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Warhol v. Goldsmith

Aardvark86

HR Heisman
Jan 23, 2018
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So today's SCOTUS arguments were highlighted by a really interesting copyright case about derivative works, involving celebrity photog and celebrity artist Warhol. Can't wait to read the transcript - some great moments in oral argument, to wit:

1. Clarence Thomas: "Let's say I was a Prince fan, which I was in the 80s"
Justice Kagan "No longer?"
Thomas: "Only on Thursday nights. Let's say I'm also a Syracuse fan and I decide to make one of those big blowup posters of Orange Prince"

Soto, re: Thomas demurring on whether he is still a fan: "I think Justice Thomas needs a lawyer"

2. Advocate Lisa Blatt (a helluva lawyer): I think Norman Lear would be turning over in his grave.

Lear, of course, is still alive.

3. Discussion of the differences between Mork and Mindy and Happy Days.
 
So today's SCOTUS arguments were highlighted by a really interesting copyright case about derivative works, involving celebrity photog and celebrity artist Warhol. Can't wait to read the transcript - some great moments in oral argument, to wit:

1. Clarence Thomas: "Let's say I was a Prince fan, which I was in the 80s"
Justice Kagan "No longer?"
Thomas: "Only on Thursday nights. Let's say I'm also a Syracuse fan and I decide to make one of those big blowup posters of Orange Prince"

Soto, re: Thomas demurring on whether he is still a fan: "I think Justice Thomas needs a lawyer"

2. Advocate Lisa Blatt (a helluva lawyer): I think Norman Lear would be turning over in his grave.

Lear, of course, is still alive.

3. Discussion of the differences between Mork and Mindy and Happy Days.
Spoiler alert - Thomas isn't going to say anything and might be asleep. You can count the number of words he has ever spoken in court on your fingers.
 
This is a really interesting and important case; if they are not careful, they will unnecessarily complicate copyright law like they did with the patentability determination.

Lots of amici briefs. Lots of stakeholders.
 
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Spoiler alert - Thomas isn't going to say anything and might be asleep. You can count the number of words he has ever spoken in court on your fingers.
Apparently you haven't been paying attention for the last term or two. The way arguments work these days is (1) the Chief calls the case, (2) Thomas, as the senior justice, asks the first question or two, which usually get right to the core of what the decisional issue actually is and what the other justices will ultimately ask about, (3) the old free-for-all style, in which Thomas doesn't ask questions, and (4) the Chief then goes through the justices, Covid-phone argument style, to give them an opportunity to ask questions, in which Thomas occasionally asks a question.

With all that said, his historic approach of not asking questions is actually premised upon a correct proposition: only in the rarest instances do oral arguments matter to the outcome of a case for any justice.
 
This is a really interesting and important case; if they are not careful, they will unnecessarily complicate copyright law like they did with the patentability determination.

Lots of amici briefs. Lots of stakeholders.
Absolutely -- really really nice piece in the Atlantic on this the other day. With all that said, I'm not sure there's any magical way to clearly define "derivative" or "fair use".
 
Absolutely -- really really nice piece in the Atlantic on this the other day. With all that said, I'm not sure there's any magical way to clearly define "derivative" or "fair use".

Fair use is the IP attorney full employment act.

I think impact on the market and viable replacement for the original work get you a long way on whether it’s transformative or fair use.

But ultimately, it’s like porn, it’s often a judge or jury call.
 
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