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The Patron Saint of Superheroes

Chris Gavaler Explores the Multiverse of Comics, Pop Culture, and Politics

[Update: SCOTUS ruled on May 18, 2023, which I discuss here.]

[Update: Since I wrote this series of posts in spring 2021, an appeal went to the Supreme Court in October 2022, which I discuss here and here.]

That’s an image of Prince. I made it. How exactly I made it I’ll talk about later (because process may or may not matter legally), but I “used” a 1981 photograph of Prince taken by Lynn Goldsmith:

Is my use of Goldsmith’s photograph “fair use” or am I violating copyright law? It’s a basic question that lacks a basic answer. As a starting point, the relevant portion of the legal code, 17 U.S. Code § 107, has been law since 1976:

“Limitations on exclusive rights: Fair use

“Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

“(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

“(2) the nature of the copyrighted work;

“(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

“(4) the effect of the use upon the potential market for or value of the copyrighted work.

“The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”

While all four factors matter, I’m setting aside all but the third (though for sake of argument, let’s say my above image of Prince is of a commercial nature even though this blog clearly isn’t). The question then is: what “amount and substantiality of the portion used” falls under fair use? The answer is difficult to determine because the precise meaning of those words is interpreted by judges case by case.

Sometimes size seems to matter. The 1989 Love v. Kwitny ruling denied fair use after the defendant published half of an unpublished manuscript, while the 1991 Wright v. Warner sided with the defendant after the biographer quoted no more than 1% of Richard Wright’s unpublished letters. A lower judge suggested a 10% standard in the 2014 Cambridge v. Patton, which was struck by an appeals court in favor of case-by-case flexibility. That makes sense since the issue is more than objective quantity. In the 1982 Roy Export v. CBS, the defendant was not permitted to use 75 seconds from a Charlie Chaplin film in part because the selection included “the ‘gems’ of Chaplin’s motion pictures.” Similarly, the defendant in the 1997 Los Angeles News Service v. KCAL-TV lost on appeal because “the use was substantial even though KCAL broadcast only 30 seconds of the four minute, 40 second Videotape [of the Rodney King police beating] because it was the heart of the work.” But in the 1996 Monster v. Turner, the court allowed a biographical film on Muhammed Ali to use 41 seconds from a boxing match, without regard to whether the selection was “the heart of the work” or not.

For the 1994 Campbell v. Acuff-Rose Music (2 Live Crew sampled “Pretty Woman”), Justice Souter emphasized “whether the new work merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning or message.” Because the something new that 2 Live Crew added was parody, the case speaks mostly to the first criteria (purpose), establishing a Supreme Court precedent for evaluating fair use.

Let’s say I did not intend my Prince image as a parody (though given the degree and effect of the distortions I could claim it is), but as a non-parodic work of visual art. The question then is whether that further purpose, the image’s differences in character, and its altered expression, meaning, and/or message is sufficiently furthered, different, and altered to be protected under fair use.

I chose Goldsmith’s photograph because Andy Warhol used it in 1984 when commissioned by Vanity Fair to create an original work depicting Prince. Vanity Fair licensed use of the photograph from Goldsmith’s agent as a “source photograph” attributed to Goldsmith when Warhol’s work appeared in the magazine. Warhol later made additional images, called the Prince Series, which came to Goldsmith’s attention when one was featured on the cover of a tribute magazine to Prince after his death in 2016. The tribute magazine licensed the image from Warhol’s estate, and Goldsmith was not attributed or compensated.

In 2019, Judge Koeltl ruled: “The Prince Series works can reasonably be perceived to have transformed Prince from a vulnerable, uncomfortable person to an iconic, larger-than-life figure. The humanity Prince embodies in Goldsmith’s photograph is gone. Moreover, each Prince series work is immediately recognizable as a ‘Warhol’ rather than as a photograph of Prince — in the same way that Warhol’s famous representations of Marilyn Monroe and Mao are recognizable as ‘Warhols,’ not as realistic photographs of those persons.”

That ruling was appealed and overturned in 2021 by the U.S. Court of Appeals for the Second Circuit. Evaluating the third factor, they concluded: “the degree to which Goldsmith’s work remains recognizable within Warhol’s, there can be no reasonable debate that the works are substantially similar.” The judges also admonished the lower court to “not assume the role of art critic and seek to ascertain the intent behind or meaning of the works at issue. That is so both because judges are typically unsuited to make aesthetic judgments and because such perceptions are inherently subjective.” They instead directed courts to “examine whether the secondary work’s use of its source material is in service of a ‘fundamentally different and new’ artistic purpose and character, such that the secondary work stands apart from the ‘raw material’ used to create it.” 

Though I agree with the appeals court that “it is entirely irrelevant to this analysis that ‘each Prince Series work is immediately recognizable as a ‘Warhol,'” Koelt’s point might rest in how ‘Warhols’ contrast and so are distinct from “realistic photographs” like Goldsmith’s. But even when read charitably, Koelt’s judgment is overruled and a new criteria established: if the “raw material” used in the creation of an image remains recognizable, then the image is not protected by fair use (except in special cases, including parody).

That could be a problem for the Warhol estate, since some of the most famous and expensive Warhols apparently are not protected either.

The raw material of Warhol’s numerous “Marilyn” paintings is a photograph taken by Eugene Korman to be used as publicity for the 1953 film Niagara. Korman was employed by 20th Century Fox, who, based on The Andy Warhol Foundation v. Goldsmith, could sue the Warhol estate for financial compensation (Orange Marilyn sold $17.3 million in 1998) and control of Warhol’s artwork.

For his Obama political poster HOPE, Shepard Fairey used a photograph taken by Mannie Garcia while covering a press conference for the Associated Press. The Associated Press sued Fairey and the two settled out of court in 2011. (Fairey later pled guilty to fabricating evidence that he had used a different photograph.)

Since the very different purpose of HOPE was to help Obama win the 2008 Democratic primary, factor one (purpose) seems especially significant. Looking only at the third factor though, the degree to which the raw material of Garcia’s photograph remains recognizable is similar to the Warhols.

But Warhol Foundation v. Goldsmith is not the only precedent. In the 2014 case Kienitz v. Sconnie Nation and Underground Printing, the circuit judges ruled in the opposite direction. The defendants downloaded a photograph from the Madison, Wisconsin city website to use for a t-shirt design ridiculing Mayor Peter Soglin.

The appeals court upheld the lower court’s ruling that the image was protected by fair use. Though they felt “the most important usually is the fourth (market effect),” the third factor, “the amount taken in relation to the copyrighted work as a whole—has much bite in this litigation.” They write:

“Defendants removed so much of the original that, as with the Cheshire Cat, only the smile remains. Defendants started with a low resolution version posted on the City’s website, so much of the original’s detail never had a chance to reach the copy; the original’s background is gone; its colors and shading are gone; the expression in Soglin’s eyes can no longer be read; after the posterization (and reproduction by silk-screening), the effect of the lighting in the original is almost extinguished. What is left, besides a hint of Soglin’s smile, is the outline of his face, which can’t be copyrighted. Defendants could have achieved the same effect by starting with a snapshot taken on the street.”

The court’s description is odd. Only in a hyperbolic sense does “only the smile remain” from the source photograph. Though it’s technically true that “so much of the original’s detail never had a chance to reach the copy,” the amount of detail in the low resolution version is highly significant. It’s also true that the defendants could have taken a snapshot of Soglin on the street and used it as their source material, but they didn’t, and whatever “effect” that hypothetical image might have had seems irrelevant. More importantly, there is considerably more “left” than “a hint of Soglin’s smile” and “the outline of his face.” And most importantly, it seems highly questionable whether the t-shirt image only contains content “which can’t be copyrighted.”

If outlines and hints of features can’t be copyrighted, then the Picasso estate cannot control rights to many of the artist’s drawings:

Outlines of faces and hints of their features also describe cartoons. Can the following not be copyrighted either?

What about outline-defined logos?

This would seem to relate to the Los Angeles News Service v. KCAL-TV decision which rejected fair use because the duplicated portion of a videotape “was the heart of the work.” In terms of single-image representation, some details always matter more than others, so “the heart” would presumably refer to only those areas that make portrayed faces recognizable. Yet Warhol Foundation v. Goldsmith and Kienitz v. Sconnie Nation draw opposite conclusions. While the amount of detail contained in the Warhol and the t-shirt appears objectively similar, the two panels of judges described them as diametrically different. For the image of Prince, “there can be no reasonable debate that the works are substantially similar,” but for the image of Mayor Soglin, what remains of the original is so scant it “can’t be copyrighted.”

I began this post expecting it to run my usual 1000-word range, but I'm close to doubling, with apparently lots more to go. So more next week ...

[Spoiler Alert: This somehow evolved into a four-part analysis (one, two, three, four), with an on-going artistic coda starting here.]

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