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As digital technology and the online environment transform the distribution and use of intellectual property, our Copyright & Trademark group is on the front lines in protecting and enforcing our clients’ most important creative assets. Our trial-tested team represents a wide range of clients, from entrepreneurs to major corporations, from playwrights to media giants, and from individual songwriters to the country’s largest performing rights organizations.

Second Circuit Review: Turning the Tide in Fair Use Jurisprudence

April 28, 2021

Litigation of counsel Martin Flumenbaum and firm chairman Brad Karp’s latest Second Circuit Review column, “Turning the Tide in Fair Use Jurisprudence,” appeared in the April 28 issue of the New York Law Journal. The authors discuss the Second Circuit’s decision in Andy Warhol Foundation for the Visual Arts v. Goldsmith, which clarified its controversial 2013 decision in Cariou v. Prince and walked back what critics and the Seventh Circuit viewed as an overbroad application of fair use.

The Cariou ruling emphasized the “transformative nature” element of the first of four statutory factors used to determine fair use. In Warhol, the Second Circuit clarified that determining whether a secondary work is transformative in nature requires looking beyond different aesthetics to the purposes of the primary and secondary works. The panel found that Andy Warhol’s series of silkscreen prints and pencil illustrations of musical artist Prince, based on a 1981 photograph of Prince by Lynn Goldsmith, constituted copyright infringement because the two works were substantially similar as a matter of law despite the addition of Warhol’s signature style. Rather than “assume the role of art critic,” the panel held that the district court judge should examine whether the secondary work has a fundamentally different purpose and character than the original. Litigation associate Tanya Manno assisted in the preparation of this column.

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