Full title: 2nd Circuit Affirms Goldsmith Copyright Infringement Win; Rejects Warhol Foundation's Interpretation of the Supreme Court's Intervening Google v. Oracle Decision
By Joel L. Hecker
This is a post-script to the article entitled "Second Circuit Reverses Fair Use Decision - Holds Warhol Foundation Infringed Lynn Goldsmith's Photo as a Matter of Law" that appeared recently in the Entertainment, Arts and Sports Law Section Journal, Vol. 32, No. 21, 2021
Following the decision by the 2nd Circuit, The Andy Warhol Foundation (AWF) filed a Petition for Panel Rehearing and Rehearing En Banc, on the mistaken belief that the intervening U.S. Supreme Court decision in Google LLC v. Oracle America, Inc. , 141 S. St. 1183 (2021) somehow required a different result. In order to consider the impact, if any, of the Google decision, the 2nd Circuit Panel granted the petition for rehearing, but came to the same conclusion in an Amended Opinion dated August 24, 2021 (Docket No. 19-2420-cv, Amended August 24, 2021), which incorporated its prior (now withdrawn) decision with an analysis of Google. The lack of any impact of the Google decision on the 2nd Circuit conclusion that AWF infringed Goldsmith's copyrighted photograph was summarized by the Panel as follows:
"AWF's argument that Google undermines our analysis rests on a misreading of both the Supreme Court's opinion and ours, misinterpreting opinions as adopting hard and fast categorical rules of fair use. To the contrary, both opinions recognize that determinations of fair use are highly contextual and fact specific, and are not easily reduced to rigid rules. As the Supreme Court put it, both the historical background of fair use and modern precedent 'make clear that the concept [of fair use] is flexible, that courts must apply it in light of the sometimes conflicting aims of copyright law, and that its applications may vary depending upon context'." (at 55).
The Panel went on to hold that copyright law does not provide either side to any dispute with absolute trumps based on simplistic formulas. Instead explained the Panel, it requires a contextual balancing based upon principles that will lead to close calls in particular cases. The Panel then concluded that, like the Supreme Court in Google, the 2nd Circuit Panel did apply those well-established principles to the particular facts in the AWF - Goldsmith case, and concluded that AWF's fair use defense fails.