Saturday, May 01, 2021

"Our brief addresses the effect of Google v. Oracle, which the Second Circuit has explicitly asked for more briefing about."

Amicus brief in rehearing petition for Warhol v. Goldsmith by IP professors Rebecca Tushnet, Christine Farley and Pam Samuelson.

Monday, April 26, 2021

"Andy Warhol Foundation fights back in fair use case"

Jeanne Fromer's reaction to the recent Warhol fair use decision was that (to put the matter mildly) "fair use in art has become a bit messy in the Second Circuit with each panel pointing in a somewhat different direction" and to "hope the Second Circuit uses one of its rare en bancs to revisit this decision ...."

The Warhol Foundation has now petitioned for rehearing, and rehearing en banc, which you can read here. Blake Gopnik gets a shout-out in one of the footnotes.

Thursday, April 15, 2021

"Second Circuit Fair Use Decision Sets Up Circuit Split"

More on the Warhol decision from David Steiner. Some earlier comments from Steiner in the updates here.

Monday, April 05, 2021

Fair Use Month Continues

The Supreme Court issued its Google v. Oracle decision today. Adam Liptak's New York Times story is here. The opinion is here.

"Last month, three federal appellate judges in Manhattan decided they knew more about art than any old critic or philosopher" (UPDATED)

"Whether they quite meant to or not, their ruling had the effect of declaring that the landmark inventions of Duchamp and Warhol — the 'appropriation' they practiced, to use the term of art — were not worthy of the legal protection that other creativity is given under copyright law."

Blake Gopnik on the recent Warhol fair use decision.

UPDATE: More Gopnik here: "It’s a really messy situation. And this same court seems to have handed down different decisions fairly arbitrarily about what counts as good reuse and what counts as bad reuse, what counts as a fair reuse and what counts as an unfair reuse. So it’s really a mess, and I’m kind of hoping that the Supreme Court weighs in and cleans this situation up."

Sunday, April 04, 2021

Another Second Circuit Fair Use Decision

This one upholding the use of the plaintiff's photo of Eddie Van Halen playing guitar in an exhibition of rock n’ roll instruments on the Met’s website. Story here. Opinion here.

The use passed the transformativeness test because "the exhibition transformed the Photo by foregrounding the instrument rather than the performer." Whereas the photographer's "stated purpose" in creating the photo was to show “what Van Halen looks like in performance,” the Met exhibition "highlights the unique design of the [depicted] guitar and its significance in the development of rock n’ roll instruments." Further, "the Photo appears alongside other photographs showing the physical composition of the guitar, which are collectively accompanied by text discussing the guitar’s genesis, specifications, and impact on rock n’ roll music, not Van Halen’s biography or discography. This context 'adds something new, with a further purpose or different character, altering the [Photo] with new expression, meaning, or message.'"

There you have it. Totally consistent with Warhol, and with Cariou before it. I think the principle in the Second Circuit is that there will be a finding of fair use, as a matter of law, when the use in question is fair, and, conversely, there will be a finding of no fair use when the use in question is not fair. All crystal clear.

Friday, April 02, 2021

"Anne provided a needed corrective to the recent declarations by some commentators that museum trustees should be condemned for not entirely defraying museums’ outsized budgetary shortfalls from their own pockets."

Lee Rosenbaum has a round-up of some comments from the "old school" side of the aisle at the recent Syracuse Deaccessioning symposium, including more from Anne Pasternak (who Lee says "pragmatically acknowledged the merits of both sides of the deaccession dialectic, and gamely tried to steer between them") in response to the "it's on their fat asses" wing of the Deaccession Police:

"Can I just stand up for boards? It’s really made me crazy how people are just, like: 'All these museums have billionaires on their board and they really should be paying for everything.'

"I find that so perplexing at best. First of all, very few institutions have bunches of billionaires on the boards. I happen to be blessed with a very generous board of directors whose giving keeps increasing. But we can’t expect a public institution that was founded over 200 years ago to be solely funded by a handful of privileged people. I find it so bizarre that that’s even a conversation out there.

"I think it’s time to get real about boards. They’re under such scrutiny that you have to be courageous to be on a museum board these days. So I think we need to have a real conversation about what it means to run these institutions and the roles of boards who, in many of our cases, are already being extraordinarily responsible and generous, and not just look to a handful of people to solve all of our problems."

Tuesday, March 30, 2021

"While the end result ... will be hailed by photographers and other similarly-situated content creators, it also ratchets up the confusion meter for anyone sitting on the sidelines trying to make sense of the Second Circuit’s fair use landscape."

Copyright Lately's Aaron Moss has a similar reaction to mine re the Second Circuit's Warhol decision:

"The clear import of Goldsmith is that courts should not automatically recognize any alteration to an original work as transformative—regardless of who’s doing the altering. The problem, of course, is that the court really hasn’t offered any guidance on what is transformative. Why was Richard Prince’s composition, color palette and media deemed 'fundamentally different and new' compared to the original work, but not Warhol’s? Why was the Second Circuit able to decide that Warhol’s image wasn’t protected by fair use as a matter of law when it was unable to do so for images in Cariou that are arguably less transformative than Warhol’s? Who knows."