By: Erin Howlin
If you look closely at some logos or the inside cover of a book, you’ll discover a small “C” enclosed by a circle. Although small, this symbol represents a protection that a company or brand has from others copying their work. The Copyright Act of 1976 is the basis of copyright law in the United States and generally applies to works that have the copyright symbol.
However, there are some works that do not have the copyright symbol— like songs, paintings, or pictures— that the terms of the Copyright Act can still apply to. Because these works are not expressly stamped with the “C,” there is more debate about whether they are subject to copyright. Furthermore, in an age where technology is everchanging, how do historical laws and acts stay up to date with the tech? This is exactly what the Supreme Court is facing in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.
Litigation between the Andy Warhol Foundation and Lynn Goldsmith began in 2017, when the art foundation preemptively sued celebrity photographer Lynn Goldsmith, who alleged copyright infringement by the Foundation on a portrait she took of Prince. The basis for the lawsuit is whether the Foundation copyrighted Goldsmith’s photo and if the Foundation’s remodeling of Goldsmith’s original image is “unique enough” to qualify as its own work. Although there are some guidelines to help creators determine whether or not they will be copyrighted, these laws face challenges when new technology is too advanced for our old laws.
In 1981, famous photographer, Lynn Goldsmith, captured a black and white photo of singer, songwriter, and dancer, Prince. The black and white portrait was licensed to fashion and entertainment magazine, Vanity Fair, to be used in an article in 1984. The Foundation made edits to the image by adding color and the edited version appeared in the magazine. Before Andy Warhol passed in 1987, he continued to use this photo for more creative pieces. When Prince passed away in 2016, Vanity Fair printed a photo of Prince, which sparked the litigation between the Warhol Foundation and Goldsmith. The issue the court faced was whether the Warhol Foundation had transformed Goldsmith’s photograph to give it a new and unique meaning. The Warhol Foundation claims they reinvented the image to give it new meaning, and therefore it was protected under the fair use doctrine, a defense to copyright infringement claims. Goldsmith, however, disagreed and argued her work was stolen.
The Copyright Act’s intended purpose is to protect an author’s original work, including literacy, dramatic, musical, architectural, pictural, graphic, audiovisual work, and much more. The interpretation of the Act has been quite malleable due to its broad language and the development of technology over the last 50 years. In the 18th Century, modeled after Britain’s Statue of Anne, Congress passed the First Copyright Act which protected books, maps, and charts for only fourteen years. In the 19th Century, the Supreme Court decided the first copyright case that granted Congress the power to require conditions for copyright and prohibited copyrighting court opinions. In the early 1900’s Congress passed the first comprehensive copyright law of the 20th century. Signed by Theodore Roosevelt, this Act granted protection to works published with a valid copyright notice on copies, while anything without this notice fell into the public domain. Some 60 years later, Congress then passed our current Copyright Act, which lays out three basic requirements for copyright protection: it must be original, a work of authorship, and must be in a tangible medium of expression.
As noted earlier, Congress passed our current Copyright Act in 1976. The litigation in front of the Court today occurred due to an ambiguity in the law, which leaves creators and artists unsure of the extent to which they must remodel images for them to be “unique enough” to classify as an original work. Congress passed the Act before most of the modern technology we have today was introduced. For example, when the 1976 Act was put into effect, the first computer was just being introduced. It took years for companies to develop software that allowed users to paint, draw, edit, and remodel work. Currently, computers can install programs like Adobe Photoshop where users can create, enhance, or otherwise edit images, artwork, and illustrations and additionally, change backgrounds and simulate a real-life painting. The Andy Warhol Foundation made edits like these by resizing the image, altering the angles of Prince’s face, and changing the tone, lighting, and colored details. Now, the Supreme Court must make a determination on the new cutting-edge ability of computers by applying provisions of an Act from 1976. Applying law from 1976 to an issue that deals with copyright involving new technology seems like an impossible task for the Justices. Many commentators believe that the Copyright Act needs to be modified to fit the current technology. Doing so could give artists more specific and less ambiguous guidelines regarding their work. In applying old laws to new technology, there are more hurdles for creators and decision makers alike.
As the Court continues to monitor the litigation between the parties, the bigger issue at hand is how many more artists and creators will face this issue. Modern day technology allows for endless possibilities of creation due to the programs and features the tech entails. But, the provisions of the Copyright Act leave most creators with their shoulders shrugged and in limbo with old laws hindering their creative crafts. By modifying the Act to fit modern-day tech, artists would be able to freely create with rules that fit the technology they use to create.
Student Bio: Erin Howlin, originally from Long Island, New York, is a second-year student at Suffolk University Law School. She is a staff writer on the Journal of High Technology Law. She is also the Treasurer and Vice Justice of Phi Alpha Delta and Secretary of the Real Estate and Trusts and Estates Association. Erin graduated magna cum laude from Roger Williams University (Bristol, RI), receiving a Bachelor of Science Degree in Legal Studies and Political Science.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
