The Google logo is displayed outside the company offices in New York, U.S., June 4, 2019. REUTERS/Brendan McDermid
The 2nd U.S. Circuit Court of Appeals’ ruling for photographer Lynn Goldsmith in a dispute over Andy Warhol’s appropriation of her photo of Prince is compatible with the U.S. Supreme Court’s April ruling in Google v. Oracle, Goldsmith told the court in a brief.
In a court-ordered Thursday brief on the impact of the Supreme Court's decision, Goldsmith argued Google v. Oracle was "irrelevant to how this Court applied the flexible fair-use factors to a fundamentally different type of copyrighted work."
Goldsmith's photo agency licensed one of her photos of Prince to Vanity Fair magazine, which commissioned Warhol for artwork based on the image. Warhol later made 15 additional unlicensed works based on the photograph called the "Prince Series."
Goldsmith learned of the series after Prince's death in 2016. The Andy Warhol Foundation for the Visual Arts sued in 2017 to clear Warhol from potential infringement claims, and Goldsmith countersued for infringement.
Reversing Manhattan District Judge John Koeltl, a three-judge panel led by U.S. Circuit Judge Gerard Lynch found on March 26 that Warhol's works weren't protected by the fair use doctrine largely because they weren't transformative.
A transformative work must have a "fundamentally different new artistic purpose and character," Lynch said, which must be "something more than the imposition of another artist's style" that "remains both recognizably deriving from, and retaining the essential elements of, its source material."
The Supreme Court decided Google v. Oracle on April 5, finding Google's use of code from Oracle's Java application programming interfaces in its Android operating system was transformative.
The foundation, represented by Roman Martinez of Latham & Watkins, argued in an April 23 petition for rehearing that its case should be reheard because, among other things, the Supreme Court found Google's use transformative even though the copyrighted material was "obviously recognizable" and copied for "the same reason" that Oracle wrote it.
The foundation also said that the high court cited a "Warhol-like work of art" — a painting that "precisely replicates" an advertising logo to comment on consumerism, like Warhol's Campbell's soup cans — as a "paradigm example" of transformative use.
Goldsmith, represented by Thomas Hentoff and Lisa Blatt of Williams & Connolly, responded that the Supreme Court's decision emphasized that fair use is a case-specific analysis, and that its ruling would have "limited application outside the context of computer code."
The functional computer code from the Google case is entitled to less copyright protection than Goldsmith's photograph, a "highly artistic" work that is "virtually the apogee of copyright protection," she said.
Goldsmith also argued that Warhol's soup-can paintings differed from the Prince works because the paintings turned ads into artwork, whereas Warhol's works and the photo were both already works of visual art.
"That Warhol created an arguably transformative work in the Campbell’s soup paintings does not suggest that his entire body of work is entitled to that designation," Goldsmith said.
The case is Andy Warhol Foundation for the Visual Arts Inc v. Goldsmith, U.S. Court of Appeals for the Second Circuit, No. 19-2420.
For Goldsmith: Thomas Hentoff and Lisa Blatt of Williams & Connolly.
For the foundation: Roman Martinez and Andrew Gass of Latham & Watkins, Luke Nikas of Quinn Emanuel Urquhart & Sullivan.
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