Pryor Cashman's Music Group submitted an amicus brief to the U.S. Supreme Court on behalf of 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 decision involving whether or not artist Andy Warhol had a fair use claim when he used a photo of musician Prince in an artwork.

In “SG Urges High Court To Back Photographer In Warhol IP Fight,” Law360 noted:

The Recording Industry Association of America and the National Music Publishers' Association warned in an amicus brief 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 concurred, saying in an amicus brief also filed on Monday that the fair use exception should not be interpreted so broadly that it would “swallow the exclusive right of copyright owners to derivative works.”

The brief begins by spotlighting the importance of a more definite reading of fair use, noting that “[t]he question presented in this case bears directly on both the business and artistic interests of amici and their members. Adopting the broad and subjective fair use test advocated by Petitioner would directly undermine the rights of amici's members (and other copyright holders) to assert, control, and protect their valuable copyrights, including in particular the exclusive rights to license their copyrighted works, and to create and to authorize others to create derivative works based on those works.”

The firm's clients tell the Court, “The Second Circuit's decision and reasoning should be affirmed,” and “all four statutory fair use factors—including, significantly, the fourth market factor—must be given due and independent consideration in any fair use analysis.” If the petitioner's reductive “meaning or message” test were adopted, the RIAA and NMPA note, licensing practices that are both extremely common and critical to the operation and success of the American music industry may be undermined and jeopardized: “For instance, The Hershey Company likely intended  its use of the 1982 song “I Melt With You” in chocolate advertisements to invoke melted and shared chocolate, and the meaning  of the composition as used in the Hershey's advertisement (i.e.,to sell chocolate) was certainly different than as originally intended by Modern English. It is clear that intended meaning and message cannot be the only consideration to determine whether a new use is fair.”

The brief concludes by arguing, “this Court should set a clear standard for the limited circumstances where the public interest dictates the curtailing of a copyright holder's rights in favor of the creation of a new, fair use…the Second Circuit properly applied the appropriate standard and determined that Warhol's and AWF's use was not fair in this case, and its decision and reasoning should be affirmed.”

The brief was prepared for the RIAA and NMPA by Pryor Cashman lawyers 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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