Robert J. Bernstein and Robert W. Clarida A Bounty of Fair Use: 'Google v. Oracle' and 'Warhol Foundation v. Goldsmith'
The Second Circuit recently issued a decision on fair use in 'Warhol', which was followed shortly later by a U.S. Supreme Court decision in 'Google'. The plaintiff in the 'Warhol' decision now contends that the two decisions do not reconcile. In this edition of their Copyright Law column, Robert J. Bernstein and Robert W. Clarida discuss the decisions and write that due to the strictly limited basis on which 'Google' was decided, they do not foresee that it would significantly impact the resolution of 'Warhol'.
May 20, 2021 at 12:00 PM
11 minute read
On March 26, 2021, the U.S. Court of Appeals for the Second Circuit held that The Andy Warhol Foundation's (AWF) use of a Lynn Goldsmith (Goldsmith) photograph of the musician Prince was infringing rather than fair use. The Andy Warhol Foundation for the Visual Arts v. Goldsmith, 992 F.3d 99 (2d Cir. 2021) (Warhol). Ten days later, on April 5, 2021, the U.S. Supreme Court held that Google's use of a portion of Oracle's application programming interface (API) software was a fair use. Google v. Oracle Am., 141 S. Ct. 1183 (2021) (Google). In a Petition for Rehearing filed on April 23, 2021, the Warhol plaintiff (AWF) argued, inter alia, that the Warhol panel's decision was irreconcilable with Google. The Second Circuit then ordered Goldsmith to brief the question of "what impact, if any, [Google] may have on the appropriate disposition of the appeal."
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