Marsh Quoted on Key IP Law Trends in 2023
“The outcome of Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith pending before the Supreme Court could (pun intended) transform US copyright law no matter the outcome. The case will decide if Andy Warhol’s iconic treatment of Lynn Goldsmith’s original photograph of the musician Prince, without authorization from Ms. Goldsmith, constitutes a fair use of her work or an infringement. The Court must answer whether a work of art is transformative under the fair use doctrine, if and when it conveys a different meaning from the original work. The case pits photographers (artists) whose very livelihoods depend on licensing revenue against other artists, who seek to use and alter those photographs to create a wholly new work. The fair use doctrine is in much need of clarity but can the Supreme Court provide a bright line rule or will they muddy the waters further? Moreover, with the rise of artificial intelligence mimicking real artists, use of unlicensed third-party photographs may soar if the Court attempts to define some measurable level of transformation. My prediction is the decision will raise more questions than it answers and could be a significant setback for artists – no matter the medium.”
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