All the Hallmarks of a Hollywood Drama
In mid-2022 the United States Supreme Court heard an appeal around use of an Andy Warhol image of Prince. There is concern that its decision could severely hamper artistic creativity.
This article examines the United States and the differences between New Zealand’s law of fair dealing and the United States concept of fair use.
In 1981 Lynn Goldsmith, a New York photographer, took photographs of the singer Prince. In 1984, Goldsmith licensed her previously unpublished Prince photograph for $400 to Vanity Fair whereby Andy Warhol used that photograph to create a series of 16 screen prints. One of those is the now infamous Orange Prince. Then in 2017 Goldsmith saw Orange Prince, used again by Vanity Fair on its cover, not long after Prince had died. She was not credited as the photographer and not paid.
The Warhol Foundation pre-emptively filed a law suit against Goldsmith arguing that Warhol’s portrait of Prince was “fair use”. Goldsmith counterclaimed for copyright infringement.
In mid-2022 the United States Supreme Court heard an appeal from a 2021 ruling of the 2nd Circuit of Court of Appeals which ruled in favour of Goldsmith.
The question for the Supreme Court was whether Warhol had transformed Goldsmith’s original photograph enough to avoid infringing Goldsmith’s copyright. Part of that question is whether changing the source material’s meaning makes Warhol’s work transformative and therefore “fair use”. The Supreme Court has to consider whether the meaning or message of the two works is different.
The chatter is that a finding for Goldsmith will stifle creativity. There is after all, nothing new under the sun. What has gone before can inspire and many artists build on existing works, known as “standing on the shoulders of giants”. The fear is that a finding for Goldsmith will result in artists being too risk adverse to use the inspiration of earlier works to create new works and artists will stop creating.
The very purpose of copyright law is to reward artists, authors, musicians and the like for their creative endeavours by preventing third parties free riding on their efforts. The English and New Zealand courts attempt to strike this balance by looking at whether sufficient skill, labour and judgement has been expended to warrant protection under copyright for originators or to exculpate alleged infringers in that they have created their own original works.
It is expected that the United States Supreme Court will issue a decision in the next few months. We will then find out if Warhol did enough to earn a Mallowpuff.
Fair use in the United States, at its simplest, allows a person to use a reasonable amount of copyright content without permission or payment.
Fair dealing as it is defined in the New Zealand Copyright Act 1994 is limited to using a reasonable amount of copyright content without permission or payment for the limited purposes of criticism, review and news reporting. For example, TV1 news using a clip of the Olympic Games even though Sky Sport might have the broadcasting rights or citing a quote of someone else for criticism or review.
What is more akin to fair use in the United States is the test for copyright infringement established in case law in New Zealand: see Designers Guild Ltd v Russell Williams (Textiles) Ltd [2001] 1 WLR 2416, approved in Henkel KGAA v Holdfast New Zealand Ltd [2006] NZSC 102, for example.
That test is whether the allegedly infringing work copies a substantial part of the original copyright work and whether it bears objective similarity. Or, in other words, has the original copyright work been altered enough that it no longer copies a substantial part and no longer bears objective similarity? Same, same but different. A rose by another name would smell as sweet.
One significantly different approach is considering the copyright work’s meaning. The New Zealand (and English) approach considers only how the original copyright work and the allegedly infringing copyright work compare. The meaning or message has, at least to date, had no bearing on the question of substantial part and objective similarity.
We do not place as much emphasis on “fair use” in New Zealand as they do in the United States under the doctrine of fair use. For example, parody is quite a well-developed area of copyright law in the United States, but not so in New Zealand.
The law of copyright in New Zealand is governed by the Copyright Act 1994 and has close parallels with the relevant parts of the Copyright, Designs and Patents Act 1988 (UK). For this, amongst other reasons, New Zealand does not follow the US doctrine of fair use. This can cause confusion amongst lay people in New Zealand who think that copyright law allows them to take certain percentages or a certain number of features of others' copyright works.
Broadly speaking “fair dealing” or “fair use” is dealt with in two ways in New Zealand – it either falls into the narrow statutory exception to infringement for fair dealing for the purposes of criticism, review or news reporting in the Copyright Act 1994 OR it is part of the infringement assessment applied by the courts.
An example of a relatively recent “fair dealing” dispute is between Sky Sport and Fairfax in 2016 over Olympic Games coverage and then between Sky Sport and Fairfax, NZME and TVNZ over the length of clips of rugby shown on television.
Neither “fair dealing” nor the test for whether an allegedly infringing work copies a substantial part of the original copyright work and whether it bears objective similarity are easy assessments to make. They are both qualitative and not quantitative, there being no hard and fast rules about percentages or number of elements that can be covered.
Given the fame of the parties and the subject of the work (Prince), the case has all the hallmarks of a Hollywood drama. It seems unlikely to have any influence on New Zealand copyright jurisprudence however, given the somewhat different copyright regimes in each country and particularly the assessment of the meaning or message of the works.
That said, the question being asked of the Supreme Court in the United States, is Goldsmith’s original photograph of Prince “too visibly baked into Warhol’s iteration”, is essentially the same question New Zealand courts would ultimately be asked to decide.