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I am delighted to present the third\u00a0day of the\u00a010th Anniversary of Fair Use Week<\/strong>\u00a0with a guest post by copyright expert Sandra Aya Enimil from Yale University. In this post Sandra explores a bit of the pending Warhol<\/span>\u00a0decision through the lens of the subjects that may not always have rights in images that contain their likeness. -Kyle K. Courtney<\/em><\/p>\n by Sandra Aya Enimil<\/p>\n It\u2019s Fair Use Week<\/a> and I was asked to write about a Fair Use topic, which I have done (here<\/a> and here<\/a>) for a few years now. This year though, I want to write about an issue that I have been thinking a lot about and it is related (tangentially) to an important Fair Use case on the minds of many. For this Fair Use Week 2023 blog , I am not fully discussing Fair Use, I want to discuss pillars of copyright law, and incredibly the important elements\u00a0 of fixation<\/a> and ownership.<\/p>\n Many people are following Warhol v.\u00a0 Goldsmith<\/i><\/a>, which was heard by the United State Supreme Court in October 2022. The case results from a dispute between the two artists, Andy Warhol and Lynn Goldsmith over a photograph of another artist, Prince.\u00a0 Goldsmith is the original artist; Warhol received a copy of the image and created variety of colorized and enhanced versions of the image. Warhol, and later his estate, sold originals and prints of his versions of the image.\u00a0 We now await a decision from the Supreme Court on whether Warhol\u2019s use is Fair Use. There\u2019s no doubt that a determination of what is transformative Fair Use is the main issue at play in this case.<\/p>\n While I am curious about the forthcoming decision, something about the case had been bugging me and could not articulate it until I viewed a panel presentation from Professor Emily Behzadi<\/a> about Warhol<\/em> hosted by Jeffrey Prystowsky at Roger Williams University School of Law<\/a>. Behzadi spoke about Prince as the subject of the photograph and the center of the controversy, but not one with the power of a copyright.<\/p>\n Her presentation made me recall another panel presentation by Professor John Tehranian<\/a> on a similar theme<\/a>:\u00a0 cultural appropriation. Behzadi and Tehranian discuss race and gender implications regarding copyright authorship and the lack of copyright interest in images in one\u2019s own likeness. \u00a0In photography, the person who snaps the photo, paints the portrait, who fixes the image in a tangible means of expression, is the copyright owner. In Warhol<\/em>, Prince, or a representative, likely signed away his claim for any and all rights in the images taken by Goldsmith. While copyright was probably listed among the disclaimed rights, currently, a subject of a photo would typically never be considered a rights holder of the image unless they took the photo (selfies anyone?<\/em>). \u00a0\u00a0Goldsmith was and is the rightsholder of the images she took of Prince. The Warhol Foundation is making a Fair Use claim for the creation of the Prince series. Why doesn\u2019t Prince, or now his estate, have any claim?<\/p>\n The interrogation of the assumption that subjects should have no interest in photographs is longstanding. A recent case, Lanier v Harvard<\/em><\/a>, where the descendant of enslaved persons in a photographic collection[1]<\/a> sought redress for use of the images, continued the conversation about the rights, not just of subjects, but of their descendants.<\/p>\n The descendant, Tamara Lanier, initially brought, among several claims, a copyright property interest claim. This claim was not allowed to move forward due to the issue of authorship and ownership (in June 2022, the Massachusetts Supreme Judicial Court allowed the case to proceed on a claim of emotional distress.). The photos were commissioned by professor and known white supremacist, Louis Agassiz on behalf of Harvard University. Harvard owns the copyright. The subjects, include ancestors of Ms. Lanier, Papa Renty and his daughter, Delia, had no property interest as subjects. Further as enslaved individuals at the time, they had no rights around consent or any other non-copyright rights photographic subjects might expect.<\/p>\n There\u2019s also been engagement on social media, fascinatingly, on this issue as well. Consider the Twitter thread below by Dr. John Mason. Mason focuses on the person who is subject of the photograph and their agency<\/em>, or not, in being photographed.<\/p>\n What would photojournalism & documentary photography look like — now & in the past — if the photographer's right to take someone's image were balanced by that person's right to say No?<\/p>\n — John Edwin Mason (@johnedwinmason) December 29, 2020<\/a><\/p><\/blockquote>\nWho Owns My Image? – A Fair Use blog about a Fair Use case (But this blog is not totally about Fair Use)<\/b><\/h2>\n
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<\/p>\nThe photo on the left was taken by Lynn Goldsmith and was licensed by Vanity Fair. Vanity Fair provided the image to Andy Warhol who then created the series on the right. The highlighted Warhol image was used in article after Prince\u2019s death.<\/h6>\n
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<\/p>\nAttorney Josh D. Koskoff, left, Tamara Lanier, and Attorney Ben L. Crump, right. Massachusetts Supreme Judicial Court in Boston, November 2021. Photo by Raquel Coronell Uribe: https:\/\/www.thecrimson.com\/article\/2022\/6\/24\/lanier-supreme-court-remanded\/<\/a>. Edited photographs of Delia and Papa Renty.<\/h6>\n
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