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Pryor Cashman Files SCOTUS Amicus Brief For Music Industry Clients In Warhol IP Case – Copyright

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Pryor Cashman’s Music Group submitted an amicus brief to
the U.S. Supreme Court on behalf of clients the Recording Industry
Association of America (RIAA) and the National Music
Publishers’ Association (NMPA).

The brief is part of a SCOTUS review of a Second Circuit
decision involving whether or not artist Andy Warhol had a fair use
claim when he used a photo of musician Prince in an artwork.

In “SG Urges High Court To Back Photographer In Warhol IP
Fight,” Law360 noted:

The Recording Industry Association of America and the
National Music Publishers’ Association warned in an amicus
brief Monday that the foundation’s proposed test would abrogate
the exclusive rights of their members — American music
companies and artist-owned labels — and “would rewrite
the limited fair use exception.”

A group of intellectual property professors and social
justice professors concurred, saying in an amicus brief also filed
on Monday that the fair use exception should not be interpreted so
broadly that it would “swallow the exclusive right of
copyright owners to derivative works.”

The brief begins by spotlighting the importance of a more
definite reading of fair use, noting that “[t]he question
presented in this case bears directly on both the business and
artistic interests of amici and their members. Adopting the broad
and subjective fair use test advocated by Petitioner would directly
undermine the rights of amici’s members (and other copyright
holders) to assert, control, and protect their valuable copyrights,
including in particular the exclusive rights to license their
copyrighted works, and to create and to authorize others to create
derivative works based on those works.”

The firm’s clients tell the Court, “The Second
Circuit’s decision and reasoning should be affirmed,”
and “all four statutory fair use factors—including,
significantly, the fourth market factor—must be given due and
independent consideration in any fair use analysis.” If the
petitioner’s reductive “meaning or message” test
were adopted, the RIAA and NMPA note, licensing practices that are
both extremely common and critical to the operation and success of
the American music industry may be undermined and jeopardized:
“For instance, The Hershey Company
likely intended  its use of the 1982 song
“I Melt With You” in chocolate advertisements to invoke
melted and shared chocolate, and the meaning  of
the composition as used in the Hershey’s advertisement
(i.e.,to sell chocolate) was certainly different
than as originally intended by Modern English. It is clear that
intended meaning and message cannot be the only consideration to
determine whether a new use is fair.”

The brief concludes by arguing, “this Court should set a
clear standard for the limited circumstances where the public
interest dictates the curtailing of a copyright holder’s
rights in favor of the creation of a new, fair use…the
Second Circuit properly applied the appropriate standard and
determined that Warhol’s and AWF’s use was not fair in
this case, and its decision and reasoning should be

The brief was prepared for the RIAA and NMPA by Pryor Cashman
lawyers Frank P. Scibilia, Donald S. Zakarin, Benjamin S. Akley,
and Haley Sylvester.

Read the full amicus brief and Law360 article
using the link below (subscription may be required).


The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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