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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

    Intermediate

  • work Practice Area

    Trademark and Copyright

Date & Time
  • event Date

    Tuesday, July 18, 2023

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$347.00
CLE
ALL

This CLE webinar will guide IP counsel on the key elements of the Supreme Court’s decision in Warhol. The panel will discuss its impact in the fields of licensing and litigation. The panel also will offer insights for best practices and fair use assessments in light of the Court’s three leading copyright fair use decisions: Warhol, Campbell v. Acuff-Rose Music, Inc. (1994) and Google LLC v. Oracle America, Inc. (2021).

Faculty

David H. Herrington
Partner
Cleary Gottlieb Steen & Hamilton LLP

Mr. Herrington’s practice and experience span a wide range of litigation, advisory and regulatory matters, with a focus on intellectual property disputes. He has handled multiple suits involving claims of patent infringement, trade secret misappropriation, trademark infringement and copyright infringement, as well as high stakes suits concerning IP licenses. Mr. Herrington also counsels on IP issues in the transactional context, including licensing, M&A and capital markets transactions, the sale of patent portfolios and other matters. His experience in other areas includes regulatory enforcement actions, internal investigations and commercial litigation. Mr. Herrington has conducted a number of IP suits through trial and appeal. He also has successfully represented clients in international arbitrations, evidentiary hearings and appeals.

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Courtney Lytle Sarnow
Partner
Culhane Meadows Haughian & Walsh, PLLC

Ms. Sarnow has over 25 years of experience in a broad-based transactional practice with a specific focus on IP and technology, providing IP protection and general corporate strategies to artists, inventers and innovative entrepreneurial ventures. She has developed a distinctly creative and problem-solving approach to address client plans and issues.  As a young attorney, Ms. Sarnow learned that focusing on what a client can’t do and shouldn’t do is unnecessarily limiting and seldom helps the client maximize corporate opportunities.  Her approach of looking for ways to accomplish corporate goals within an informed legal framework is more valuable for growth focused, technology forward companies than a stereotypical corporate counsel who instinctively thwarts innovation. Early in her career she worked in the Mergers & Acquisitions Group and in IP Licensing with traditional clients, as well as some unusual NASCAR and Professional Bull Rider representation thrown in from time to time. This gave her an appreciation for creative clients. Ms. Sarnow is an Adjunct Professor at Emory University School of Law.

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Description

In a much-anticipated decision concerning the copyright fair use defense as to Andy Warhol’s silk screen image of Prince based on a photograph by prominent photographer Lynn Goldsmith, the Supreme Court’s decision in Andy Warhol Foundation for Visual Arts Inc. v. Goldsmith, (May 18, 2023) adopted a narrow conception of fair use in two respects. The Court framed the relevant use as the commercial licensing of an image of Prince for a publication about Prince – a use that in this instance applied to both Warhol’s work and Goldsmith’s photograph. And while recognizing that Warhol’s work may have added “new expression, meaning, or message,” the Court concluded that, in respect of the specific use in question, this would not establish fair use without a showing that it also had some “critical bearing” on the underlying source material – as does, for example, a parody of an underlying work. The Court held that the combination of these two considerations points against fair use, while emphasizing that its decision did not extend to other potential uses of the Warhol work – such as display in a museum or in an article about Warhol’s artistry.

Though the Court’s resolution of the case was highly fact-specific and therefore arguably limited in impact, it raises concerns for those who create works based on underlying source material; and it makes fair use assessments more complex by requiring a new and detailed analysis for each particular “use” of a work. In a spirited dissent, Justice Kagan, joined by Chief Justice Roberts, warned that the majority’s approach hampers creative progress and undermines creative freedom.

Listen as our authoritative panel of IP attorneys explains the key elements of the Supreme Court’s decision in Warhol and discusses its impact in the fields of licensing and litigation. The panel also will offer insights for best practices and fair use assessments in light of the Court’s three leading copyright fair use decisions: Warhol, Campbell v. Acuff-Rose Music Inc., 510 U.S. 569 (1994) (holding that 2 Live Crew’s parody of Roy Orbison’s song, “Oh, Pretty Woman,” could qualify as fair use); and Google L.L.C. v. Oracle America Inc., 141 S. Ct. 1183 (2021) (holding that Google’s of use of a limited amount of Java code for a mobile phone platform qualified as fair use).

Outline

  1. Key elements of the majority decision in Warhol
  2. Justice Kagan’s dissent and Justice Gorsuch’s concurrence
  3. The implications of Warhol for fair use, copyright licensing and litigation
  4. Best practices and fair use assessments in light of Warhol, Campbell and Google

Benefits

The panel will review these and other critical issues:

  • What lessons can IP counsel draw from the Supreme Court's decision when making arguments of fair use?
  • What does it take to meet the requirements to be transformative?
  • What best practices can creators and counsel employ to minimize the risk of infringement when basing a work on another's work?