Warhol Case Update: Amici Urge SCOTUS to Review Case

Barbara Kruger, Robert Storr, the Robert Rauschenberg Foundation, Roy Lichtenstein Foundation, Brooklyn Museum, and others recently filed amici curiae (“friends of the court”) briefs, urging the Supreme Court to grant The Andy Warhol Foundation for the Visual Arts’ petition for a writ of certiorari, arguing that the nation’s highest court should reconsider the Second Circuit Court of Appeals’ decision against the Foundation in a well-publicized copyright case. We discuss these amici briefs here.

Background

Last year, we wrote about the Second Circuit’s fair use opinions in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.   In a nutshell, in March 2021, the Second Circuit held that the artist’s foundation infringed Lynn Goldsmith’s photograph of Prince when it commercially licensed the reproduction of one of Andy Warhol’s works from his Prince series as a magazine cover.  Soon thereafter, in an effort to overturn the decision, the foundation filed with the Second Circuit a petition for panel rehearing and rehearing en banc (a review of an appellate decision by the Second Circuit, which is rarely granted), arguing that the March 2021 decision was irreconcilable with the Supreme Court’s April 5, 2021 decision in Google LLC v. Oracle America, Inc., which held that the defendant’s line-for-line copying of the plaintiff’s software code was fair use because it was for a socially constructive, distinct purpose – the creation of an innovative alternative to the original product.

On August 24, 2021, the same three-judge panel of the Second Circuit that issued the March opinion issued an amended opinion to address Google, reaching the same conclusion.  On September 10, 2021, the Second Circuit issued an order stating that “[t]he active members of the Court have considered [the foundation’s] request for rehearing en banc” and that the request is denied.

On December 9, 2021, the Warhol Foundation filed a petition for a writ of certiorari, seeking Supreme Court review of the Second Circuit’s judgment in the case.  In doing so, the foundation argued that the Second Circuit’s approach “creates a circuit split [importantly, with the Ninth Circuit, per the foundation] and casts a cloud of legal uncertainty over an entire genre of visual art, including canonical works by Andy Warhol and countless other artists.” According to the foundation, the Supreme Court “should grant review to vindicate its precedent, resolve the confusion in the lower courts, and resurrect protections for free expression that the Second Circuit’s ruling now imperils.” 

The Amici Curiae

In early January, amici briefs were filed by: (1) Barbara Kruger and Robert Storr, (2) The Robert Rauschenberg Foundation, Roy Lichtenstein Foundation, and Brooklyn Museum, (3) a group of art law professors, and (4) a group of copyright law professors.  These amici wrote in support of the Foundation’s petition.

Barbara Kruger and Robert Storr argued that the history and cultural practice of artists shows the importance of using existing materials to create new art, and that the Second Circuit’s fair use test will have a chilling effect on artists:

“The Second Circuit’s approach renders legally perilous the practice of copying, imitation, variation, or appropriation in art. These approaches have been a cornerstone of art for centuries, and have become a core component of much contemporary artistic practice, from Manet to Duchamp to Warhol to Barbara Kruger, and many others. Far from lacking creativity, incorporating or appropriating existing source material—sometimes with little change in outward form—is in fact a wellspring of precisely the type of artistic expression that copyright law is intended to promote.

The undefined and undefinable parameters of the Second Circuit’s new test would chill exactly such artistic self-expression, deterring artists from creating the works they wish to make, if those works do not appear visibly different ‘enough’ to be considered transformative by certain judges. No other circuit imposes such a restrictive test, and the Second Circuit’s ruling is of outsized importance given that court’s location in the country’s most important center of art.”

The Robert Rauschenberg Foundation, Roy Lichtenstein Foundation, and Brooklyn Museum argued that the Second Circuit’s opinion departs from the Supreme Court’s settled precedent that “the fair-use doctrine protects one artist’s creative use of another’s imagery to provide it with new meaning or expression.”  They argued that:

“The decision neuters an historically robust fair-use defense and exposes artists, as well as the institutions that display their works, to new and dramatically expanded liability for copyright infringement. Unless corrected, the decision threatens to impose a deep chill on artistic progress, as creative appropriation of existing images has been a staple of artistic development for centuries and remains essential to much of contemporary art.”

The art law professors argued that the Second Circuit’s ruling is inconsistent with the First Amendment:

“By making its own views on the merits of Andy Warhol’s artistic work determinative and ignoring the meaning and the message his art may have for the artistic community, the Second Circuit decision runs afoul of the First Amendment. Certiorari is warranted to resolve the irreconcilable conflict between the panel opinion and this Court and other circuits’ First Amendment precedent.”

The copyright law professors argued that prior precedent from the Supreme Court provides that:

 “an inquiry into whether a work is transformative requires consideration of whether a second work has a different message, meaning, or purpose. The trial court correctly followed this Court’s rule. The Second Circuit’s decision has erroneously forbidden consideration of this very inquiry. This mistake also created a conflict with other circuits and collapsed whether two works are substantially similar—a predicate question before any consideration of fair use is required—into a rejection of fair use. Even if the Second Circuit’s new rule is limited to visual similarity, it errs by treating the existence of substantial similarity as essentially conclusive against fair use. Because meaning matters, substantial similarity and transformativeness are not mutually exclusive. This Court should grant certiorari to clarify this important point given the confusion generated by the ruling below.”

Next Steps

For her part, Lynn Goldsmith has an extension until February 11, 2022 to file a response brief with the Supreme Court.  We will continue to monitor the SCOTUS docket for additional filings.