Peter Karol, ‘What’s The Use? The Structural Flaw Undermining Warhol v Goldsmith’, Journal of the Copyright Society of the USA (forthcoming, 2024), available at SSRN (13 December 2023). Virtually no one in the scholarly community is happy with the Supreme Court’s 2023 decision in Andy Warhol Foundation v Goldsmith. The case produced aggressive majority and dissenting opinions by justices whom we normally think of as well aligned: Justice Sotomayor writing for the majority, and Justice Kagan writing in dissent. Peter Karol’s recent article shows that the opinions generated more heat than they did light, because the two Justices fundamentally misunderstood the case, the law, or both. This leaves the case’s precedential value deeply in doubt. The case pitted the Andy Warhol Foundation (AWF), a non-profit organization created after Warhol’s death to license uses of his artwork, against Lynn Goldsmith, a photographer who took a photo of the musician Prince in 1981 … (more)
[Christopher J Buccafusco, JOTWELL, 18 June 2024]
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