In the last few years, aided by the rise of non-fungible tokens (“NFTs”), digital art has become an increasingly important part of the art market.  Now a new frontier seems to be opening up: art that is created at least in part using artificial intelligence (“AI”) technology.  Indeed, just as NFTs have crossed into the traditional art market, artists who are creating using AI are likewise being welcomed onto the art scene (for example, by gaining gallery representation).  As this trend unfolds, we art lawyers find ourselves wondering how AI art will interact with our current copyright system. 

Last week, the Supreme Court heard oral argument in the major copyright case of Warhol Foundation v. Goldsmith, which could provide a significant opinion about the "fair use" defense to copyright infringement, with wide-ranging potential implications for the art world—especially appropriation art, photography, and copyright licensing and management.  The oral arguments, however, underscore both the magnitude of the questions posed, and the odd aspects of the case’s path to the Supreme Court, which arguably complicate the Court’s ability to grapple with the already-complex issues it presents. 

A recent trial has highlighted some of the unique legal issues posed by cases that seek to apply copyright law to tattoo art.  At the center of the case is a group of tattoos on the back and arms of pro wrestler Randy Orton—tattoos which were then incorporated, without the artist’s permission, into a series of World Wrestling Entertainment video games as part of Orton’s appearance in the game.

A copyright infringement dispute now pending in a California federal court is raising interesting questions about how copyright applies to tattoo art—as well as some familiar questions about transformative use of photographs. 

An infringement case pending in a California federal court raises some interesting questions about how copyright law applies in the context of interactive art installations—an important topic in an art market that is increasingly exploring these innovative forms and mediums.

We wrote recently about the Warhol Foundation’s petition to the Supreme Court, asking the Court to review a case involving claims by photographer Lynn Goldsmith.  Goldsmith sued over Warhol’s use of a photograph in creating a series of artworks, and the Foundation argued that Goldsmith’s claims should fail due to the fair use doctrine, which provides a defense to copyright infringement claims.  A federal district court sided with the Foundation, but the Second Circuit reversed, and in the process issued an opinion that further complicated the already-complex landscape of fair use case law, especially as applied to artists whose creations incorporate, appropriate, reference, or otherwise make use of works by others. 

Famed artist Jeff Koons is no stranger to litigation; indeed, it might be argued that his litigation history is part of his artistic legacy.  We’ve written before about his works, which frequently test the boundaries of copyright infringement and fair use (see here for one example) and his fabrication and sales practices which have also sparked dispute (see here).  Now Koons is back in court as a defendant in a federal lawsuit by sculptor Michael Hayden over his reproduction of a Hayden creations in one of his famous “Made In Heaven” artworks.  The case promises to raise many familiar but difficult questions about the extent to which artists can incorporate other creators’ work into their own.

A couple of years ago, we wrote about “Rabbit Town,” a “selfie tourism” theme park in Indonesia where visitors can take photographs set against fantastical backdrops.  The park charges admission for access to the park, which features several attractions that essentially recreate famous art installations from around the world, including works by Yayoi Kusama and imitations of scenes from the Museum of Ice Cream.  The Rabbit Town versions often have different titles and do not credit the original artist.  Now, Rabbit Town is facing a court order to destroy one of its attractions, an installation called “Love Light,” which is strikingly similar to Urban Light, a work by the late artist Chris Burden.  

Since 2017, we’ve been following the federal lawsuit between the Andy Warhol Foundation and photographer Lynn Goldsmith.  In mid-2019, a federal judge in New York dismissed Goldsmith’s copyright infringement claims against the Foundation, ruling that a series of Warhol artworks based on an image taken by the photographer were protected as fair use.  But now, the Second Circuit Court of Appeals has reversed that decision, in an opinion that has potentially wide-reaching impacts for the Foundation, for appropriation art generally, and for anyone in the art world who is interested in the ongoing question of how courts handle the difficult concept of fair use.  

At the very end of 2020, Congress enacted new legislation that will provide a streamlined process for adjudicating small-claim copyright infringement cases.  The Copyright Alternative in Small-Claims Enforcement Act of 2020 (the “CASE Act”), included as part of the COVID-19 Relief Bill, establishes a new Copyright Claims Board (“CCB”) to oversee claims of copyright infringement that do not exceed $30,000.  Some see this is an efficient solution for those seeking to adjudicate minor copyright disputes, while others view this legislation as a potential avenue for attacks on everyday internet users who may lack the resources to track and opt out of these proceedings.

As we leave 2020 behind, we’ve put together a brief update on some of the Supreme Court’s most significant 2020 decisions that have implications for the art world, as well as a couple of cases that have been argued but not yet decided.

This blog has written before about acclaimed conceptual artist Cady Noland, who has a reputation for being particular about how her works are installed, maintained, exhibited, and sold.  As our previous posts explain, she has even, on more than one occasion, disavowed an artwork she created, prompting litigation.  Now, a federal judge has issued a ruling in Noland’s most recent legal skirmish, dismissing her attempt to bring copyright infringement claims related to the restoration of one of her artworks.

Netflix’s “Tiger King” has become one of the streaming service’s most popular series in the last few weeks, documenting the years-long fight between Joe Exotic (né Schreibvogel), the self-proclaimed “Tiger King,” and Carole Baskin, founder and CEO of Big Cat Rescue Corp. (“Big Cat Rescue”).  The feud led to three separate intellectual-property lawsuits that bankrupted Exotic and serve as a cautionary tale as to how competitive antics can have severe legal consequences.

A recent federal court decision provides some insight into how U.S. copyright law might apply to the unique medium of tattoo art.  

Last week, in response to the COVID-19 pandemic, the Internet Archive launched the National Emergency Library, a digital collection of 1.4 million books that can be accessed by unlimited users for free.  However, despite the decidedly noble mission, some authors and their advocates are bemoaning the potential negative consequences such a project may have on struggling authors who rely on copyright protection.  We, like many in the art world, will be paying attention to how this tension plays out, because copyright issues—regardless of genre—often have important implications for all art mediums.

In late 2019, the House of Representatives passed, with a rare show of bipartisan support, a bill that seeks to create what some have described as a small-claims court for copyright litigants.  The bill has now been sent to the Senate; if approved by the Senate and signed by the President, it would create an alternative forum for some types of copyright claims.

On January 1, a new cache of literature, music and art became part of the public domain as another year of copyright protection expired.  Until 1998, most works created before 1978 were protected under U.S. copyright law for 75 years after creation.  But in 1998, with the passage of the Sonny Bono Copyright Extension Act, copyright protection of these older works was extended an additional 20 years, meaning that no additional works would again join the public domain until 2019.  Now, at the start of each year, creative works produced more than 95 years prior become available for public use and enjoyment.

A legal battle that has spanned decades and continents has finally been resolved in a California federal court.  Last month, the Northern District of California granted partial summary judgment in favor of Alan Wofsy on copyright-infringement claims stemming from his use of certain copyrighted photographs in his comprehensive reference catalogue of Picasso’s work, holding that Wofsy’s project constitutes “fair use.”

Earlier this month, a federal judge in New York dismissed a photographer’s copyright infringement claims against the Andy Warhol Foundation, after determining that a series of Warhol artworks based on an image taken by the photographer are protected as fair use. The ruling represents another entry in the ever-growing log of court decisions grappling with the sometimes-slippery concept of transformativeness in copyright law.

In a unanimous decision earlier this month, the Supreme Court resolved a debate that impacts would-be copyright infringement litigants.