TIE Podcast Preview: In Dialogue with Jonathan Band and Katie Zimmerman on the Ruling and Implications of Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith

Illustration of a pink polaroid camera against a yellow background, representative of pop art by Andy Warhol

TIE readers may recall that earlier this year the U.S. Supreme Court delivered a decision on copyright infringement with major implications for the Galleries, Libraries, Archives and Museum (GLAM) sector. The case in question: Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith. At its center is the question of whether Andy Warhol’s famous silk screen prints of the musical artist Prince violated copyright of celebrated music photographer Lynn Goldsmith’s original photo of the artist, which was used as a reference. In the end, the court ruled 7-2 in favor of Goldsmith, agreeing that fair use in this instance does not apply. While a win for Goldsmith, the court’s decision raises many concerns for the broader GLAM sector as many collections within these spaces are replete with reinterpretations of famous artworks. This issue is even more salient in the wake of the recent wave of AI-generated interpretative art that has spread across the internet. In this “In Dialogue” podcast episode from Toward Inclusive Excellence, Editor in Chief Alexia Hudson-Ward is joined in conversation by legal scholars Katie Zimmerman and Jonathan Band who help to unpack the complexities of this case.

Listen to the full conversation below:

TIE Podcast · Jonathan Band and Katie Zimmerman on Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith

Katie Zimmerman is the Director of Copyright strategy at MIT Libraries where she guides copyright decisions for use of library materials, negotiates content licenses, and helps the Libraries and MIT community create and use copyrightable works to the fullest extent of the law. She earned a BA in psychology from Rice University, her MLIS from the University of Pittsburgh, and her JD from Harvard University. Jonathan Band, who leads policybandwidth and is an adjunct professor at the Georgetown University Law Center, helps shape the laws governing intellectual property and the Internet through a combination of legislative and appellate advocacy. He received his BA, magna cum laude, Phi Beta Kappa, from Harvard College, and his JD from Yale Law School. Both are expertly poised to break down this case and its implications for copyright and fair use. Katie and Jonathan also dive into the Court’s dissenting opinion, advice for GLAM workers to avoid potential copyright infringements in light of this case, and the potential downstream effects on creative works generated by artificial intelligence.

We hope you’ll enjoy this compelling discussion about this remarkable case.

Here is a quick peek inside the episode:

On the major implications of this case:

“One area that I think is interesting to talk about it … is potentially the implications for discussions around AI and copyright that have been coming out recently. So, when you’re training a large language model (LLM) you ingest a lot of copyrightable works. Before this case came out I would have said this was clearly covered under prior case law—this is the Google Books and HathiTrust cases. Once you’ve done your fair use analysis for the ingest, then you have your thing and you’re done and you kind of don’t need to reevaluate every single time. One of the things that this case might suggest is that you do have to redo the fair use analysis for downstream uses.

  • Katie Zimmerman

On advice for libraries, archives, and museums to avoid copyright violations:

“I agree that people are going to have to be more careful, but I think that they shouldn’t be too much more careful … It really is all about the licensing. So if a museum has a Warhol in its collection, which is based on something else, it shouldn’t have any problems about hanging it, it shouldn’t have any problems about including it in a catalog about an exhibit … but they need to be careful about licensing it for other uses, you know for the towels and the coffee mugs. Now, the truth is they should always have been careful about that, but I think that they’ll be more careful.”

  • Jonathan Band

On fair use and AI:

“AI is a very complicated issue. The copyright issues relating to it are complex and we’re still very early days. I would say that with respect to the ingestion of content, I don’t really think that the Warhol decision tells us anything about, it’s just so different … Now on the output side there could be interesting implications. So let’s say the AI generates an image which might be substantially similar to an original image and then it’s going to be used, this derivative is used in some way, and then conceivably the user who entered all the prompts into the AI to generate that output would then have to come up with some fair use defense, so in that case it could be relevant, especially if they used the image and then put it on a T-shirt.”

  • Jonathan Band

“I think the most significant part of that is it still has to be substantially similar. I think this case doesn’t change too much because the output still has to be potentially infringing, I think it would be problematic if that were not the case.”

  • Katie Zimmerman

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Header image is a detail of This is Harlem by Jacob Lawrence. Courtesy of Hirshhorn Museum and Sculpture Garden. © 2021 The Jacob and Gwendolyn Knight Lawrence Foundation, Seattle / Artists Rights Society (ARS), New York. For more information, click here.