Music Ally doesn’t get to write about Andy Warhol much, but a ruling by the US Supreme Court yesterday concerning one of his artworks has been hailed by music bodies there as being very important for our industry.
The ruling focused on a silk-screen image of musician Prince, which were created created by Warhol based on shots taken by photographer Lynn Goldsmith. The Andy Warhol Foundation had argued that Warhol’s work was ‘transformative’ enough to not be copyright infringement.
By a majority of 7-2 the Supreme Court disagreed, with a key factor being the use of Warhol’s ‘Orange Prince’ work by magazine Vanity Fair – putting it into the same commercial context as Goldsmith’s original photograph. That’s our in-a-nutshell description, but CNN has a good and detailed breakdown of the competing arguments and previous rulings.
Where is the music angle in this? That’s where the music bodies’ statements – issued very quickly after the ruling was announced – come in. It’s all about fair use.
“We applaud the Supreme Court’s considered and thoughtful decision that claims of ‘transformative use’ cannot undermine the basic rights given to all creators under the Copyright Act,” said RIAA chief Mitch Glazier. “Lower courts have misconstrued fair use for too long and we are grateful the Supreme Court has reaffirmed the core purposes of copyright.”
“Today’s Warhol Foundation decision is a massive victory for songwriters and music publishers. This is an important win that prevents an expansion of the fair use defence based on claims of transformative use,” added NMPA boss David Israelite.
Both of them are looking ahead to potential future legal battles over one of 2023’s biggest talking points in the music industry: creative AI.
“We hope those who have relied on distorted – and now discredited – claims of ‘transformative use,’ such as those who use copyrighted works to train artificial intelligence systems without authorisation, will revisit their practices in light of this important ruling,” said Glazier.
“It allows songwriters and music publishers to better protect their works from unauthorised uses, something which will continue to be challenged in unprecedented ways in the AI era,” was Israelite’s take on that, having argued in an amicus brief in the Warhol case that copyright owners “should have the right to make or approve decisions about new, reimagined uses of their works”.
There are, of course, alternative views. One of the Supreme Court justices, Elena Kagan, filed a dissenting opinion (you can read it as part of the overall ruling document here) warning that “copyright’s core value – promoting creativity – sometimes demands a pass for copying”. She also turned to music for an example.
“Suppose some early blues artist (W. C. Handy, perhaps?) had copyrighted the 12-bar, three-chord form — the essential foundation (much as Goldsmith’s photo is to Warhol’s silkscreen) of many blues songs,” she wrote.
“Under the majority’s view, Handy could then have controlled meaning, curtailed — the development of the genre. And also of a fair bit of rock and roll… Or to switch genres, imagine a pioneering classical composer (Haydn?) had copyrighted the three-section sonata form…”
Still, Kagan was in the minority (with chief justice John Roberts) for the Court’s ruling. It seems clear that the decision will embolden music rightsholders and their representative bodies in any future disputes over fair use and transformative works in music – including with the current and future waves of generative AI companies.
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