A recent U.S. Supreme Court opinion in a closely watched copyright case represents a shift in the court’s thinking about fair use, McGuireWoods partner Jonathan Ellis told The New York Times in a May 22, 2023, article.
The case concerned a photo of rock star Prince that artist Andy Warhol used as a reference for a series of illustrations, one of which was later licensed to Condé Nast to grace a magazine cover after Prince’s death decades later. The photographer alleged that Warhol’s use of her photo infringed her copyright; the foundation that owns Warhol’s works contended Warhol’s illustrations were “transformative” and represented a protected fair use under copyright law.
The lower court ruled for the photographer and the high court affirmed, holding that the licensing of the Warhol’s print to Condé Nast allowed the print to serve as “a commercial substitute” for the Goldsmith photograph in a manner that weighed against finding fair use. Justice Elena Kagan, joined by Chief Justice John G. Roberts, Jr., dissented, saying the court erred by brushing aside questions of whether Warhol’s prints transformed the original photograph to convey a different meaning and message.
“That’s a shift in the way the court has previously thought about fair use,” Ellis told The New York Times. The ruling “puts less emphasis on the creation of a work” and seems to direct lower courts away from transformation of the original work as the legal touchstone for fair use, he said.
Ellis and McGuireWoods Los Angeles partner Nick Hoffman represented a Stanford University art history professor who filed an amicus brief in the case. Unlike most amici, the professor didn’t support either party and sought only to aid the court in its analysis.
A co-chair of McGuireWoods’ appeals and issues team, Ellis has argued nine cases before the U.S. Supreme Court. One of those cases was a copyright dispute, Fourth Estate Public Benefit Corp. v. Wall-Street.com. Before joining McGuireWoods, he served as an Assistant to the Solicitor General of the United States and as a law clerk to Roberts.