Copyright watchers were surprised when the Supreme Court granted Andy Warhol Foundation’s (AWF) petition for certiorari in its case against photographer Lynn Goldsmith. For deeper background, see older posts, but this is the dispute over Andy Warhol’s “Prince Series” silkscreen images of rock legend Prince made in 1984 using Goldsmith’s unpublished 1981 portrait photograph as a reference image. In March ...

In my long, admittedly meandering post of April 18, I asserted that although a traditional understanding of fair use often concerns itself with purpose as perceived through message, the Second Circuit in AWF v. Goldsmith was right to adopt a “message-blind” approach in its opinion reversing the lower court’s finding. I say this despite my personal view that the Warhol ...

I share the sorrow of millions at the passing of Justice Ruth Bader Ginsburg. The world has lost a genius of the law, who, in addition to her immeasurable contributions to American justice, was a great lover of the arts and a true champion of the rights of creators. My deepest condolences to her family, colleagues, and friends. In my ...

In order for copyright law to work for all the Whos in Whoville—the small and the tall—legal reasoning must apply equally whether the plaintiffs are major enterprises or kitchen-table start-ups. While it is understandably common in the court of public opinion to favor smaller defendants being sued by larger copyright owners, the fact is that when an error of law disfavors a ...

In June, I wrote about the deeply flawed ruling in Brammer v. Violent Hues after the District Court for the Eastern District of Virginia handed down some rather inscrutable opinions about an otherwise straightforward copyright infringement case.  A production company company called Violent Hues used a photograph belonging to Russell Brammer on a website for the purpose of promoting a ...

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