The Death of the Litmus Test; Chicago-Kent Intellectual Property Journal, December 20, 2023

Dale Cendali, Abbey Quigley , Chicago-Kent Intellectual Property Journal; The Death of the Litmus Test

Justices Will Probe Trademarks’ Nature in ‘Trump Too Small’ Case; Bloomberg Law, October 30, 2023

 Kyle Jahner, Bloomberg Law; Justices Will Probe Trademarks’ Nature in ‘Trump Too Small’ Case

"The fight over ‘Trump Too Small’ is the latest in a series of cases the court has faced in recent years raising First Amendment questions over trademark registrations. Although the justices skipped deciding the broader constitutional questions when they struck down different statutory registration bans in 2017 and 2019, this time the nature of the government’s argument may force the justices to now draw a line in the sand, he said."

Flo Rida, Old Lawsuits & ‘Raging Bull’: Supreme Court’s Big Music Copyright Case Explained; Billboard, October 3, 2023

BILL DONAHUE, Billboard; Flo Rida, Old Lawsuits & ‘Raging Bull’: Supreme Court’s Big Music Copyright Case Explained

"The phrases “retroactive relief” and “three-year lookback period” might make your eyes glaze over, but the Warner v. Nealy case has big implications for copyright-heavy industries like music....

“Without a clear national rule setting the temporal limits of recoverable damages, amici and their members face serious uncertainty.”"

Supreme Court to Clarify Copyright Infringement Limits in Case Against Warner Music; The Hollywood Reporter, September 29, 2023

Winston Cho, The Hollywood Reporter; Supreme Court to Clarify Copyright Infringement Limits in Case Against Warner Music

"The Supreme Court will clear up how far back copyright holders can recover damages for infringement in a case involving a Florida producer who sued Warner Chappell Music after Flo Rida sampled a song he owns.

The justices agreed on Friday to review an appeal from Warner Music and Artist Publishing Group of a lower court’s ruling that recovery for damages that occurred prior to the three-year window to sue is allowed. The decision may clarify uncertainty over whether there is truly open-ended copyright liability, as two federal appeals courts have recently held."

AMP v. Myriad: The Fight to Take Back Our Genes; ACLU, June 13, 2023

 Lora Strum , ACLU; AMP v. Myriad: The Fight to Take Back Our Genes

"Ten years after the Supreme Court invalidated the patents on two human genes in AMP v. Myriad, we revisit the landmark case amid renewed calls for gene patenting."

US Supreme Court takes up case dealing with the use of public figures’ names and likenesses in trademarks; Jurist.org, June 5, 2023

 Rebekah Yeager-Malkin | U. Pittsburgh School of Law, US, Jurist.org; US Supreme Court takes up case dealing with the use of public figures’ names and likenesses in trademarks

"The US Supreme Court announced Monday it will take up the trademark case Vidal v. Elster, to determine whether the application of Section 2(c) of the Lanham Act to political figures violates the First Amendment. 

The case surrounds the trademark application by Steve Elster for the phrase “Trump Too Small,” which Elster attempted to trademark for use on t-shirts. Elster’s application was denied by the US Patents and Trademarks Office and the denial was upheld by the Trademark Trial and Appeal Board for violating Section 2(c) of the Lanham Act, which bars a trademark that “Consists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent…”"

Supreme Court Rules That Andy Warhol Violated a Photographer’s Copyright; Smithsonian Magazine, May 24, 2023

Christopher Parker, Smithsonian Magazine; Supreme Court Rules That Andy Warhol Violated a Photographer’s Copyright

"Reactions to the Supreme Court ruling are mixed. Noah Feldman, a scholar of law at Harvard, writes in Bloomberg that the decision helps artists but harms creativity. 

“The upshot is that little-guy artists win, because they now have more rights than they had before to claim credit for works reused by others,” he writes. “But art as a whole loses, because the decision restricts how artists generate creativity by sampling and remixing existing works.”

Carroll tells the Times that the ruling leaves a lot of room for conflicting interpretations, and the legal battle has only just begun.

“Is it really just about competitive licensing use, or is it more broadly about creating derivative works?” he adds. “I think what you’ll see is lower courts reading it each way, and then eventually this issue is going to find its way back to the Supreme Court.”"

Canvas is half-blank for artists after Warhol's Supreme Court copyright loss; The Denver Gazette, May 20, 2023

John Moore, The Denver Gazette ; Canvas is half-blank for artists after Warhol's Supreme Court copyright loss 

"That’s why, Sink believes, “I don’t think this is going to open any floodgates of artistic repression,” he said. “I feel like that this case falls into its own category because it was a work-for-hire situation.”

The Andy Warhol Foundation issued a statement saying it was important to note that the ruling “did not question the legality of Andy Warhol's creation of the Prince series."

The case is, to put it mildly, “a very complicated, double-edge sword for artists,” Sink said. But two things he’s sure of: 1. “It really is the Wild West out there now” when it comes to these quickly evolving issues. And 2. Warhol (who died in 1987) would be loooooving this."

After the Warhol Decision, Another Major Copyright Case Looms; The New York Times, May 22, 2023

Matt Stevens, The New York Times; After the Warhol Decision, Another Major Copyright Case Looms

"Many thought the latest Supreme Court decision might more clearly delineate what qualifies a work as transformative. But the justices chose instead to focus on how the Warhol portrait had been used, namely to illustrate an article about the musician. The court found that such a use was not distinct enough from the “purpose and character” of Goldsmith’s photo, which had been licensed to Vanity Fair years earlier to help illustrate an article about Prince.

“It was the licensing use, not the creative use, that was at issue,” said Michael W. Carroll, a professor at American University Washington College of Law."

Supreme Court sides against Andy Warhol Foundation in copyright infringement case; NPR, May 18, 2023

 Chloe Veltman, NPR; Supreme Court sides against Andy Warhol Foundation in copyright infringement case

"Soler added the Supreme Court's ruling is likely to have a big impact on cases involving the "sampling" of existing artworks in the future. 

"This supreme court case opens up the floodgates for many copyright infringement lawsuits against many artists," said Soler. "The analysis is going to come down to whether or not it's transformative in nature. Does the new work have a different purpose?"

Wu disagrees about the ruling's importance. "It's a narrow opinion focused primarily on very famous artists and their use of other people's work," Wu said. "I don't think it's a broad reaching opinion.""

U.S. Supreme Court Opinion: ANDY WARHOL FOUNDATION FOR THE VISUAL ARTS, INC. v. GOLDSMITH ET AL.; May 18, 2023

U.S. Supreme Court Opinion: ANDY WARHOL FOUNDATION FOR THE VISUAL ARTS, INC. v. GOLDSMITH ET AL.

"Held: The “purpose and character” of AWF’s use of Goldsmith’s photograph in commercially licensing Orange Prince to Condé Nast does not favor AWF’s fair use defense to copyright infringement. Pp. 12–38."

Supreme Court Rules Andy Warhol’s Prince Art is Copyright Infringement; PetaPixel, May 18, 2023

 JARON SCHNEIDER, PetaPixel; Supreme Court Rules Andy Warhol’s Prince Art is Copyright Infringement

"Breaking Down the Ruling

Both the National Press Photographers Association (NPPA) and the ASMP are celebrating the ruling as a win for photographers. 

“The importance here cannot be overstated,” Thomas Maddrey, Chief Legal Officer and Head of National Content and Education at ASMP, says.

“The last case that the US Supreme Court fully opined on transformation and fair use was more than 25 years ago in Campbell v. Acuff-Rose. Here, the Court has added much needed guidance to when a use is truly ‘fair’ and when it is an impermissible usurpation of the rights of the copyright holder.”

Maddrey says that the case will likely have wide-ranging implications in not only the arts community, but also across all intellectual property areas. 

“Copyright practitioners have long sought clarification on what “transformation” actually means in the context of a fair use analysis.”

'The court has clearly identified the boundaries of what constitutes transformation in the context of fair use analysis.""

In Historic Decision, Supreme Court Rules Andy Warhol’s Images of Prince Violated Photographer’s Copyright; Variety, May 18, 2023

 Jem Aswad, Variety; In Historic Decision, Supreme Court Rules Andy Warhol’s Images of Prince Violated Photographer’s Copyright

"In a ruling that could have vast implications in the copyright world, the Supreme Court ruled on Thursday that images of Prince created by Andy Warhol that were based on photos taken by Lynn Goldsmith violated her copyright, according to CNN and multiple news outlets.

The ruling was 7-2.

The court rejected arguments made by the late Warhol’s foundation that the work was sufficiently transformative and did not violate copyright laws. While the work was created in the 1980s, Thursday’s ruling arrives against the backdrop of AI, which has created vast copyright implications over what constitutes originality. Warhol freely coopted many photographs, logos and other forms of artwork — ranging from soap boxes to iconic photos — into his works."

Supreme Court Rules Against Andy Warhol in Copyright Case; The New York Times, May 18, 2023

Adam Liptak, The New York Times ; Supreme Court Rules Against Andy Warhol in Copyright Case

"The Supreme Court ruled on Thursday that Andy Warhol was not entitled to draw on a prominent photographer’s portrait of Prince for an image of the musician that his estate licensed to a magazine, limiting the scope of the fair-use defense to copyright infringement in the realm of visual art.

The vote was 7 to 2. Justice Sonia Sotomayor, writing for the majority, said the photographer’s “original works, like those of other photographers, are entitled to copyright protection, even against famous artists.”"

Jack Daniel's tells Supreme Court its brand is harmed by dog toy Bad Spaniels; NPR, March 22, 2023

Nina Totenberg, NPR ; Jack Daniel's tells Supreme Court its brand is harmed by dog toy Bad Spaniels

"This case involves the federal trademark statutes and whether and when parody is protected speech. The whiskey company claims that the imitation Bad Spaniels bottle has appropriated the iconic Jack Daniel's design for just one purpose, to sell a chewy dog toy. And by doing that, the company claims, Jack's property rights have been infringed, even if the chewy dog toy is expressive."

Dog Toys, Drugs Lead Supreme Court’s High-Stakes IP Arguments; Bloomberg Law, March 17, 2023

Kelcee Griffis and Kyle Jahner, Bloomberg Law; Dog Toys, Drugs Lead Supreme Court’s High-Stakes IP Arguments

"The US Supreme Court is set to weigh three high-profile intellectual property cases in a seven-day stretch testing the bounds of branded parodies, broad drug patent claims, and international application of trademark law.

The arguments could result in rulings with wide-ranging impacts on areas including First Amendment expression, pharmaceutical research and development, and damages calculations. The US solicitor general will argue in all three cases, signaling the government’s strong interest in their outcomes.

Here’s what to expect during the high court’s blockbuster IP week."

The Supreme Court May Force Us to Rethink 500 Years of Art; The New York Times, March 1, 2023

  Blake Gopnik, The New York Times; The Supreme Court May Force Us to Rethink 500 Years of Art

"Any day now, the Supreme Court will hand down a decision that could change the future of Western art — and, in a sense, its history, too. Blame the appeals court judgment from 2021 declaring that Andy Warhol had no right to appropriate someone else’s photo of Prince into one of the Pop artist’s classic silk-screened portraits.

The art world quailed at the ruling."

Proposed Draft Of Supreme Court Opinion On Andy Warhol's Painting Of Prince; Forbes, January 7, 2023

 Schuyler Moore, Forbes; Proposed Draft Of Supreme Court Opinion On Andy Warhol's Painting Of Prince

"For the second time in two years, the Supreme Court has taken up the challenge of adding clarity to the "fair use" defense to a copyright infringement claim. The prior attempt was in Google vs. OracleORCL +1.6%, which left the defense more muddled than ever by permitting extensive verbatim copying on specious grounds. In the latest foray, the Supreme Court is going to decide in a pending case whether Andy Warhol's colorized painting of a photograph of Prince is protected by the fair use defense against a copyright infringement claim brought by the photographer.

The decision in this case will have far-ranging critical implications for Hollywood, and it will be cited for decades to come. If history be our guide, it is almost certain that the Supreme Court will add yet more mud to a muddy issue. In order to avoid that result, and with the aim of impartiality, I humbly offer the Supreme Court drafts of the two opposing opinions it could issue for this case:"

Generative AI, Andy Warhol ‘Fair Use’ Lead 2023 Copyright Issues; Bloomberg Law, December 28, 2022

Isaiah Poritz, Bloomberg Law; Generative AI, Andy Warhol ‘Fair Use’ Lead 2023 Copyright Issues

"How copyright law applies to the fast-growing generative artificial intelligence industry, and the US Supreme Court’s ruling in a case concerning Andy Warhol’s artistic use of a photograph of Prince are among the most important copyright issues heading into 2023.

Other major copyright cases in the new year include the high court’s expected decision on whether to hear a multimillion-dollar dispute involving allegations that Google LLC illegally scraped lyrics from the crowd-sourced lyric annotation website Genius. 

“Never before has content and intellectual property been so important and we are starting to see that now in terms of the Supreme Court’s docket,” said copyright attorney Scott Burroughs of the firm Doniger Burroughs PC, which helped write a friend-of-the-court brief asking the justices to take the lyrics case.

In one of the most active federal appeals courts for copyright law, two photographers are challenging the 15-year-old “server test.” That precedent holds that a website displaying an embedded Instagram post can’t be held liable for copyright infringement because the image isn’t hosted on the website’s servers." 

U.S. Supreme Court has busy year ahead for intellectual property law; Reuters, December 22, 2022

 Blake Brittain, Reuters; U.S. Supreme Court has busy year ahead for intellectual property law

"After a relatively quiet year for intellectual property cases at the U.S. Supreme Court, the justices are set to consider several important issues in copyright, patent and trademark law in 2023."