‘Cat fight!’ Flame war on the Supreme Court over Prince and Warhol

Today, was opinion day with the Supreme Court. One of the opinions announced was a relatively mundane question of copyright law, which seemed like an unlikely place for a judicial ‘flame war,’ to erupt, but that is exactly what happened.

But let’s rewind for a moment, here. The case is Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith (2023). The short version is this. Lynn Goldsmith is a photographer who once photographed the musician Prince. In 1984, Vanity Fair wanted to do a piece on Prince and they wanted a Warhol portrait of Prince to accompany the article. So, they paid Goldsmith a fee to let Warhol use her picture as the basis of creating one of his usual works, Goldsmith insisting as part of the deal it would be a ‘one time’ thing. Warhol created the work. He got paid and Goldsmith got paid. So far, so good. No lawsuits.

Then a few years back, Prince died. Lots of magazines wanted to do articles and even special issues about the star’s life and death. And it turned out that Warhol had actually made a bunch of works based on that photo of Prince that he hadn’t released. So Condé Nast bought the rights to a different Warhol ‘Prince,’ (Warhol was dead by then) but it was based on the same photo. Crucially, no one paid Goldsmith a dime for this use.

Here’s a relevant illustration from the opinion:

So, Goldsmith sued the Warhol Foundation (which owned the rights to Warhol’s work), arguing that they owed her a new fee. But the Warhol Foundation offered the affirmative defense of fair use (an affirmative defense is something the defendant has to prove that get him or her out of trouble). Basically, you can ‘rip off’ someone’s work if you are using it in a way that sufficiently transforms it. For instance, if you read the opinion, you will see constant references to a Campbell case. That’s a reference to when the Roy Orbison estate sued the rap group 2LiveCrew for ripping off ‘Oh, Pretty Woman,’ but they won on the theory that their ‘rip off’ is a parody of the original song. Parody is a classic example of fair use. So is criticism, which why the Everything Wrong With YouTube series is probably engaging in lawful use of material from various movies.

And as a practical matter, the Warhol Foundation was kind of on the backfoot on their argument because the first time Goldsmith was paid. So, in essence they had to argue that no one ever had to pay Goldsmith in the first place and while it is not impossible to make that argument, but it is harder than if no one had actually paid her the first time.

But that’s all background. Let’s get to the cat fight:

This person is responding specifically to the Kagan footnote:


He’s an optimist.

Interesting if true.

By the way, it was Chief Justice Roberts who joined Kagan. And for the record, the most senior justice in the majority decides who writes the majority opinion. So that means Thomas assigned Sotomayor to it.

We are with her on that.

We were debating whether or not to use ‘cat fight’ in the title to this article, but now we feel compelled to use the term just to annoy her.

Really, one of the divisions we see in the opinion is how the court views the competing artists. For instance, here’s how Sotomayor explains who Goldsmith is:

Lynn Goldsmith, is less well known [than Warhol]. But she too was a trailblazer. Goldsmith began a career in rock and-roll photography when there were few women in the genre. Her award-winning concert and portrait images, however, shot to the top. Goldsmith’s work appeared in Life, Time, Rolling Stone, and People magazines, not to mention the National Portrait Gallery and the Museum of Modern Art. She captured some of the 20th century’s greatest rock stars: Bob Dylan, Mick Jagger, Patti Smith, Bruce Springsteen, and, as relevant here, Prince.

The level of admiration of Sotomayor is displaying is pretty obvious. By comparison her discussion of Warhol is pretty muted.

Meanwhile in the Kagan dissent …

… and he’s not kidding. She goes on for pages about how Warhol is a great artist. Frankly, we tend to think he is at best overhyped, but she makes as good a case for why his work is good and important as we have ever seen.

On the other hand, Goldsmith is barely mentioned. And it could be just as dumb as that—Kagan really likes Warhol, while Sotomayor sees Warhol as taking a woman’s work, changing it a little and then taking credit for it. A huge part of the Sotomayor majority opinion is concerned with whether or not Warhol’s print overshadows Goldsmith’s work, saying that the question of fair use ‘requires courts to ask whether consumers treat a challenged use ‘as a market replacement’ for a copyrighted work or a market complement that does not impair demand for the original.’ To put it bluntly, if Warhol’s print didn’t exist, they might have used Goldsmith’s picture instead.

And in that context, it is relevant that Sotomayor said

I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.

Contrary to what Sotomayor said when challenged before the Senate, that phrasing was a deliberate response to what Justice Sandra Day O’Connor said when arguing that men and women were equal in the legal profession:

Do women judges decide cases differently by virtue of being women? I would echo the answer of my colleague, Justice Jeanne Coyne of the Supreme Court of Oklahoma, who responded that ‘a wise old man and a wise old woman reach the same conclusion.’

The notion that women ‘thought differently’ about law was used for centuries as an excuse to keep them from being lawyers or judges. But many modern feminists now think women are in fact different and better and Sotomayor was echoing them. Thus, it is fair to suspect a bit of bias on the part of Sotomayor in this fight between a woman and a man’s estate.

And the fact that you have to wonder that about Sotomayor is a bigger problem than Clarence Thomas having a rich and generous friend. With Sotomayor, that is documented evidence of bias.

And it really did get testy and personal. From Sotomayor’s majority:

The dissent makes a similar mistake with Google [referring to a case, not the search engine]: It fails to read the decision as a whole. So while the dissent claims that the ‘[Google] Court would have told this one to go back to school,’ it might be easier just to go back and read Google.

And this suggests she sees Goldsmith as the underdog against Warhol:

[T]he dissent (much like the District Court) treats the first factor as determined by a single fact: ‘It’s a Warhol.’

Meanwhile, Kagan basically suggests Sotomayor just doesn’t ‘get’ Warhol:

So it may come as a surprise to see the majority describe the Prince silkscreen as a ‘modest alteration[]’ of Lynn Goldsmith’s photograph—the result of some ‘crop[ping]’ and ‘flatten[ing]’—with the same ‘essential nature.’ … Or more generally, to observe the majority’s lack of appreciation for the way his works differ in both aesthetics and message from the original templates.

This one is particularly nasty:

The majority does not see it. And I mean that literally. There is precious little evidence in today’s opinion that the majority has actually looked at these images, much less that it has engaged with expert views of their aesthetics and meaning.

And this is also pretty harsh, when responding to how the majority described Warhol’s work:

The description is disheartening. It’s as though Warhol is an Instagram filter, and a simple one at that (e.g., sepiatinting). ‘What is all the fuss about?,’ the majority wants to know.

That’s another valid point. In addition to the infighting, Kagan’s dissent is often just weird. For instance, on pages 79-80, she is discussing how much art is taken from other art—which is a good point—and then she writes: ‘I won’t point fingers, but maybe rock’s only Nobel Laureate and greatest-ever lyricist is known for some appropriations?’ So, at this point, she is being coy, refusing to name who she is talking about. Then in the footnotes she writes: ‘OK, you guessed it—Bob Dylan.’

At another point, she quotes a different source and then says in a footnote: ‘In the spirit of this opinion, I might have quoted that line without further ascription. But lawyers believe in citations …’ so then she actually gives a citation. In another footnote, she says ‘I have to admit, I stole that last phrase from…’ and gives another citation. At another point, in the text she cites numerous people pointing out how imitation is common in art, and then has a footnote announce another citation by saying, ‘OK, one last one.’ That kind of behavior is perfectly appropriate for a Twitchy article, but downright weird for a legal opinion. You can decide for yourself whether it is delightfully playful, which seems to be what Kagan was going for, or unjudicial in tone.

Buried under all this infighting are important principles that relate to the flourishing of art. On one hand, artists need to make money off their works and copyright is, at the bottom, about helping to make art profitable. If you want people to take pictures of rock stars and other celebrities, or to write books, or to make movies, artists need to get paid so the most talented people are encouraged to make art.

But at the same time, copyright law can be used to stifle creativity—even criticism. There are several YouTubers who like to critique movies that find that copyright concerns often get their videos taken down—and one suspects it was done because of their harsh criticism. More alarmingly American copyright laws were used to suppress information about Hitler. Journalist Alan Cranston discovered that the version of Mein Kampf sold in America was heavily edited to make Hitler seem less like the complete psychopath he was. So, Mr. Cranston published a complete translation so Americans could see for themselves what Hitler was. The relevant rights holder, Houghton Mifflin, sued and got the court to stop him from publishing the full book … in 1939. You know, when we really could have used that information. So, it is important not to let copyright law be so strong that it strangles valid uses and that is the balance they are trying to strike here. Today’s ruling favors the original copyright holder over the person who wants to make use of it for their own purposes, but we don’t think it is quite the stranglehold Kagan thinks it is.

As for the Warhol estate, it’s a little complicated, but the Supreme Court was only focusing on one part of the test for fair use, so it might be possible for the Warhol estate to win in the end. But certainly, this was a setback for them.

And in the longer term, will the rift we saw today between Justices Kagan and Sotomayor expand over time? Or will they reconcile? We shall see.


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FM Radios to Pay Music Royalties to Creators Now: Here’s All You Need to Know

Now, every time you hear a song on the radio, the FM broadcaster will have to pay royalties to the creators of the music.

The Bombay High Court recently upheld the rights of the Indian Performing Right Society Limited (IPRS), a music copyright society, to acquire royalties from private FM radio broadcasters.

What does it mean for the FM radio industry? What are radio royalties? And what makes it a landmark decision for the music creators? Here’s a breakdown:

The Judgment

Justice Manish Pitale of the Bombay High Court, on 28 April, pronounced his judgment on the cases titled IPRS vs Rajasthan Patrika Pvt Ltd and IPRS vs Music Broadcast Limited, agreeing with the contentions of the IPRS.

What is IPRS? It’s a society registered under the Copyright Act, 1957, which legitimises the use of copyrighted music by music users; for instance, FM radio broadcasters.

  • It issues licences to music users and collects royalties from them on behalf of IPRS members, such as authors, composers, and publishers of music.

  • Authors and composers are better known as lyricists or writers of music.

  • Publishers are the music companies or those who hold publishing rights of the musical and literary works.

  • IPRS distributes the collected royalty among its members after deducting up to 15 per cent of the administrative costs of the society.

As per the judgment, the applicant IPRS members, who were earlier deprived of their rightful claims due to a 2012 amendment in the Copyright Act, are now entitled to acquire royalties from the defendant companies, Music Broadcast India and Rajasthan Patrika Pvt Ltd, who engage in the business of operating FM radio broadcast channels.

  • Every time a sound recording is communicated to the public through FM radio stations, the authors are entitled to claim royalties for their underlying literary and musical works.

  • The defendants have been directed to pay royalties to the IPRS within a period of six weeks, or they will be restrained from broadcasting the songs.

  • The landmark judgment was first announced on 31 December 2020, by the Intellectual Property Appellate Board (IPAB).

The Legal Tussles of the IPRS 

The IPRS has been fighting for the rights of the underlying authors of music for years now. Before we go ahead, it’s important to understand the meaning of copyright in context with IPRS:

The official logo of the IPRS.

In simple words, a copyright is the intellectual property of the copyright holder, which grants them an exclusive right to use their creations or grant permission to others to do so in accordance with a set of norms. In the context of IPRS, this intellectual property can be the literary or musical works of the holders.

  • Before the 2012 amendment of the Copyright Act of 1957, the original authors were not entitled to claim royalty once their original works became part of a film.

  • The 2012 amendment added provisos (clauses) to sections 17 (first owner of copyright) and 18 (assignment of copyright), and two subclauses to section 19 (mode of assignment) of the act.

  • The IPRS claimed that, as per the new amendment, the authors are now entitled to claim royalty on their original work.

  • The defendants argued that since sections 13 (works in which copyright exists) and 14 (meaning of copyright) of the act weren’t amended, just provisos cannot grant a substantive right to the authors.

IPRS Vs East India Motion Pictures Association (1977): This case focused on the copyright dispute between music authors and the producers of cinematograph films.

  • Prior to the case, the authors were only entitled to claim royalty from film producers for their songs when they were performed in public.

  • Music authors always complained that they were deprived of earning the profits of their work, while film producers were enjoying those benefits.

  • The judgment settled the dispute between the two parties.

  • However, following the judgment, technological advancements like ringtones and caller tunes came as a hardship for the music authors, which led to the 2012 amendment of the Copyright Act.

IPRS Vs Entertainment Network India Limited (ENIL): In 2006, IPRS filed a case against ENIL, which owns Radio Mirchi, with the following allegations:

  • IPRS claimed that ENIL had entered into agreements with the society for the broadcast of music in seven cities in India.

  • However, ENIL began broadcasting in three new cities in India without obtaining the licence from IPRS.

  • This amounted to an infringement of the public performance rights of IPRS.

  • However, the Delhi High Court on 4 January 2021, altered the momentum of IPAB’s 2020 decision in its judgment, favouring ENIL.

The Bombay High Court further pronounced in its judgment on 28 April 2023:

  • The court rejected the claim that the right to collect royalties cannot be recognised as copyright under the law.

  • It was rather asserted that the right to royalty emanates from the copyright held by the authors in their original works.

  • The court announced that the 2012 amendment substantially altered how the rights of original creators were treated.

What Are Radio Royalties? Why Are They Paid?

Although ‘royalty’ has not been defined under the Copyright Act 1957, the Income Tax Act 1961 defines royalty as the consideration (including lump sum payment) for the transfer of all or any rights, including the granting of a licence in respect of an invention, patent, secret formula, process, trademark, model, design, literary, artistic, or scientific work.

  • In simple words, royalties are payments to the copyright owners made by the user in exchange for the right to use, broadcast, or communicate (in this case) their music to the public.

  • These royalties are administered by numerous copyright societies like the IPRS, the Indian Singer Rights Association (ISRA), Novex, and Phonographic Performance Limited (PPL).

  • Not all artistes are part of a copyright society; however, most artists prefer to be a part of one since individual administration to acquire royalties is quite complex.

The IPRS follows a distribution plan for the collection and administration of royalty payments.

  • It collects royalties from a variety of sources, and the amount collected varies depending on the mode of broadcast.

  • Distributions for the revenues earned in the previous fiscal year are typically made quarterly (four times a year): in June, September, December, and March.

How does IPRS calculate royalties? The royalty or licence charges, which are usually payable annually in advance, are calculated by IPRS under a series of tariffs depending on the several categories of premises and classes of entertainment.

  • IPRS collects royalties on a per-play basis.

  • It grants a blanket licence to the radio stations, which gives them access to the copyright holder’s entire musical catalogue for a predetermined period of time.

  • Music is licensed to radio broadcasters on a per-station basis.

  • The licence fee differs depending on the type of city, which is typically divided into five categories depending on the population.

  • An A+ city refers to metro cities like Mumbai, Delhi, Kolkata, and Chennai, whose licence fee will be higher than a D-category city, which is a small town.

The minimum annual royalty fee structure.

  • The annual minimum royalty charge for an A+ category city amounts to Rs 17,00,000.

  • The gross revenue of a radio channel in a metro city is Rs 3,50,000, as declared to the Government of India.

  • The licence fee is based on the applicable rate of 5 percent of the gross revenue of a radio channel.

A Win For the Underlying Authors of Music

The Bombay High Court’s decision has turned out to be a landmark judgement for the underlying authors of music, who were earlier deprived of their right to royalty. Music lyricists, composers, and authors celebrated the new judgment across social media platforms.

Members of the IPRS.

Javed Akhtar, Chairman of IPRS, shared in a media statement, “I am delighted that the honourable Bombay High Court has seen fit to uphold and protect the rights of authors and composers whose creations have enthralled and inspired Indians and the world for decades. This is long due especially since Indian music has reverberated across the world including ‘Naatu Naatu’ composed by M M Keeravaani and authored by Kanukuntla Subhash Chandrabose.”

“All the authors and composer members of IPRS thank the Bombay High Court for this landmark judgement and its well-reasoned analysis recognising the change in the law since 2012. This forward-looking and exemplary judgement places the creator back at the heart of copyright creation which will serve as a great incentive for artistes, the music industry and for the creation of copyright in India,” Akhtar added.

Here are some other reactions from the music industry:

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