ELI Joins Amicus Brief in Andy Warhol Foundation v Goldsmith
The EveryLibrary Institute is joining with several other national library organizations in an amicus brief in the Andy Warhol Foundation v. Goldsmith case currently before the Supreme Court.
What does Andy Warhol have to do with libraries? Our colleagues at Library Futures organized the brief and take us through the high-level issues in this important case.
In 1984, photographer Lynn Goldsmith licensed Vanity Fair the right to use one of her photographs of Prince for the purpose of creating an illustration that Vanity Fair was commissioning for an article. Unbeknownst to Goldsmith, Warhol created the illustration for Vanity Fair. Further, he used Goldsmith’s photograph to create 15 additional works using the silkscreen process, known as his Prince Series. Goldsmith claims that she discovered the infringement after Prince’s death in 2016 when Vanity Fair used an image in a tribute issue.
The Andy Warhol Foundation (AWF) sought a judgment that the Prince Series was fair use. Goldsmith counterclaimed copyright infringement. The lower court ruled in favor of AWF, finding that Warhol’s work was transformative and, therefore, a fair use. The 2nd Circuit reversed on appeal. The 2nd Circuit focused on the visual similarity of the works and the fact that both were “created as works of visual art” and are “portraits of the same person.” The 2nd Circuit refused to “seek to ascertain the intent behind or meaning of the works” contrary to the Supreme Court in Campbell, which instructs that courts must view a work as transformative if it adds a new “meaning or message.” The 2nd Circuit stated that judges “should not assume the role of art critic and seek to ascertain the intent behind or meaning of the works at issue.” But of course, ascertaining intent and meaning is necessary in order to determine whether a work’s purpose is distinct from the original. The court essentially stopped the analysis at the visual similarity between the works.
The amicus brief we joined reminds the Court that this decision could negatively impact libraries and archives because research, teaching, scholarship, and preservation rely on the stability of fair use. The 2nd Circuit’s analysis also has the potential to jeopardize existing culturally significant works and collections of important art and artists. If upheld, the decision will have a drastic chilling effect not just on appropriation art, but on the communities served by libraries, museums, and other cultural institutions.
Read the full brief here: https://supremecourt.gov/DocketPDF/21/21-869/228252/20220617095802802_21-869_Amici%20Brief.pdf