Music industry

Pryor Cashman Files SCOTUS Amicus Brief for Music Industry Clients in Warhol IP Case – Copyright

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Pryor Cashman’s music group submitted an amicus brief to the United States Supreme Court on behalf of its clients, the Recording Industry Association of America (RIAA) and the National Music Publishers’ Association (NMPA).

The brief is part of a SCOTUS review of a Second Circuit ruling regarding whether or not artist Andy Warhol had a fair use claim when he used a photo of musician Prince in a work of ‘art.

In “SG urges High Court to support photographer in fight against Warhol intellectual property”, Law360 Noted:

The Recording Industry Association of America and the National Music Publishers’ Association warned in an amicus brief on Monday that the foundation’s proposed test would abrogate the exclusive rights of their members – American music companies and artist-owned labels – and “would rewrite the limited fair use exception.”

A group of intellectual property professors and social justice professors agreed, saying in an amicus brief also filed Monday that the fair use exception should not be construed so broadly that it would “swallow the exclusive right of copyright owners to derivative works”.

The brief begins by emphasizing the importance of a more accurate reading of fair use, noting that “[t]he issue presented in this case relates directly to the commercial and artistic interests of amici and their members. Adoption of the broad and subjective fair use test advocated by the Petitioner would directly undermine the rights of amici members (and other copyright owners) to assert, control and protect their valuable copyrights. , including in particular the exclusive rights to license their copyrighted works, and to create and authorize others to create derivative works based on such works. »

The company’s customers tell the court: “The Second Circuit’s decision and reasoning must stand” and “all four legal factors of fair use – including, significantly, the fourth market factor – must be upheld.” duly and independently considered in any analysis of fair use.” If the petitioner’s reductive “meaning or message” test were adopted, the RIAA and NMPA note, licensing practices that are both extremely common and essential to the functioning and success of the American music industry could be undermined and compromised: “For example, The Hershey Company likely intended his use of the 1982 song “I Melt With You” in chocolate commercials to evoke melted and shared chocolate, and the meaning of the composition as used in Hershey’s advertising (that’s to say,to sell chocolate) was certainly different from that originally intended by modern English. Clearly, the intended meaning and message cannot be the sole consideration in determining whether a new use is fair.

The brief concludes by asserting that “this Court should establish a clear standard for the limited circumstances where the public interest dictates the limitation of the rights of a copyright owner in favor of the creation of a new fair use…the second circuit correctly applied the appropriate standard. and determined that the use of Warhol and AWF was not fair in this case, and its decision and reasoning should stand.

The filing was prepared for the RIAA and NMPA by attorneys for Pryor Cashman, Frank P. Scibilia, Donald S. Zakarin, Benjamin S. Akley and Haley Sylvester.

Read the full amicus brief and Law360 article using the link below (subscription may be required).

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