Warhol Continued: A Threat to Art as We Know It?

A year and a half ago, the United States Supreme Court issued the groundbreaking Warhol decision. While the Supreme Court focused on a narrow aspect of the fair use doctrine, Warhol has already had a profound impact on the copyright landscape.

Warhol focused on one factor—the purpose and character of the use of a copyrighted work, as discussed in our prior alert. The Supreme Court examined whether the purpose and character of Warhol’s artwork depicting Prince based on a photograph by Lynn Goldsmith was a fair use. The Supreme Court veered away from the standard analysis—whether the new work transformed the original work—to determine whether the works served the same commercial purpose.

Post-Warhol, courts appear to be struggling to determine how this shift will impact fair use. This presents the risk of even more disarray and inconsistent decisions, and the decisions addressed here are proof of the uncertainty.

Whyte Monkee Productions v. Netflix

The Netflix “Tiger King” case before the Tenth Circuit is one such example. The Tenth Circuit originally ruled that Netflix was stuck in a copyright infringement case from a former employee of “Tiger King” star Joe Exotic. At issue was Netflix’s use of various video clips shot by the former employee in the “Tiger King” show. One clip was shot after the employee stopped working for Exotic, and thus, was not owned by Netflix. The Tenth Circuit, relying upon Warhol, found the use of the clip was not sufficiently transformative because the streaming service did not add any “commentary” to the video.

The Tenth Circuit granted rehearing of its decision and reheard the case on July 10, 2024.  Netflix and interested outsiders who filed amicus briefs urged the Tenth Circuit to reconsider its decision, arguing that the court misread Warhol. Netflix expressed concern that the Tenth Circuit’s decision “will severely disrupt documentary filmmaking by calling many well-established forms of documentary practice into question.” Documentarians often use excerpts of other works when creating documentaries. And the Tenth Circuit’s decision would have an “immense chilling effect” if it stands. A new decision post-rehearing has not yet been issued by the Tenth Circuit.

Sedlik v. Kat Von D

The lawsuit filed by Jeffrey B. Sedlik against Kat Von D raised similar concerns as the case against Netflix. Sedlik sued Kat Von D for producing a tattoo of Miles Davis based on his photograph from the cover of Jazziz Magazine. Kat Von D testified at the trial that “nobody” in the tattoo industry secures a license when producing a tattoo. If tattoo artists were required to obtain licenses for every tattoo based on another work, it would cause a chilling effect on the industry and artistic expression moving forward. Kat Von D ultimately prevailed at trial. To learn more about the trial see our previous alert, "The Battle After Warhol: Tattoos as Artwork or Infringement?"

Steve King v. Griner (aka “Success Kid”)

A different interpretation of Warhol arose in the courts in the Eighth Circuit. An ex-Iowa lawmaker, Steve King, used the “Success Kid” meme in a fundraising post. The child’s mother, Laney Griner, sued King, succeeded, and was awarded $750 in damages in District Court. King argued on appeal that he had an “implied license” to use the meme during his campaign. King appealed, arguing that the Eighth Circuit would overturn the decision.

The Eight Circuit, however, doomed King and his fair use defense. The Eighth Circuit applied Warhol, and held that King’s use of the meme was not very different from Warhol’s portrait of Prince. Both Warhol and King used the images to make money and for purely commercial purposes. The frequent use of the meme by others was “not a particularly compelling justification, especially considering the vast majority of these uses [were] non-commercial.” King lacked an independent justification to use the meme without a license—it was purely for the commercial purpose of soliciting campaign donations, and the use did not convey a new meaning or message.

Takeaways

As noted by Justice Kagan in her dissent for Warhol, “let’s be honest, artists don’t create all on their own; they cannot do what they do without borrowing from or otherwise making use of the work of others.” The first factor of the fair use test was created to provide “breathing space” so that artists could “use existing materials to make fundamentally new works, for the public’s enjoyment and benefit.”

This recent precedent indicates that Warhol may hinder the creative freedom often granted to artists in favor of commercial uses and definitions. While the judiciary may use Warhol to set boundaries, the Kat Von D trial shows if the decision is left in the hands of the lay person, the outcome may be more forgiving for an artist. Application of Warhol is worth following to see what other developments arise.

Hodgson Russ’s intellectual property team helps clients protect their intellectual property rights by prosecuting and defending copyright infringement claims. For more information, please contact our Intellectual Property Litigation Practice Group.

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