Hello friends, peers and fellow practitioners,
It is rare that the U.S. Supreme Court hears a case that involves copyright law, but there are not one but two developments of note.
1. Warhol’s Use of a Copyrighted Photograph as Basis for Painting
First, on Monday, March 28th, the Court granted certiorari in the matter of Warhol Foundation for the Visual Arts, Inc. v. Lynn Goldmith, et al. (Docket No. 21-869). The underlying dispute was over Andy Warhol’s use of a copyrighted photograph taken in 1981 by Lynn Goldsmith as the basis for a work of art depicting an image of Prince. Interestingly two then-major print publications were tangentially involved. Goldsmith took the photograph while on assignment for Newsweek. Warhol’s painting, entitled Orange Prince, was created in 1984 was created on commission for Vanity Fair.
You can view an image of Orange Prince, here.
The issues presented in this case are:
This Court has repeatedly made clear that a work of art is "transformative" for purposes of fair use under the Copyright Act if it conveys a different "meaning or message" from its source material. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994); Google LLC v. Oracle Am., Inc., 141 8. Ct. 1183, 1202 (2021). In the decision below, the Second Circuit nonetheless held that a court is in fact forbidden from trying to "ascertain the intent behind or meaning of the works at issue." App. 22a-23a. Instead, the court concluded that even where a new work indisputably conveys a distinct meaning or message, the work is not transformative if it "recognizably deriv[es] from, and retain[s] the essential elements of, its source material." Id. at 24a.
The question presented is:
Whether a work of art is "transformative" when it conveys a different meaning or message from its source material (as this Court, the Ninth Circuit, and other courts of appeals have held), or whether a court is forbidden from considering the meaning of the accused work where it "recognizably deriv[es] from" its source material (as the Second Circuit has held).
No argument date has been set, but this is one matter to watch closely. More coverage to follow.
2. When an Error in an Application Invalidates a Copyright Registration
In the matter of Unicolors, Inc., v. H&M Hennes & Mauritz (Docket No. 20-915), the Court held in a 6-3 decision that an error in an application for copyright registration can invalidate a registration only where the applicant has actual knowledge of or is willfully blind to the error, and the safe-harbor provision of Section 411(b)(1)(A) of the Copyright Act does not distinguish between mistakes of law or fact in excusing inaccuracies in a copyright registration.
The relevant passage of the Copyright Act is reproduced below:
(a) Except for an action brought for a violation of the rights of the author under section 106A(a), and subject to the provisions of subsection (b),[1] no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title. In any case, however, where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute a civil action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights. The Register may, at his or her option, become a party to the action with respect to the issue of registrability of the copyright claim by entering an appearance within sixty days after such service, but the Register’s failure to become a party shall not deprive the court of jurisdiction to determine that issue.
(b)(1)A certificate of registration satisfies the requirements of this section and section 412, regardless of whether the certificate contains any inaccurate information, unless—(A) the inaccurate information was included on the application for copyright registration with knowledge that it was inaccurate; and (B) the inaccuracy of the information, if known, would have caused the Register of Copyrights to refuse registration.
17 U.S.C. § 411.
The Unicolors decision likely benefits non-attorney registrants who may not appreciate all the subtleties of copyright law. The decision certainly makes it more difficult for Defendants to successfully argue that a copyright infringement case should be dismissed due to lack of plaintiff’s standing due to an invalid registration.
You can read the Court’s opinion below:
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