New York Team Publishes Article for Documentary Magazine on Implications of U.S. Supreme Court Fair Use Matter

New York, N.Y. (April 26, 2023) – New York Partners Steven C. Beer and Ariadne Panagopoulou, with Paralegal Robert Maslonka, recently published an article for Documentary Magazine (International Documentary Association), which summarizes the matter of Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith – a fair use case currently before the U.S. Supreme Court – and examines its potential impact on documentary filmmakers.

The authors open the article by observing that, “A hallmark of documentary films is the use of preexisting material incorporated by filmmakers to tell their story.” They note that under the fair use doctrine, documentary filmmakers need not secure licenses when incorporating these third-party materials into their projects. The authors go on to explain, however, that the Warhol matter “reexamines this practice.”

Next, the authors detail the underlying facts of the Warhol matter, in which photographer Lynn Goldsmith captured a portrait of the late music artist Prince and later licensed the photograph to Vanity Fair magazine. Vanity Fair subsequently commissioned Andy Warhol to create an illustration based on the photograph, which ultimately was published in the magazine. Without the photographer’s knowledge, however, Mr. Warhol created 15 additional variants that became known as the Prince Series. Upon Prince’s death, Vanity Fair published one of the images from the series on the magazine’s cover page and attributed it only to Andy Warhol Foundation (AWF). After Ms. Goldsmith notified AWF that the Prince Series infringed her copyright, AWF filed suit, seeking a declaratory judgment that Mr. Warhol’s use of the photograph constituted fair use. Ms. Goldsmith counterclaimed for copyright infringement.

After describing the underlying matter, the authors review the district court’s grant of summary judgment in favor of AWF and the Second Circuit’s reversal of that ruling. They go on to discuss, in detail, the oral arguments that took place before the Supreme Court last October, including the questions and comments of the justices. Acknowledging that the Supreme Court’s ruling would undoubtedly have an impact on artists, the authors address the potential implications of the decision for documentary filmmakers, describing an amicus brief filed by a group of prominent documentary filmmakers that contended that the Second Circuit’s ruling “could devastate the documentary film genre.”  

The authors close the article by positing that “an adverse ruling towards AWF complicates the question of whether the fair use defense can continue to support the broad use of third-party materials.” They point out that even an increased threat of litigation could cause an increase in insurance costs, instill anxiety in filmmakers, and stifle creation such that documentary filmmakers may “find themselves on the losing end.

Mr. Beer serves as co-chair of Lewis Brisbois’ Entertainment, Media & Sports Practice. He represents industry-leading film, television, and music companies, and has acted as counsel to numerous award-winning writers, directors, producers, and multi-platinum musical artists. Mr. Beer also co-hosts Lewis Brisbois’ podcast series, “Periscope,” which features timely discussions with industry leaders and up-and-coming artists.

Ms. Panagopoulou is a member of Lewis Brisbois’ Complex Business & Commercial Litigation, Labor & Employment, and London Market Group Practices. As a dual-qualified lawyer in the jurisdictions of New York and England & Wales (Solicitor, Law Society of England and Wales), she has significant experience representing business owners in an array of employment disputes.

Mr. Maslonka is a paralegal in Lewis Brisbois’ Entertainment, Media & Sports Practice and a 3L at Fordham University School of Law with a concentration on entertainment and intellectual property matters. He is an associate editor for the Fordham Intellectual Property, Media & Entertainment Law Journal and a board member of the Fordham Media & Entertainment Law Society.

Read the full Documentary Magazine article here.