Speaker 1: This is Bloombird Law with June Brusso from Bloomberg Radio.
Speaker 1: The copyright clash over Andy Warhol's Prince series is a
Speaker 1: case that could reshape the fair use defense to copyright infringement,
Speaker 1: But the Supreme Court oral arguments were free, willing and
Speaker 1: punctuated by comic relief, like this from Justices Clarence Thomas
Speaker 1: and Elena Kagan. Let's say that I'm both a Prince fan,
Speaker 1: which I was in the eighties and no longer. Well
Speaker 1: only on Thursday night, the justices were considering whether Andy
Speaker 1: Warhol was within his rights to create fifteen silk screens
Speaker 1: of prints using a copyrighted photograph of the musician by
Speaker 1: rock and roll photographer Lynn Goldsmith. In trying to decide
Speaker 1: if Warhol's work had meaningfully transformed the photograp f the
Speaker 1: Justice is posed hypotheticals. Let's say that I'm also a
Speaker 1: Syracuse fan, and I decided to make one of those
Speaker 1: big blow up posters of orange prints and change the
Speaker 1: colors a little bit around the edges and put go
Speaker 1: orange underneath. Would you sue me? But some of the justices,
Speaker 1: including the Chief Justice, pointed out the transformative effect of
Speaker 1: Warhol's work. It's not just that Warhol has a different style,
Speaker 1: is that Unlike Goldsmith's photograph, Warholes sends a message about
Speaker 1: the deep personalization of modern culture and celebrity status and
Speaker 1: the iconic and it goes through the different features to
Speaker 1: support that. So it's not just a different style, it's
Speaker 1: a different purpose. One is the commentary on modern society.
Speaker 1: The other is to show what Prince looks like. My
Speaker 1: guest is intellectual property litigator Terence Ross, a partner caton
Speaker 1: uchun rose Men, described the issue here. This appeal to
Speaker 1: the Supreme Court rises out of a lawsuit for copyright
Speaker 1: infringement filed by Lynn Goldsmith against the Andy Warhol Foundation.
Speaker 1: Um Lynn Goldsmiths was relatively famous photographer from the seventies
Speaker 1: and eighties. UM famous for her photographs of rock stars.
Speaker 1: She has photographed I think I saw more than one
Speaker 1: hundred album covers of rock bands, which is incredible. And
Speaker 1: she was commissioned by Newsweek, which was doing a piece
Speaker 1: on a young and up and coming rock star by
Speaker 1: the name of Prince. She was commissioned to do a
Speaker 1: photograph of him that would be used on the cover,
Speaker 1: and she didn't absolutely iconic facial portrait of him um
Speaker 1: which really demonstrates the creativity of photography. George shows is
Speaker 1: a very, very vulnerable young person who's obviously afraid of
Speaker 1: the limelight at that point of his career. Now, the
Speaker 1: curious thing the photo was not actually used by Newsweek
Speaker 1: in his Magnanique magazine story, opting instead for live photos
Speaker 1: of his live performance, but it was widely regarded as
Speaker 1: a great photograph of the early eighties. So move forward
Speaker 1: time in Prince has become a significant rock star and
Speaker 1: celebrity in his own right, really a superstar of the
Speaker 1: music scene. And Vanity Fair magazine commissioned Andy Warhol to
Speaker 1: do an illustration for the cover of its magazine relating
Speaker 1: to the article it's doing on Prince, and they expressly
Speaker 1: licensed this photo from Lynn Goldsmith. The Prince give it
Speaker 1: to Andy Warhol and say we want you to use
Speaker 1: this photograph from Lynn Goldsmith as the basis for your illustration,
Speaker 1: And without apparently Vanity Fair or Wynn Goldsmith knowing it,
Speaker 1: he goes out and does a whole series of brightly
Speaker 1: colored silk screens based on the photograph. And when I
Speaker 1: say based on it, it really takes the photograph and
Speaker 1: simply makes some changes to it, in particular adding color.
Speaker 1: The magazine Vanity Fair comes out with the color shot
Speaker 1: that Lynn Goldsmith is expecting to see there. Andy Warhol
Speaker 1: then dies a couple of years later, thinking early, and
Speaker 1: all of his rights and assets passed to the Andy
Speaker 1: Warhol Foundation. A number of years later, Vanity Fair after
Speaker 1: Prince dies, wants to sort of revisit this famous Vanity
Speaker 1: Fair piece that it did and asked the Andy Warhol
Speaker 1: Foundation for permission to use one of these silk screens
Speaker 1: of Brents that Warhol had done in eighty four, and
Speaker 1: they put it on the cover of Vanni magazine. This
Speaker 1: is two thousand six. Lynn Goldsmith sees it on the
Speaker 1: news stand and she says, wait a minute, I didn't
Speaker 1: license that, and calls up Vanity Fair. They say, oh, um, well,
Speaker 1: we got it from the rights from the Andy Warhol Foundation,
Speaker 1: which says that they owned the copyright. And so Lynn
Speaker 1: Goldsmith calls up the Andy Warhol Foundation, which takes it
Speaker 1: a very aggressive position, insisting that they've got the copyright
Speaker 1: on it, that she has no rights on it, and
Speaker 1: they're not about to pay her anything by way of
Speaker 1: the license. Te and indeed, they seem to be so
Speaker 1: confident in their positions that they go to court and
Speaker 1: filed declaratory judgment lawsuits saying, we're seeking a declaration that
Speaker 1: we have not infringed upon Lynn Goldsmith's photograph based on
Speaker 1: the doctrine of fair use, which is a complete defense
Speaker 1: to copyright infringement. The trial court in New York agrees
Speaker 1: with them and grants them summary judgments, saying that the
Speaker 1: fair used defense protects these Andy Warhol Folk screens of Prince.
Speaker 1: Lying Goldsmith takes it up on appeal to the Second Circuit,
Speaker 1: and the Second Circuit says, wait a minute, what are
Speaker 1: you talking about. Fair use does not cover this, and
Speaker 1: they rule in favor of Lying Goldsmith, going to the
Speaker 1: extreme extent of saying that summary judgment should be granted
Speaker 1: to her that she wins, not even sending it back
Speaker 1: for further reconsideration her jury trialgy She just wins um
Speaker 1: and the Warhol Foundation has now appealed that decision from
Speaker 1: Second Circuit to the Supreme Court. Supreme Court held very
Speaker 1: interesting and lengthy arguments on Wednesday. Is the question whether
Speaker 1: Warhol's work transformed Goldsmith's photograph? Well? Is that simple? To
Speaker 1: understand what's going on here, what has to understand a
Speaker 1: little bit about the fair used defense. The fair used
Speaker 1: defense statutory written into the Copyright Act. It says that
Speaker 1: there shall be no copyright infringement if secondary work is
Speaker 1: taking advantage of this fair used defense. The fair used
Speaker 1: defense says courts should consider four non exclusive factors. The
Speaker 1: very first factor, and what's widely regarded as the most important,
Speaker 1: is for the court to look at the purpose and
Speaker 1: character of the secondary use. There are three other factors
Speaker 1: that all have to be considered, but that's usually considered
Speaker 1: the most important, and in a very famous decision by
Speaker 1: the Second Circuit a few years ago, Second Circuit per
Speaker 1: Judge Leavell said that the key to this one factor
Speaker 1: is whether or not the secondary work somehow transformed the
Speaker 1: original work. And the Supreme Court has since bought into
Speaker 1: this transformative use test and is now part of the law,
Speaker 1: even though it's not in the statute. But I would
Speaker 1: say that the issue up on an appeal here spring
Speaker 1: courts is not whether or not that's the law. It's
Speaker 1: not whether or not the work is transformative. The question
Speaker 1: really is what does it mean? What is required for
Speaker 1: work to be transformative How do you transform a work
Speaker 1: in such a way that the fair use defense applies.
Speaker 1: There are many transformative uses that do not constitute fair use,
Speaker 1: and so the key here at issue for the Spring
Speaker 1: Court is to give some sort of guidance, some sort
Speaker 1: of definition to low courts as to what constitutes a
Speaker 1: transformative use that is entitled to take advantage of the
Speaker 1: fair use defense. At one point, Justice Alito question whether
Speaker 1: judges were qualified to focus on the meaning of the
Speaker 1: work or was that a job that should be left
Speaker 1: to art critics. And I remember that the Second Circuit
Speaker 1: criticized the district court judge for being an art critic.
Speaker 1: But how do you get out of this without being
Speaker 1: somewhat of an art critic. Well, it's a great question.
Speaker 1: And the Second Circuit, in saying that district court judges
Speaker 1: trial judges are not allowed to be art critics, are
Speaker 1: not out to sit in judgment on the artistic merits
Speaker 1: of work, take advantage of a long history going back
Speaker 1: over a hundred years in that court in the Second
Speaker 1: Circuit with respect to artwork, music work, dramatic works such
Speaker 1: as plays and adels of saying that trial courts judges
Speaker 1: cannot be critics of the work. And so that's a
Speaker 1: very well grounded position to the Second Circuit took the
Speaker 1: issue you raises a very good one is well, if
Speaker 1: that's true, what do you do? And I think it's
Speaker 1: somewhat enlightening that the response that the Council for the
Speaker 1: Andy Warhol Foundation gave to that question from Alito is
Speaker 1: that the judge should look at the work and and
Speaker 1: decide whether or not it is transformative or not, in
Speaker 1: essence betting the farm on the argument that the Second Circuit,
Speaker 1: in this long history of judges not being art critics,
Speaker 1: is just wrong a matter of law. It's a very
Speaker 1: strong and aggressive position that the Warhol Foundation. I mean,
Speaker 1: you have to remember here, Jude, what justice a leader
Speaker 1: started off. That colloquy was saying was, well, if Mr
Speaker 1: Warhol were alive today, what would he say was the
Speaker 1: meaning of this work that transformed it? He wouldn't tell you, though, right?
Speaker 1: Can't you actually right? And neither would counsel. Warhol Foundation
Speaker 1: essentially says, well, Mr Warhol's testimony is not available, basically,
Speaker 1: but it wouldn't have any meaning. Even if it did,
Speaker 1: It's up to the judge to look at it, which
Speaker 1: kind of surprised me which side did better in the
Speaker 1: rural arguments. Would you say so? I was a little
Speaker 1: bit taken aback the extent to which you could place
Speaker 1: certain justices on one side or the other. We've talked
Speaker 1: about this before, June, but the passing of Justice Ginsburg
Speaker 1: and the retirement of Justice Bryer has transformed this court
Speaker 1: with respect the copyright law. Those two justices were the
Speaker 1: oposide ends of the spectrum. Justice Ginsburg taking a position
Speaker 1: that copyright should be strongly enforced, a really strong advocate
Speaker 1: for strong, vigorous copyright protection, and Justice Brian was at
Speaker 1: the other end of the spectrum, opposing strong copyright protection.
Speaker 1: And so we were all wondering in the copyright community
Speaker 1: what this new court would um do in this really
Speaker 1: important case. And keep in mind, June, this is the
Speaker 1: first time since that the Supreme Court has taken up
Speaker 1: a fair use question. And so it's not just a
Speaker 1: really important notal point in copyright law that we're faced with,
Speaker 1: but a point in time in which we don't have
Speaker 1: the two principals advocates for the competing positions on the
Speaker 1: Court anymore. And yet, notwithstanding that, it seemed that there
Speaker 1: were justices willing to step up and fill those rules.
Speaker 1: So on my scorecard here I had Justice Kagan and
Speaker 1: Chief Justice roberts in the camp that would say that
Speaker 1: this was a fair use. Adjustice roberts In. Tickler just
Speaker 1: came flat out and said, this is a different purpose.
Speaker 1: The Warhol Prince had a different purpose from the photo.
Speaker 1: He said, Warhol sends a message about the de personalization
Speaker 1: of modern culture and celebrity status for all practical purposes,
Speaker 1: that he's voting in favor of the Warhol Foundation. Hagan's
Speaker 1: remarks took a similar approach. And then on the other side,
Speaker 1: I had what I think are for justices for the
Speaker 1: position that this is not fair use. Justice Thomas, Justice Alito,
Speaker 1: Justice Barrett, and Justice Cantanji Brown, all of whom posed
Speaker 1: hypothetical to the Council for the Warhol Foundation that sort
Speaker 1: of took this whole transformative use a new meaning test
Speaker 1: to its ridiculous limits. Justice Alito, i guess, asked the question, well,
Speaker 1: if you'd simply change the photos so that Prince was smiling,
Speaker 1: would that be a transformative use? Because it changed the
Speaker 1: meaning from a vulnerable young rock star to a happy
Speaker 1: rock star, would that be good enough? Similar Justice Thomas,
Speaker 1: he asked a really interesting question, what if all you
Speaker 1: had done was colorized the edges of the black and
Speaker 1: white photograph of prints such they were, they were the
Speaker 1: colors of Syracuse University, and you were intending to send
Speaker 1: a commentary on supporting the sports teams at Syracuse University.
Speaker 1: These sorts of hypothetical posts are typically intended by judges
Speaker 1: to point out the ridiculousness of somebody's position, and so
Speaker 1: the fact that those four justices all went that route
Speaker 1: with sort of extreme hypotheticals sent a message to me
Speaker 1: that they are leaning towards this not being a fair youth.
Speaker 1: I will point out the Warhol Foundation to the extent
Speaker 1: I have this right at this point of school, I
Speaker 1: would have to run the tables on the other three
Speaker 1: to get there. It's a very challenging case. Both sides
Speaker 1: say the potential stakes here are enormous, not just on
Speaker 1: the art world, but on publishing, on movies and so on.
Speaker 1: Are they exaggerating or do you agree with that? Absolutely?
Speaker 1: This is going to be one of the most significant
Speaker 1: decisions with respect to secondary works of all time in
Speaker 1: Anglo facts and law. At issue is control of the
Speaker 1: original work by the artists for the original work, and
Speaker 1: to the extent that this is held to be not
Speaker 1: a fair use, I think the critics are correct that
Speaker 1: that will mean that the original artists have much more
Speaker 1: control over their works. The question is whether or not
Speaker 1: the next step in that argument is correct. Does giving
Speaker 1: the original artists more control over the work inhibit future creativity?
Speaker 1: And as we heard in the or argument, there was
Speaker 1: a lot of discussion of licensing. Doesn't the right to
Speaker 1: license these original works to make changes allow you to
Speaker 1: still engage in level of creativity? This was not said
Speaker 1: in court, but look, you had very wealthy entities involved here.
Speaker 1: You had Vanity Fair, Andy Warhol. They clearly had the
Speaker 1: wherewithal to license the photograph again from Lynn Goldsmith in
Speaker 1: order to do these sixteen chlorized folk screens, but they
Speaker 1: deliberately chose not to. It strikes me that Lynn Goldsmith
Speaker 1: was entitled to some benefit for her creativity in the
Speaker 1: first place, which she was being deprived of. So yes,
Speaker 1: there is going to be a change in the bargaining
Speaker 1: power amongst artists as to secondary uses of original works,
Speaker 1: whether or not stops creativity. And I just don't think so,
Speaker 1: Thanks so much, Terry. That's intellectual property litigator Terence ross
Speaker 1: A partner Captain Eugen Rosenmanton. The Solicitor General's Office remains
Speaker 1: the diversity pipeline for Supreme Court advocacy. The office, along
Speaker 1: with attorneys from state and local governments, sent the majority
Speaker 1: of women to the lecture and last term. In total,
Speaker 1: twenty three female government attorneys argued during the term, while
Speaker 1: law firms and academia sent fifteen. Joining me is Bloomberg
Speaker 1: Law Supreme Court reporter Kimberly Strawbridge Robinson who keeps track
Speaker 1: of the numbers. So we've talked before about the number
Speaker 1: of men arguing at the Supreme Court vastly outnumbering the
Speaker 1: number of women. Four women are arguing in the October session.
Speaker 1: How does that stack up? Is that about the same
Speaker 1: as usual or better than usual? Well, it's about the
Speaker 1: same as usual. So typically we see between twelve of
Speaker 1: arguments at the Supreme Court being made by women. This time,
Speaker 1: you know, four out of twenty two is eighteen percent.
Speaker 1: So it's right in the middle of what we're typically
Speaker 1: used to. But I think you know one thing to
Speaker 1: notice we we talk about um women, I think you know,
Speaker 1: to some expense, it's low hanging fruit, but it really
Speaker 1: signals a lack of diversity across the board, you know,
Speaker 1: not just with gender, but with race, with you know,
Speaker 1: attorneys with disabilities, with military service, just all kinds of
Speaker 1: this diversity that we really don't see reflected in the
Speaker 1: advocates who argue before the Supreme Court. Two of the
Speaker 1: women who argued in the October session are in the
Speaker 1: Solicitor General's office. Tell us about the role of the
Speaker 1: Solicitor General's office in getting women to the podium, Sure says,
Speaker 1: the solicitor General's Office is the federal government's top lawyers
Speaker 1: at the Supreme Court. They are not only argue in
Speaker 1: cases that the federal government is officially involved in as
Speaker 1: a party, but they argue a lot of cases as
Speaker 1: sort of friends of the court. And so that office
Speaker 1: isn't you know, staffed by that many attorneys. So getting
Speaker 1: into that office almost guarantees you, you know, multiple Supreme
Speaker 1: Court arguments in a term, which is significant. Is something
Speaker 1: that's really hard for even really established attorneys to do
Speaker 1: in private practice. So what that does is it allows
Speaker 1: the attorneys who are there, who are often relatively early
Speaker 1: in their careers to kind of build this critical mass
Speaker 1: of Supreme Court cases that they can take out to
Speaker 1: the world, and so people will hire them and we'll
Speaker 1: be seeing them back at the Court again and again
Speaker 1: for years to come. So, you know, the makeup of
Speaker 1: the Solicitor General's Office is really really important in establishing,
Speaker 1: you know, diversity in the future of the Supreme Court
Speaker 1: bar The current Solicitor General is a woman, the second
Speaker 1: to be Solicitor General the last being now Justice Elena Kagan.
Speaker 1: So is the office making an effort to get more
Speaker 1: women and more minorities into the office. Well, we don't know,
Speaker 1: So the Solicitor General's Office hasn't officially said that, you know,
Speaker 1: that's an effort that they're trying to make. But we
Speaker 1: have seen kind of a shift in the demographics of
Speaker 1: that office during the Trump administration, not really due to
Speaker 1: you know, the d o j's own sort of policies
Speaker 1: or anything like that, but just sort of the timing
Speaker 1: of when people come and go from the office. We
Speaker 1: saw a number of female assistant Solicitor Generals leave the office,
Speaker 1: and we saw a real shift in the number of
Speaker 1: women who were arguing at the court. There have been
Speaker 1: a number of women who have been hired under the
Speaker 1: Biden administration. I believe the three most recent hires have
Speaker 1: all been women. So they haven't made an official statement
Speaker 1: that that's something that they're looking for, but it sure
Speaker 1: those seems to show in the numbers that they have
Speaker 1: not just with women, but with also with different kinds
Speaker 1: of diversity, um, in particular racial diversity. So you wrote
Speaker 1: about Yarra Dubin, who recently joined the Solicitor General's office.
Speaker 1: Do lawyers often leave law firms for a time to
Speaker 1: do a stint in the solicitor General's office and then return, Yeah, so,
Speaker 1: I mean it varies a little bit, but I would
Speaker 1: say in general, you're looking at somebody who um often
Speaker 1: comes from private practice. You know, a firm that has
Speaker 1: you know, an appellate and Supreme Court practice, or a
Speaker 1: boutique firm, somebody who has often clerked at the Supreme
Speaker 1: Court before, and they will go to the Solicitor General's Office,
Speaker 1: which is a really highly thought after position, and typically
Speaker 1: stay there about five years before heading back out to
Speaker 1: private practice. And we really see that that gives them
Speaker 1: the ability to argue you know, ten or more cases.
Speaker 1: It doesn't sound like a lot. But when you look
Speaker 1: at the Supreme Court, they only hear about sixty to
Speaker 1: seventy cases each term, So coming out with ten cases
Speaker 1: it's a really big deal. It's a good amount of
Speaker 1: experience to then go out and convince clients that you know,
Speaker 1: you have what it takes to argue in front of
Speaker 1: the justices and and you can do the job for them.
Speaker 1: Do the justices treat lawyers who are new to the court,
Speaker 1: first timers with sort of more kindness than they would
Speaker 1: other lawyers, or it doesn't matter. Well, the Supreme Court
Speaker 1: is usually very respectful of the advocates. You know, again,
Speaker 1: we're talking about an appellate argument here, so it's not
Speaker 1: as if people are getting into yelling matches. But it
Speaker 1: did seem, particularly with the Steuben's argument, that the justices
Speaker 1: were being a bit more careful with her. We still know, however,
Speaker 1: saw some pretty tough questioning on her part, trying to
Speaker 1: pin down the federal government where they were. But after that,
Speaker 1: you know, two of the justices that thank you so much.
Speaker 1: That was very helpful. Something that you don't always see
Speaker 1: a repeat advocate, something you really rarely see whenever somebody
Speaker 1: that they've seen up there before. So I know you
Speaker 1: you've done the numbers. How many women from private practice
Speaker 1: argue at the Supreme Court or this term haven and
Speaker 1: how many women from the Solicitor General's office. Well, this
Speaker 1: term it's just haven't half. You know, we just kicked
Speaker 1: off this term in October and we only had eight cases.
Speaker 1: So you know, two of the women have come from
Speaker 1: private practice too, from the Solicitor General's office. But I
Speaker 1: suspect those numbers will shift if history is any guide.
Speaker 1: You know, in the past, we've seen you know, attorneys
Speaker 1: not just from the Solicitor General's office but from other
Speaker 1: governments like state, muncile government tend to provide the majority
Speaker 1: of women attorneys who argue cases at the court. The
Speaker 1: last term is a good example. Last term, government entities
Speaker 1: spent twenty three female lawyers and all other entities, law firms, academia,
Speaker 1: public interest groups sent just fifteen. So it's really important,
Speaker 1: you know, to pay attention to the composition of those
Speaker 1: government groups, um and kind of understanding what the future
Speaker 1: of the Supreme Court bar is going to look like.
Speaker 1: The Alabama voting case had a different kind of cross
Speaker 1: section of lawyers. It did. Yeah, that was a case
Speaker 1: where it was unique, UM in several respects. First, there
Speaker 1: were four different attorneys who were arguing the case. Typically
Speaker 1: there's only two, maybe three if the federal government is arguing.
Speaker 1: Before was quite a lot. But when we look at
Speaker 1: the attorneys who were arguing, it was unique in the
Speaker 1: sense that there were two attorneys of color, two women arguing,
Speaker 1: including UM, as you mentioned the US Solicitor of General
Speaker 1: Elizabeth Blagger, who was just the second woman to hold
Speaker 1: the office. And you know, we saw two first timers
Speaker 1: who were making their Supreme Court debut, which is somewhat unique,
Speaker 1: and that most of the cases at the Supreme Court
Speaker 1: are handled by people who are considered veterans as who
Speaker 1: have igory five or more cases before the court before.
Speaker 1: So it was really a typical in the sort of
Speaker 1: representation UM that was arguing that case. And of course,
Speaker 1: you know, that was an important case to have that
Speaker 1: kind of representation because it was a case about voting
Speaker 1: rights for minority voters. So UM, I think one that
Speaker 1: that we would expect to see that sort of a
Speaker 1: typical representation. Thanks so much, Kimberly. That's Bloomberg Law, Supreme
Speaker 1: Court reporter Kimberly Strawbridge, Robinson, and that's it for this
Speaker 1: edition of The Bloomberg Law Show. Remember you can always
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