08 Apr 8 April 2022
In this issue of zoom-in brief, it’s copyright all the way: the US Supreme Court is to decide the long-running fair use dispute between photographer Lynn Goldsmith and the Andy Warhol Foundation, over its use of Prince screen prints; back in the UK, Ed Sheeran finally prevails in his copyright dispute with Sami Chokri over the ‘Oh I’ hook of his hit song, Shape of You; whilst back in the US, former President Trump is ordered to testify under oath in a copyright case brought against him by reggae singer Eddy Grant overuse of Electric Avenue.
The US Supreme Court is going to hear a case brought by a photographer over Andy Warhol’s use of her photographs in making screen prints featuring legendary music icon Prince. The lawsuit which has been going on since 2017 pits the Andy Warhol Foundation against photographer Lynn Goldsmith.
In 1981 Goldsmith took photographs of Prince on an assignment for Newsweek magazine. In 1984 she licensed an image to Vanity Fair, who used it when commissioning pop-art icon Andy Warhol to create an illustration. Warhol then also used the image to make a series of screen prints called the Prince Series. These screen prints are in a similar style to Warhol’s iconic screen prints of Marilyn Monroe and others, which have worldwide fame.
Goldsmith said she only found out about these images when Vanity Fair used one of them to illustrate an article about Prince following his death in 2016. After approaching the Andy Warhol Foundation, the foundation sued her, seeking a ruling that Warhol’s use of her photograph was fair use and therefore not an infringement of Goldsmith’s copyright. The New York court agreed that it was fair use, holding that Warhol’s colour screen prints were in “stark contrast” to Goldsmith’s black and white photograph, Warhol’s works transformed Goldsmith’s photograph of Prince as a “vulnerable human being” instead depicting him as an “iconic, larger-than-life figure.” Under the current law, whether a new work has “transformed” the original is a key question in determining whether it falls within the fair use doctrine.
The appeal court, however, took a different view. It found that Goldsmith’s original photo remained the “recognizable foundation upon which the Prince series is built” and as such that it did not constitute transformative use. The court took the view that to be transformative a work must have a “fundamentally different and new artistic purpose and character.”
The Warhol Foundation appealed to the Supreme Court, which has now agreed to hear the case.
Lawyers on both sides consider the matter to be high stakes. The Andy Warhol Foundation’s lawyers claim the appeal court ruling chills artistic speech, and risks not just future artworks, but the enjoyment of existing works. Goldsmith, on the other hand, maintains that she is fighting for her own rights and those of all photographers to make a living by licensing their creative works, and to decide how and when to exploit their work or allow others to do so.
The judgment is likely to be an important ruling on the fair use doctrine in US copyright law, which is likely to clarify the extent to which a work must be transformative to avoid infringing the copyright in the original work. Artists and other content producers around the world who rely on fair use will no doubt be watching with interest. zoom-in will report on developments.
Singer-songwriter Ed Sheeran has won a copyright case over his 2017 hit song Shape of You. Sami Chokri, who performs under the name Sami Switch, claimed that the repeated “Oh I” hook in Sheeran’s song was copied from the “Oh why” hook in Chokri’s 2015 song Oh Why.
Sheeran began the claim in 2018 seeking a declaration that he and his fellow songwriters had not infringed copyright, after Chokri and his co-writer,Ross O’Donoghue,asked the Performing Rights Society (PRS) to add them to the hit’s credits as co-writers. This caused PRS to suspend all royalty payments relating to the song.
A High Court judge found that Sheeran had not copied from Chokri either deliberately or subconsciouslyand had not even heard his song. Musicology experts gave contrasting views during the trial, but the judge was clear that Sheeran had not copied the work. Although there are similarities between the “Oh Why”hook and the “Oh I”phrase, the judge also noted significant differences. The evidence that Sheeran had ever heardOh Why was no more than speculative. In any event, the judge closely analysed the elements of the song and the writing processand decided that the evidence that the “Oh I” refrain originated from sources other than Oh Why was “compelling”.
The judge rejected the suggestion that the fast speed at which Sheeran wrote songs is any indication of copying.Listening to the sounds as a whole, he considered that the two phrases play very different roles in their respective songs.
For a UK court to find copyright infringement, two elements must be present: first there must be sufficient objective similarity between the infringing work and the earlier copyright work (or a substantial part thereof), for the former to be properly described as a reproduction or adaptation of the latter (but not necessarily identical with); secondly, the copyright work must be the source from which the infringing work is derived. Accordingly, even if the allegedlyinfringing work is inspired by the copyright work, there will be no liability for copyright infringement unless the result is close enough to the original, or a substantial part of it. Further, it cannot be an infringement, no matter how closely it resembles the original, if it was arrived at completely independently or derived from some quite independent source. In this case, the court found that the two works were not so close, and also that there was compelling evidence that Oh Why had not been the source of Sheeran’s inspiration.
Shape of You was the UK’s 2017’s best-selling song, and the most streamed song ever in the UK.In a video released after the judgment Sheeran said that such “baseless” claims are “way too common”.
Former US President Donald Trump has been directed to testify under oath in a copyright case brought against him by reggae singer Eddy Grant. Grant sued Trump over the use of his 1982 hit song Electric Avenue in an advert in 2020 during the last presidential election campaign. A 40-second sample of the song was used in a short animation posted to Trump’s Twitter account. The animation showed Trump’s then campaign rival Joe Biden travelling slowly in a handcar whereas a Trump campaign train travels a high speed.
It was viewed more than 13.7 million times before it was taken down a month later, and, according to the lawsuit the tweet was liked more than 350,000 times, re-tweeted more than 139,000 times, and had received almost 50,000 comments.
As well as seeking to rely on Presidential immunity, Trump’s lawyers responded stating that the animation was fair use in that it was political satire and therefore exempt from US copyright law. They also claimed he reposted the animation without knowing where it came from.
Trump failed in an attempt to have the Manhattan lawsuit dismissed last year, with a judge rejecting the fair use arguments as a reason to dismiss the claim at that stage. The judge said: “the defendants have offered no justification for their extensive borrowing”. Both Grant and Trump are expected to give evidence in the form of depositions in June. Grant is seeking $300,000 in damages.
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