Friday’s Endnotes – 10/14/22

Brian Burns / October 12,2022

Supreme Court Struggles with Warhol’s Transformative Use Theory — Wednesday’s oral arguments in Andy Warhol Foundation v. Goldsmith dominated the copyright news this week. First up, Kevin Madigan writes a play-by-play summary of the arguments, concluding, “While the Justices at times seemed skeptical of AWF’s position that a mere difference in meaning or message constitutes a transformative use, it’s difficult to predict an outcome based on oral arguments—especially with copyright stalwarts Ginsburg and Breyer no longer on the bench.”

The Surprisingly Confused History of Fair Use: Is it a Limit or a Defense or Both? — Next, Marquette Law School professor Bruce Boyden continues his illuminating series on the legal history of the fair use doctrine. In this first article, he observes how early courts used the term to encompass both a carve-out to infringement and a description of noninfringement. In Alan Latman and the Modern Fair Use Doctrine, Boyden looks at a Copyright Office report from 1955 that considers whether and how a revised copyright statute should address the doctrine.

Andy The Appropriator: The Copyright Battles You Won’t Hear About at The Whitney’s Warhol Exhibit — Finally, this 2019 Columbia Journal of Law & the Arts article notes that Goldsmith is not the first time the artist or his foundation faced claims of infringement. According to the article, “Warhol was sued at least three times by photographers who filed copyright infringement claims against him for using their photographs in his work. . . . All three photographers settled with Warhol out of court, but Warhol vowed to use his own photographs in his work thereafter.”

More Than 20,000 Pirate Sites Are Blocked By ISPs Around the Globe — “The Motion Picture Association has provided a fresh overview of global pirate site-blocking efforts, which now span over 20,000 sites. Blocking measures have expanded to 39 countries in recent years, with the United States remaining the key absentee. The lack of US participation is partly due to a shortcoming in US copyright law, which lacks a carve-out for no-fault injunctions.”

Scholar Identifies First Motion Picture Copyright Registration — A big discovery. “This summer, Kluge Fellow Claudy Op den Kamp discovered a letter dated November 14, 1893, from Dickson to Librarian of Congress, Ainsworth Rand Spofford, who was also acting as Register of Copyrights. Dickson asked about the status of the copyright application he submitted the previous month. To Op den Kamp’s great surprise, the letter included eighteen small images printed in two strips on a single sheet. The photographs depicted three men standing around an anvil enacting a scene from a blacksmith shop.”

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