Key Takeaways in Warhol v. Goldsmith SCOTUS Oral Arguments from Dunstan Barnes Featured in IPWatchdog

12.08.22 9:50pm

The Prince photo fair use fight has made its way to the Supreme Court of the United States. IPWatchdog covered the “lively” discourse in their article, “SCOTUS Justices Lob Tough Questions at Both Sides” and featured commentary from Dunstan:

“The justices seemed keenly aware of the need to balance contemporary artists’ ability to use artistic references to create new creative works versus the rights of copyright holders, including the rights to create derivative works. Goldsmith’s counsel was looking at how a potential decision would impact copyright in areas outside of visual arts, such as movies and books. If potential infringers can broadly state that they are changing the purpose of the original art, there is a risk of gutting copyright protection for original creators.

Towards the end, Justice Gorsuch tried to nail down the government to state its test for fair use. If we side with you and write this opinion, what should ultimately be the test for using a copyrighted work? Should the use of a copyright work be necessary, essential, highly useful, or at least useful? Which one should be the test? After some back and forth, the government attorney settled on necessary or at least useful. However, these two terms seem very different in effect, so if this standard is adopted, it will be interesting to see how lower courts apply it.

The rebuttal argued that respondents had made key concessions and then refocused on the rights of the contemporary artist to be able to create. Will we have a fair answer in the end? It will be very interesting to see how this plays out.”

Read the full article here.