Art is a subjective field that allows creatives to open up a whole new world of possibilities. Their work inspires others to try their hand at new, unique creations. Over time, however, we see less and less “new” art.
Everything is inspired by something because as time goes on there are fewer creations that haven’t been done already. This puts artists in a peculiar position when using source material to create new work. Is their work entirely unique and only inspired by the work of others who came before them or are they crossing the line and simply stealing that work for their own profit?
We look at two recent cases with very different results:
- Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith Et Al.
- Kathryn Townsend Griffin, Helen McDonald, and the Estate of Cherrigale Townsend v. Ed Sheeran, Atlantic Records, Sony, and Warner Music Group
In the first case, the Andy Warhol Foundation argued Fair Use of a photograph of pop legend Prince in a piece of art. The Supreme Court denied the foundation’s claim of Fair Use.
In the second case, the estate of Ed Townsend, who co-wrote “Let’s Get It On” with Marvin Gaye, sued Ed Sheeran, claiming his song “Thinking Out Loud” ripped off Townsend and Gaye’s work. A jury dismissed the lawsuit, drawing a line between inspiration and theft.
The Case of Andy Warhol and Fair Use
Fair Use opens up a world of creativity for artists and creatives to bring brilliant ideas to life. The Warhol Foundation argued that the work of the famous artist transformed the photograph in unique ways. The family argued the alterations made by Warhol hardly differentiated the work from its original.
The Supreme Court ruled 7-2 in favor of rock photographer Lynn Goldsmith, stating in its decision that Warhol’s work did not, in fact, transform the work in a meaningful way. The court’s decision heavily weighed the fact that both the original work and the work from Warhol had essentially the same commercial purpose – licensing the photos for use in magazines. The Warhol image, while visually different, sold to the same target market and had significant similarities.
Some criticize this decision as a hit for Fair Use and creativity, but it sets an important precedent for those who make little-to-no changes to original work and intend to profit from it themselves.
Ed Sheeran Argues Lack of Originality in Pop & Wins
A jury dismissed the lawsuit against Ed Sheeran after the estate of Ed Townsend claimed he committed “theft” in his hit song. Sheeran stated that “Most pop songs can fit over most pop songs,” a claim that a lack of originality in the way mainstream pop music is produced protects him from such litigation.
Ultimately, the jury sided with Sheeran who illustrated how common chord progressions existed well before Gaye and Townsend’s “Let’s Get It On.” Allowing this lawsuit to proceed, Sheeran and his legal team argued, would put pop artists all over the globe at risk of litigation due to the similarities in what you hear on the radio every day.
Artists like Sheeran often admit inspiration in their own work while still standing on their own as artists. There are billions of songs on the internet right now. To find work that is not, in some way, inspired by the work of others would be impossible. This case showcases exactly that and allows musicians to proceed with work as long as it’s not a near-exact ripoff like Vanilla Ice’s hit “Ice Ice Baby” did with David Bowie and Freddie Mercury’s “Under Pressure.”
IP Attorneys Must Keep Up with Case Law
It’s imperative that your intellectual property attorney understands and keeps up with relevant case law such as these cases. Your attorney must operate in the present using case law that’s updated and follows the latest industry standards. At McDermott IP Law, we are always keeping up and doing our part to support the work of artists and creatives everywhere. Contact us if you need to defend your work from claims of infringement or from those who are trying to profit off your work.
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