Archives for October 2018

Last week, we saw some movement in the high-profile lawsuit between the Andy Warhol Foundation and photographer, Lynn Goldsmith, regarding Warhol’s iconic Prince portrait series produced in 1984. Both parties have made their pleas and filed cross-motions for summary judgment which could lead to a decision from the court clarifying the boundaries of fair use in copyright law.

In 1984, Goldsmith gave Vanity Fair a license for a one time use of her photo of the musical artist, Prince, as source material for an illustration by Warhol. Warhol created the illustration as well as 15 other portraits of Prince. In 2016, shortly after Prince’s death, the foundation licensed one of those portraits to Conde Nast for the cover of a magazine. It was around this time that Goldsmith learned of the Warhol series after seeing the images posted online.

Last year, the Andy Warhol foundation filed a pre-emptive lawsuit against Goldsmith in order to squash her claims that Warhol’s Prince portrait series is a violation of her exclusive rights under copyright law. The Foundation claims that there is no evidence of copying as it is unclear which photo Warhol was inspired by; but more importantly they claim that the series is an exercise of the fair use doctrine due to the work’s transformative nature and the fact it does not usurp Goldsmith’s market. Goldsmith, on the other hand, claims that the essence of her photograph is still present in the portrait series and that there is an overlap in the markets for the work.

The decision from the court as to whether Warhol’s portraits constitute fair use will help clarify the boundaries of the doctrine as it relates to appropriation art. This is especially important after a controversial 2013 decision from the 2nd Circuit which was widely seen as expanding the doctrine and led other circuits to question whether the test for transformative use was too broad.

For more details about the Warhol case, please click here.
A copy of the complaint filed by the Warhol Foundation can be found here.

Click here for more information on how Castaybert PLLC can assist you in either enforcing or defending your artistic rights.

On September 18th, New York Attorney General Barbara D. Underwood, announced a settlement with WeWork Companies that will end their use of overly broad non-compete agreements for nearly all of its employees nationwide. This settlement ends the routine practice of WeWork requiring all levels of employees to sign a contract including a non-compete restriction regardless of job duties, knowledge of confidential information, or compensation.

In addition to the settlement announcement, the Attorney General’s office has also released “Non-Compete Agreements in New York State – Frequently Asked Questions” as a guide for employees to understanding the law on non-competes moving forward.

The guide provides insights concerning:

The legality of non-competes in New York State
Whether you should or should not sign a non-compete
How employers enforce non-competes
Your options if you signed a non-compete

A link to the guide can be found here.

Click here for more information on how Castaybert PLLC can assist you in drafting, enforcing, or negotiating your non-compete.

October 4, 2018.

So, you own a piece of art that you want to sell. Can you take and use pictures of the artwork to promote its sale without running afoul of copyright laws? Yes, you can according to a recent decision from the Southern District of New York in Stern v. Lavender (“Stern”).

Overview

In Stern, long-time studio assistants of noted photographer Bert Stern alleged that Stern gave them original copies of his famous photos from Marilyn Monroe’s last photoshoot before her death. The defendants, seeking to sell the photos, captured images of the photos which they posted on eBay, Amazon, and other digital retail websites to promote the sale. In response, Stern’s widow brought suit against the former studio assistants, alleging the promotional photographs violated 17 U.S.C. § 106 of the Copyright Act, which grants copyright holders the exclusive right to create derivative works.

Fair Use

The defendants argued that their promotional photographs constituted Fair Use pursuant to Section 107 of the Copyright Act. The Fair Use doctrine permits non-copyright holders to use copyrighted works without permission depending on a balancing of four factors:

(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 Southern District Court stopped short of resolving the case in favor of the defendants due to a factual dispute surrounding ownership of the photographs in question that could not be resolved at the summary judgment phase. In spite of this, the Court considered the above factors in finding that photographs of copyrighted works made to promote the sale of a copyrighted work constitute Fair Use under the Copyright Act.

First Sale Doctrine

It is worth noting that the Court also found that the defendants, if they are indeed the rightful owners of the original copies of the photographs at issue, were undoubtedly permitted to sell the works pursuant to 17 U.S.C. § 109(a), known as the First Sale Doctrine.

Conclusion

Final pre-trial conference for this case is scheduled for November 8, 2018, when the Court will decide whether the defendants are indeed the lawful owners of the photographs at issue. If the Court finds that the defendants are the lawful owners, they will prevail on a fair use defense. Otherwise, the Court’s fair use finding will simply serve as favorable precedent for art collectors and dealers looking to sell copyrighted works.

Find the full decision on Justia here.

To learn how CASTAYBERT PLLC can assist you with an art law issue, click here.