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. 

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. 

Since 2017, we’ve been following the federal lawsuit between the Andy Warhol Foundation and photographer Lynn Goldsmith; you can read our previous posts about it here, here, and here.  A few months ago, a revised opinion from the Second Circuit added further complexity to the story.  And now, the Warhol Foundation has asked the Supreme Court to give its opinion on whether the fair use defense protects the Foundation from Goldsmith’s copyright infringement claims. 

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.  

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.

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.

We here at Grossman LLP, along with many other legal commentators, have been following with interest the lawsuits against appropriation artist Richard Prince arising out of his controversial New Portraits works, first shown at the Gagosian Gallery in 2014, which Prince created from screen shots of photos taken by other Instagram users.  The court is now considering the defendants’ motions for summary judgment on the issue of fair use, which have been fully briefed.  But along with the main event—the summary judgment motion—the court is also considering additional motions filed by both parties with regard to each other’s expert witnesses.  These motions are worth examining because they will presumably be resolved along with the summary judgment decision, and they raise some interesting questions that may have implications in the larger arena of fair use case law.

Ever since Richard Prince’s “New Portraits” project first made headlines, we’ve been following the story—and the copyright implications.  Now, two lawsuits that arose out of that controversial exhibition are headed for a summary judgment ruling. 

​Last week, a federal judge refused a request by Sesame Workshop—creator of classic children’s television show Sesame Street—to enjoin parts of a marketing campaign for an upcoming R-rated comedy film featuring a much darker take on puppets.

This blog writes often about copyright law, including defenses to copyright infringement claims, such as fair use.  One recent decision highlights the “de minimis” defense to copyright infringement, which recognizes that there are cases where a defendant may use someone else’s copyrighted material in a way that is so minor that it does not give rise to a cognizable claim. 

A recent decision by the Second Circuit Court of Appeals adds further complexity to the ever-evolving body of case law discussing the difficult concept of the “fair use” defense in copyright law. The case will likely be of interest to the art world because of the importance of fair use to many forms of art, from parody to appropriation art.

Even when it comes to parodies, fair use litigation is rarely a cut-and-dried slam-dunk.