Does Andy Warhol Get Same Copyright Treatment as Google Code?

In what could become the first test of how courts apply a recent Supreme Court opinion concerning computer code, the Andy Warhol Foundation is citing Google v. Oracle and asking the 2nd U.S. Circuit Court of Appeals for another shot in its copyright feud with Lynn Goldsmith.

Goldsmith is a photographer who licensed her images of Prince to Vanity Fair in the 1980s. Warhol then used the images to create a series of silkscreens of the musician. After Prince died, Goldsmith learned about the series and complained. So the Andy Warhol Foundation went to court seeking a declaration of fair use.

In late March, the 2nd Circuit came out with a decision in favor of Goldsmith that stunned many in copyright circles. In holding that secondary works that retain the essential elements of source material and merely recast the aesthetic aren’t transformative, the appellate judges created a high bar in the legal analysis.

Represented by attorneys at Latham & Watkins, the Warhol Foundation begins by explaining that the ruling will be “of exceptional importance to copyright law and free expression,” adding, “In a holding that threatens to render unlawful many of the most historically significant artistic works of the last half-century, the panel adopted an unprecedentedly narrow conception of the ‘fair use’ doctrine.”

The Foundation’s new attempt to rehash this copyright case before a fuller panel of 2nd Circuit judges may turn on a reading of two important Supreme Court opinions.

The first is Campbell v. Acuff-Rose Music, the 1994 decision that examined 2 Live Crew’s take on Roy Orbison’s “Pretty Woman” and established the transformative nature of a commercial parody. That case focused in large part on how the rap group had added “something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”

The second is more intriguing because it’s of extremely recent vintage. That, of course, is the case and ruling concerning Google’s copying of computer code to build the Android operating system.  The high court released its opinion on April 5, just days after the 2nd Circuit had its big take on fair use in the Warhol case.

“The Google decision comprehensively refutes the panel’s reasoning,” states the Warhol Foundation’s brief. “Indeed, Google described — as a paradigm example of transformative use — a Warhol-like work of art that is materially indistinguishable from the works at issue here. A decision by this Court conflicting with the most recent authoritative decision of the Supreme Court cannot stand.”

Since the Supreme Court concluded that Google made fair use of copyrighted material, there’s been a burgeoning movement by copyright holders to limit Justice Breyer’s words to just software. In coming years, courts will have to decide whether there’s no application beyond the software context or whether Breyer’s restatement and interpretation of general fair use principles can be applied elsewhere.

The Warhol Foundation clearly believes that when it comes to the first factor of fair use — the purpose and character of use — Breyer’s words ring loud. It simply can’t be the case that “transformative” status is denied to all works whose source material is clearly “recognizable,” it’s argued here.

“In Google, the defendant ‘copied’ the plaintiff’s software code ‘precisely,’ and did so for ‘the same reason’ that the plaintiff wrote it: ‘to enable programmers to call up implementing programs that would accomplish particular tasks,'” states the brief urging a rehearing. “Yet the Supreme Court held that such line-for-line copying—where the original work was obviously ‘recognizable’ in the new one—was nonetheless transformative. Even though the defendant used the pre-existing material verbatim in its follow-on work, and even though both works were of the exact same type, the follow-on work served a socially constructive, distinct purpose—the development of ‘a highly creative and innovative’ alternative to the original. So the first factor favored fair use.”

Then, the Warhol Foundation asserts that Breyer was thinking of Andy Warhol himself in writing about Google.

With a reference to Warhol’s famous work depicting Campbell’s soup cans, the brief continues, “The Google Court even explained how that principle would apply in a case just like this one—observing that an ‘artistic painting’ could ‘fall within the scope of fair use even though it precisely replicates a copyrighted advertising logo to make a comment about consumerism’—an obvious nod to Warhol himself. … Using a branded soup can to ‘comment about consumerism’ only makes sense if the original image is recognizable.”

“So too with the Prince Series,” adds the Foundation. “Warhol’s comment about fame and celebrity would have been lost without ‘a recognizable depiction of Prince.'”

Goldsmith will soon attempt to defend the appellate ruling while other interested parties may also try to jump in with amicus briefs. It won’t be surprising if the Google opinion is the subject of vigorous fighting in the coming months.