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Credits Warhol Foundation v. Goldsmith Ruling for Positively Impacting Future Fair Use Copyright Cases
Washington, DC—On January 25, the district court for the Southern District of New York approved final judgments in two separate copyright infringement lawsuits, which were filed by photographers, Donald Graham and Eric McNatt, against appropriation artist, Richard Prince. On January 26, Copyright Alliance CEO Keith Kupferschmid applauded the case outcomes and issued the following statement:
According to Kupferschmid, “The January 25 judgments in the Graham and McNatt copyright infringement cases involving Richard Prince are among the most important fair use decisions in decades. The outcome in both cases is extremely significant and provides us with insights into how last year’s Supreme Court decision in Andy Warhol Foundation v. Goldsmith will impact future copyright cases involving fair use. The court issued judgments in favor of all claims brought against Richard Prince in both the McNatt and Graham cases, including willful infringement of the photographers’ works. The Court dismissed all of the defenses raised by Prince and his co-defendants Larry Gagosian, Gagosian Gallery, and the gallery Blum & Poe, including a fair use defense, which Prince has used in the past to avoid liability for copyright infringement.
“On one hand, these judgments are extraordinary because Richard Prince has a long and storied history of fighting (and often beating) copyright infringement claims brought against him. So, for the court to enter multiple judgments of willful infringement and dismiss Defendants’ fair use defense with prejudice is significant.
“On the other hand, Prince’s actions should not be so surprising when one considers the big difference between the fair use landscape as it existed when his past cases were considered by the courts and the fair use landscape taking shape today. There can be little doubt that Prince’s actions represent a tacit recognition that the Supreme Court’s decision in the Warhol case reins in the fair use defense, and more specifically the transformative use portion of that defense, to such an extent that Prince no longer saw a clear path to victory through trial. This is especially true in the wake of the opinion denying Prince’s summary judgment motion in these cases in which, even prior to the Supreme Court’s ruling in Warhol, Prince’s works were held not transformative as a matter of law.
“Clearly, following the strongly worded opinion denying Prince’s summary judgment motion and the Warhol decision that arrived swiftly on its heels, Prince—like many users of others’ copyrighted works—understands the evolving landscape of the fair use defense. He and other secondary users must surely recognize that under the standards set forth in his own litigation, and bolstered by the Warhol case, one cannot copy someone else’s work without permission simply because they claim what they are doing adds something new to the work, places the work in a different context, or that they intend the secondary work to reach different buyers, in different markets, consuming different products. The fundamental impact of the Warhol case has never been more evident, and its import more pronounced, than with these two judgments. These plaintiffs’ wins are a dramatic step forward in the positive development of copyright law and creators throughout the country will benefit for generations to come.
“The Copyright Alliance and our members commend the legal team at Cravath, Swaine & Moore LLP, especially David Marriott and Christopher Davis, who worked on these cases for many years to ensure that two independent artists could prevail against the significant resources of Richard Prince and his galleries. There can be no doubt that this is a real David v. Goliath story. Appropriation artists like Richard Prince have taken other artists’ works for years with impunity; these judgments promise to bring that to an end, incentivizing the creation of original works. If not for the great work of the Cravath team this result would not have been possible.”
ABOUT THE COPYRIGHT ALLIANCE
The Copyright Alliance is a non-profit, non-partisan public interest and educational organization representing the copyright interests of over two million individual creators and over 15,000 organizations in the United States, across the spectrum of copyright disciplines. The Copyright Alliance is dedicated to advocating policies that promote and preserve the value of copyright, and to protecting the rights of creators and innovators. For more information, please visit our website.