SCOTUS Ruling Spooks "Fair Use" Advocates
Is the decision against Andy Warhol in Prince photo copyright case cause for concern?
Two weeks ago, we discussed the implications of Ed Sheerhan’s victory against the estate of Marvin Gaye in a plagiarism lawsuit that claimed Sheerhan copied Gaye’s classic song “Let’s Get It On,” drawing the conclusion that the decision could usher in a new sense of freedom for songwriters to take inspiration from others without fear of litigation.
On Thursday, the Supreme Court issued its ruling on the closely watched Andy Warhol vs. photographer Lynn Goldsmith — finding that Warhol violated Goldsmith’s copyright by altering her photo of Prince for use in a Vanity Fair article in 1981. The 7-2 majority found that Warhol’s creation of his piece for commercial purposes overlapped with Goldsmith’s own interests in creating her photograph for the same purpose. In doing so, it set the precedent that modifications of the original work for aesthetic purposes alone were not adequate to invoke the “fair use” doctrine.
The are many differences between the two cases. And it remains to be seen how future derivative works will fare, legally. But as we speculated regarding the Sheerhan case, court rulings have a cascading effect on what other creatives might feel they are allowed to do. It will also impact what lawyers believe they can accomplish using the power of the court when these issues arise.
In other words, as quickly as one door opens, another one closes. And there is no such thing as decided law when it comes to many applications of copyright.
Speaking to illustrator David J. Weissberg (our own Warhol whose collages are often featured in The Cadence), his response to the ruling was one of concern, stating:
“No doubt, intellectual property rights have their merits for society. However, when regulations become excessively strict, they stifle creativity and innovation, having a chilling effect on expression. Artists with limited resources could often find themselves fucked defending their own work. This becomes even more critical when considering those of us who engage in transformative works such as collage and draw inspiration from the vast pool of public domain. These styles are important as they allow for the reinterpretation and evolution of creative expression.”
While the Warhol vs. Goldsmith ruling is over a visual piece, it will certainly have implications for music as well. And as questions of IP ownership expand to include works by AI as well as humans, these issues are something we expect to be discussing a lot in the coming years.
*DISCLAIMER: The illustration used in this newsletter is for noncommercial use only. Nobody got paid.
TAKEAWAYS
Salient statements from this week’s music news.
1. TikTok Tests Direct Streaming Links With Apple Music
With rumors of it’s own DSP subsided, TikTok appears to want to play nice with the industry rather than consume it.
Takeaway: Direct integrations with those services, besides being a nice feature for TikTok’s users, will also give the app some hard data to quantify its impact on streams. That data could also be very valuable for labels and artists’ teams, if TikTok is willing to share it with them.
2. Music Streaming Revenue Growth Expected to Fall to 3% by 2029
A new presentation by MIDiA suggest that the passive consumption championed by Spotify has waned as IRL activity resumes post-pandemic.
Takeaway: More than ever, young people want to be actively playful and interactive with their music, not just listen to static playlists on streaming — though that form of listening will still surely persist.
3. BMI and ASCAP Announce Joint Task Force to Address Fraud
America’s biggest reporting societies are teaming up to combat streaming fraud. A lesson in collaboration the majors and DSPs should consider as well.
Takeaway: In addition to raising awareness around suspicious activity and schemes, the task force will work with other partners around the globe to share best practices and information that is not deemed competitively sensitive.
