richard Prince, 2017 –

Photographers everywhere will celebrate this outcome, not only as a validation of their copyright rights, but also because Richard Prince himself is hardly modest about his appropriations or his presumed right to make them. Amid a 2016 tweet storm over the use of Graham’s photograph, Prince wrote defiantly:  “U want fame? Take mine. Only thing that counts is good art. All the everything else is bullshit.” To this, an art critic friend Jerry Saltz added, “Amen. These litigious ‘artists’ ‘photographers’ are so middle-class conservative it shivers the timbers. Neo-know-nothings.” Well, timbers shivered, I guess. Turns out that knowing nothing about fair use can be costly.

On that point, it is highly significant that this case does not end in a confidential settlement, in which the plaintiffs would ordinarily receive more money. According to plaintiff’s attorney David Marriott of Cravath, Swaine & Moore, Graham and McNatt both wanted a public ruling by the court to send a message to the creative community that what Prince had done was categorically not allowed under the fair use exception.

Graham’s “Untimely” Registration

Of note, Donald Graham’s resolution in this case is another example of the importance of timely registration with the U.S. Copyright Office. At the time Prince first exhibited Rastafarian Smoking a Joint, the photograph, created in 1996, was not registered. This could have barred Graham a path to federal litigation, or at least deny him access to statutory damages, which would require that he prove actual damages (i.e., loss of income). Graham registered the photograph in October after the Madison show went up that September. That was too late to effectively litigate the original infringement, but Prince and Gagosian subsequently made infringing use of Rastafarian by producing a billboard and art book, which together violated Graham’s rights of reproduction, display, and distribution.

Warhol Reins in Prince

As discussed in other posts, there are aspects of the Warhol case that remain food for thought, if not litigation—namely the unanswered, substantial similarity question as to whether Warhol copied the protectable expression in the Goldsmith photograph. But the importance of that decision was that it resharpened the contours of the transformative consideration after many years in which defendants have tried to present vague and overbroad definitions that would deprive the fair use doctrine of all meaning.

Richard Prince’s attempt to fit the “New Portraits” project into a transformative finding was a classic and high-profile example of pushing the boundary of the fair use doctrine beyond reason. And it is hard to miss the cultural significance of the Court’s posthumous check on Andy Warhol ultimately tempering the hubris of Richard Prince. Both artists benefitted substantially from the metaphysics of merely attaching their names to works, including creative expressions they did not really make. As such, the judgment in Graham and McNatt’s favor is a satisfying punctuation to this saga worthy of a toast. Cheers!