Amicus Curiae Brief — Andy Warhol Foundation for the Visual Arts, Inc., Petitioner v. Lynn Goldsmith, et al.

Supreme Court briefAug 15, 2022

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No. 21-869

In the

Supreme Court of the United States

——————————

THE ANDY WARHOL FOUNDATION

FOR THE VISUAL ARTS, INC.

Petitioner,

LYNN GOLDSMITH AND LYNN GOLDSMITH, LTD.

Respondents.

——————————

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

——————————

BRIEF OF AMICUS CURIAE

JEFFREY SEDLIK,

PROFESSIONAL PHOTOGRAPHER AND

PHOTOGRAPHY LICENSING EXPERT,

IN SUPPORT OF RESPONDENTS

——————————

Matthew Hersh

Counsel Of Record

99 Blair Alley SW #1155

Washington, DC 20024

(202) 253-2514

matt@matthewhersh.com

Counsel for Amicus Curiae

TABLE OF CONTENTS

TABLE OF CONTENTS ........................................... i

TABLE OF AUTHORITIES .................................... iii

INTEREST OF AMICUS CURIAE.......................... 1

SUMMARY OF ARGUMENT .................................. 4

ARGUMENT ............................................................ 9

The Warhol Foundation’s Boundless

Interpretation of the Fair Use Doctrine Poses

an Existential Threat to the Business of

Photography. ...................................................... 9

A. The Warhol Foundation’s Proposed Rule

Would Lead to a Flood of Unlicensed Use

of Photographs. ............................................ 9

B. The Business of Photography Is

Structurally Ill-Equipped to Withstand

the Flood of Unlicensed Uses That the

Warhol Foundation’s Proposed Rule

Would Enable. ........................................... 14

II. The Warhol Foundation’s Interpretation of

the Fair Use Doctrine Is Rooted in Deep

Misimpressions About the Nature of

Photography. .................................................... 22

A. The Foundation Rehashes LongDiscredited Arguments About the

Creative Value of Portrait Photography... 22

B. The Foundation Wrongly Suggests That

a Photograph’s Protection Extends No

Further Than Its Initial Meaning or

Purpose. ..................................................... 28

III. Appropriation Artists Can Readily Obtain

Artist Reference Licenses from

Photographers. ................................................. 31

CONCLUSION ....................................................... 33

iii

TABLE OF AUTHORITIES

Cases

Beaulieu v. Stockwell et al.,

No. 3586 DWF/HB (D. Minn. slip op. Dec.

7, 2018), appeal pending, No. 21-3833

(CA8) ................................................................. 24

Blanch v. Koons,

467 F.3d 244 (2d Cir. 2006) ......................... 5, 10

Bridgeport Music, Inc. v. UMG Recordings,

Inc.,

585 F.3d 267 (6th Cir. 2009) ............................ 11

Burrow-Giles Lithographic Company Co. v.

Sarony,

111 U.S. 53 (1884) ............................................ 23

Campbell v. Acuff-Rose Music, Inc.

510 U.S. 569 (1994) ................................ 5, 11, 21

Cariou v. Prince

714 F.3d 694 (2d Cir. 2013) ............................... 5

Clean Flicks of Colorado, LLC v. Soderbergh,

433 F. Supp. 2d 1236 (2006) ............................ 11

Feist Publications, Inc. v. Rural Tel. Serv.

Co.,

499 U.S. 340 (1991) ............................................ 9

Herbert v. Shanley Co.,

242 U.S. 591, 595 (1917) .................................. 16

Jewelers' Circular Pub. Co. v. Keystone Pub.

Co.,

274 F. 932, 934 (S.D.N.Y. 1921) ...................... 25

Meshworks, Inc. v. Toyota Motor Sales,

528 F.3d 1258 (10th Cir. 2008) .......................... 7

Salinger v. Colting,

607 F.3d 68 (2d Cir. 2010) ............................... 11

Sedlik v. Drachenberg,

No. CV 21-1102-DSF (MRWx), 2022 WL

2784818 (C.D. Cal. May 31, 2022) ..................... 3

Seltzer v. Green Day, Inc.,

725 F.3d 1170 (9th Cir. 2013) .......... 6, 11, 12, 31

Ty, Inc. v. Publications Int'l Ltd.,

292 F.3d 512, 517 (7th Cir. 2002) (Posner,

J.) ...................................................................... 21

Other Authorities

Alec Soth and the Future of (Alec Soth’s)

Photography, Interview, Mar. 21, 2011,

https://www.interviewmagazine.com/art/

alec-soth-photography ..................................... 29

Brief for Petitioner in MGM v. Grokster, O.T.

2004, No. 480.................................................... 21

Bruce, Teresa M, , In the Language of

Pictures: How Copyright Law Fails to

Adequately Account for Photography, 115

W. Va. L. Rev. 93 (2012) .................................. 23

Christie’s, Irving Penn (B. 1917), Cuzco

Children,

https://www.christies.com/en/lot/lot5056795 ............................................................ 25

Ginsburg, Jane C. at al., Copyright Law

(2012) ................................................................ 23

Glueck, Grace, Art People, N.Y. Times, Nov.

12, 1976 ............................................................ 28

Ihnat, Gwen, “Video Killed The Radio Star”

killed the radio star, A.V. Club.com,

October 5, 2015,

https://www.avclub.com/video-killed-theradio-star-killed-the-radio-star1798284997 ...................................................... 15

Kumar, Rahul, How to protect your images

online, WPOven, May 22, 2022,

https://www.wpoven.com/blog/protectimages/.............................................................. 14

McDermon, Daniel, Mapplethorpe

Photograph Brings $478,000 at Auction,

N.Y. Times, Oct. 9, 2015 .................................. 25

Menuez, Doug, A Copyright Manifesto:

Slander, Stupidity & the Mindless Mob

Attacks on Jay Maisel, July 10, 2011,

https://menuez.com/journal/2020/4/7/acopyright-manifesto-slander-stupidityamp-the-mindless-mob-attacks-on-jaymaisel ............................................................... 13

Newman, Cathy, A Life Revealed, National

Geographic Magazine, March 31, 2002.

https://www.nationalgeographic.com/mag

azine/article/afghan-girl-revealed ................... 25

PLUS Picture Licensing Glossary,

http://www.usePLUS.com/useplus/glossar

y.asp.................................................................. 32

PLUS Registry website,

http://www.PLUS.org ....................................... 32

Recording Industry Association of America,

The Grokster Decision, Ten Years Later,

Kune 26, 2015,

https://riaa.medium.com/the-groksterdecision-6faa91247dbf ..................................... 21

Sekula, Allan, On the Invention of

Photographic Meaning, 13:5 Artforum 37

(Jan. 1975) ........................................................ 30

Sontag, Susan, On Photography (1973)............. 8, 29

The Andy Warhol Foundation for the Visual

Arts, Theater of Operations: The Gulf

Wars 1991–2011, Grant Cycle Fall 2018,

https://warholfoundation.org/grants/archi

ve/theater-of-operations-the-gulf-wars1991-2011/ ........................................................ 30

Wasserman, Edward A, As If By Design: How

Creative Behaviors Really Evolve 190

(2021) ................................................................ 22

INTEREST OF AMICUS CURIAE 1

Jeffrey Sedlik’s expertise as a photographer and

as a leader in the visual arts community lend him an

uncommon range of interests in this case.

Like Lynn Goldsmith, Sedlik has made his mark

as a celebrity photographer. He takes pride in making

the most of every photo session. He once earned an

audience with B.B. King by sending a note to the blues

legend’s hotel room before a concert. The portrait he

created at the brief session that followed in King’s tiny

dressing room, depicting King with his beloved guitar

Lucille, earned instant acclaim. Another time, after a

movie poster shoot with George Burns, he petitioned

the famed comedian for an extra minute. With

carefully positioned flash backlighting to illuminate

and freeze the smoke from his subject’s ever-present

El Producto Queens cigar, he created a portrait that

now hangs in prestigious collections worldwide.

1 Pursuant to Rule 37.6, no party or counsel authored this brief

in whole or in part and no person other than Amicus or his

counsel made a monetary contribution intended to fund the

preparation or submission of this brief. Counsel for all parties

have consented to the filing of amicus briefs.

Sedlik is a longtime advocate for his colleagues in

the visual arts community. He is the President and cofounder of the PLUS Coalition, a global non-profit

standards body for the licensing of visual artworks.

Before that, he was the National President of the

Advertising Photographers of America and a founding

Director of the American Society for Collective Rights

Licensing. Sedlik has also been a professor at the Art

Center College of Design in California for twenty-five

years, providing instruction to young visual artists on

When not engaged in these endeavors, Sedlik also

manages copyright licensing for the estates of several

prominent deceased photographers. He has earned a

wide range of honors, including the United Nations

Photography Council Industry Leadership Award, the

PhotoMedia Photographer of the Year, and a Lifetime

Achievement Award from American Photographic

Artists.

Sedlik has built upon his professional experience

to become a recognized expert on copyright matters—

particularly in licensing and derivative use of

photography, the issues at the core of this case. He has

served as a consultant or expert witness in over three

hundred copyright actions, many involving a fair use

defense to a claim of infringement of a photograph. 2

He has testified before congressional committees on a

wide range of proposed copyright reforms and is a

2 Sedlik was engaged as an expert witness by Respondents and

provided testimony when this action was before the District

Court, but his engagement concluded at that time and he is no

longer retained by Respondents or their counsel.

frequent speaker at copyright events hosted by the

United States Copyright Office, the Department of

Commerce, and other government agencies. And he

serves on the Copyright Public Modernization

Committee, at the request of the Librarian of

Congress. These and other activities have propelled

him into a decades-long struggle to defend

photographers against efforts, like those of the Andy

Warhol Foundation in this case, to unmoor fair use

from its origins and expose artists like Goldsmith to

yet more piracy of their life’s work.

Sedlik’s interest in this case has been driven

home, in a deeply personal way, in the months since

the Court granted certiorari. In 1989, as a young

photographer, Sedlik created what one federal court

has characterized as “the iconic photographic portrait

depicting world-famous jazz musician Miles Davis.”

Sedlik v. Drachenberg, No. CV 21-1102-DSF (MRWx),

2022 WL 2784818 at *1 (C.D. Cal. May 31, 2022)

Though his Miles Davis portrait has all too often been

exploited by others without permission, a particularly

flagrant act of appropriation by an internationally

known tattooist in 2017 prompted Sedlik, a generally

reluctant litigant, to turn to the courts. The principal

defendant in that case, Katherine Von Drachenberg

(“Kat Von D” to her many fans), inked a near-perfect

replica onto a customer’s upper arm—going so far as

to meticulously trace the photograph on a lightbox as

an intermediate step—and then repeatedly used the

unauthorized derivative tattoo (and Sedlik’s original

portrait) to promote her business to over twenty

million followers on social media.

Sedlik’s original and the tattooist’s unauthorized

replica are below: 3

Sedlik will soon have to convince a jury that the

tattoo on the right was not a fair use of the photograph

on the left—a task that will become considerably more

difficult if the decision below is not affirmed. Sedlik is

prepared to assume the risks of litigation in his own

case. But many photographers cannot. Sedlik proudly

contributes this brief on their behalf.

SUMMARY OF ARGUMENT

Jeffrey Sedlik respectfully tenders this brief to

bring to the attention of the Court a career

photographer’s perspective. Sedlik will not repeat

legal arguments that have been made by counsel for

Goldsmith. Those advocates have ably explained why

Record in No. 21-1102 (C.D. Cal.), Doc. 35-17 (Miles Davis

photograph); id., Doc. 35-28 (tattoo). A copyright notice has been

added to Sedlik's photograph here to identify Sedlik as the

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569

(1994), and its progeny, do not remotely support the

argument the Andy Warhol Foundation advances

here. Sedlik tenders this brief, instead, to make three

distinct points.

1. The extreme position on fair use taken by the

Foundation poses an existential threat to

photographers. On the surface, the Foundation’s rule

looks like it treats all creative works the same. In

reality it does anything but. By the Foundation’s

boundless theory, anyone can claim a transformative

use—and thereby assert an essentially irrebuttable

presumption of fair use—merely by claiming a change

to the “meaning or message” of a work. We are not

talking about news, criticism, scholarship, parody, or

other traditional mainstays of fair use. This is the

taking of art to make other art. And no form of art will

be so easily taken, under the Foundation’s theory, as

photography. It takes considerable time to rewrite a

book, rearrange a song, recode an operating system,

or re-edit a movie. But a novice with a computer,

smartphone or crayon can alter a photograph in

seconds. “Anyone can do them,” Andy Warhol said of

his own alterations. J.A.195. Everyone will.

Experience bears this out. Photographers have

come to expect that when new fair use doctrines

emerge in the circuit courts, they will be built upon

the backs of photographers. Bill Graham Archives v.

Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006),

Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006), Cariou

v. Prince, 714 F.3d 694 (2d Cir. 2013), and Kienitz v.

Sconnie Nation LLC, 766 F.3d 756 (7th Cir. 2014), are

all landmark decisions that considerably expanded

the scope of fair use doctrine in the realm of visual

arts. And each came at the expense of photography.

Even Seltzer v. Green Day, Inc., 725 F.3d 1170 (9th

Cir. 2013), the graphic arts case that arguably

stretched the fair use doctrine to its farthest extreme

to date, threatens terrible consequences for the art

and profession of photography. Whatever can be done

to a work of graphic art can be done just as easily to a

photograph.

The Foundation’s limitless doctrine threatens the

most vulnerable class of creative artists. Secondary

and derivative uses—like the use that is at the heart

of this case—are essential for photographers to make

a living. Photographers cannot afford to rest on their

laurels and wait for royalty checks to arrive. They are

forced to constantly innovate—by creating new works,

identifying new and different ways to exploit their

works, acquiring new clients, and opening new

markets. If the Foundation’s proposal becomes the

law, many photographers will lose the lion’s share of

their revenue. And unlike the corporate titans of

motion pictures, music, books and software, few

photographers have the resources to protect their

works from piracy. Photographers face a Hobson’s

choice: either ignore the infringing activity and thus

encourage continued infringement, or allow their

businesses to dwindle away while they chase down

pirates. Fair use doctrine is already hard enough on

photographers. The Foundation’s rule would all but

eviscerate their profession.

2. The Foundation does not merely challenge the

livelihood of photographers. It also needlessly

denigrates the entire art form. Warhol was an

undeniable genius. But he also built his empire, at

least in part, on the backs of the photographers whose

works he appropriated without compensation. In so

doing, he sent the unmistakable message that

photographs are free for the taking—a viewpoint that

remains in currency today. And now the Foundation

asks this Court to bestow on that piracy the protection

of the law. The damage is not measured in mere

dollars.

The Foundation spreads deep misimpressions

about the nature of photography. We have long passed

the time when “it was debated whether a camera

could do anything more than merely record the

physical world.” Meshworks, Inc. v. Toyota Motor

Sales, 528 F.3d 1258, 1264 (10th Cir. 2008) (Gorsuch,

J.) (internal quotation omitted). But the Foundation

seeks to turn back the clock. To the Foundation, it

would seem, “a photograph of Prince is a photograph

of Prince”—interchangeable, adaptable, appropriable.

That is not remotely true. Celebrity portraits, like all

photographs, reflect an almost infinite constellation of

creative

decisions

lighting,

composition,

background, perspective, subject pose, depth of field,

focal length, camera height, color, texture, contrast,

and post-processing (and this is to mention only a

few). And it is a fool’s game to assume that the value

of a photograph rises and falls only with the identity

of the subject. Some of the best-known photographs of

our time involved subjects who were anonymous to the

world and even to the photographer. An Afghan girl

with green eyes is testament to that.

It is a similar fallacy that the value of a

photograph can be cabined to a single message or

meaning, as the Foundation would have this Court

believe. Susan Sontag spoke for a generation of

photographers when she wrote that “[p]hotographs,

which cannot themselves explain anything, are

inexhaustible invitations to deduction, speculation,

and fantasy.” Susan Sontag, On Photography 24

(1973). Sedlik has licensed his photographs for use in

billboards, magazine covers, and advertising

campaigns—to say nothing of the inevitable

mousepads, t-shirts, and coffee mugs. Each of those

uses could readily give a new meaning or message to

his work. If they become cost-free, as the Foundation

suggests, many photographers will lose their

livelihoods.

3. Finally, the Warhol Foundation’s chicken-little

routine—the suggestion that appropriation artists

from the Warhol tradition will suffer if forced to obtain

licenses to create derivative works—is not only

unseemly but also empirically wrong. Artist reference

licenses are widely available and easy to obtain. And

like most professional photographers, Sedlik has

repeatedly granted such licenses to his fellow artists.

The sky will not fall if the Second Circuit’s judgment

is affirmed.

In a larger sense, the challenge photographers

confront today is the same one that movie studios,

record labels and music publishers faced at the time

that this Court decided Metro-Goldwyn-Mayer

Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005).

Peer-to-peer website pirates were threatening to

destroy

those

industries—and

worse,

were

proclaiming that their acts of theft were legal. This

Court put an end to that folly. Today, it is

photographers who have suffered from a nearly

twenty-year erosion of their rights as creators. The

Court has a chance once again to put things right.

ARGUMENT

The

Warhol

Foundation’s

Boundless

Interpretation of the Fair Use Doctrine

Poses an Existential Threat to the Business

of Photography.

A. The Warhol Foundation’s Proposed Rule

Would Lead to a Flood of Unlicensed Use

of Photographs.

The Warhol Foundation’s proposed rule is neutral

on its face, but will single out photographers in

practice. The Foundation posits that any creative

work that conveys a “meaning or message” distinct

from the original—just how distinct apparently does

not matter—should be deemed transformative for

purposes of the fair use defense. Brief for Petitioner

(“Pet. Br.”) 2. That doctrine, at least on the surface,

would open the door for appropriation of all types of

creative works, be they motion pictures, sound

recordings, dramatic works, books, or software code.

But the artist who would suffer the greatest loss of

rights is the photographer. There are three reasons

why.

1. For one thing, it is far easier to alter a

photograph—and thereby claim to have imbued that

photograph with a new “meaning or message”—than

just about any other type of work. The time and effort

one invests in a work, of course, does not determine

whether that work deserves protection. Feist

Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340,

359-60 (1991) (rejecting “sweat of the brow” doctrine).

But it still tells us something about the practical

consequences of the Foundation’s rule. It takes

considerable time to rewrite a book, rearrange a song,

recode an operating system, or re-edit a movie. But

anyone with a computer, smartphone or crayon can

alter a photograph in seconds, claim a new meaning

or message, and thereby entitle themselves—by the

Foundation’s apparently boundless doctrine—to “a

strong presumption” of protection under the law. Pet.

Br. 40. If the Foundation’s rule is adopted, legalized

piracy of photographs will become endemic.

2. Moreover, the argument the Foundation

advances here—as it surely knows—is almost certain

to be implemented more aggressively when it comes

to photographs. Photographers like Sedlik have come

to understand that when unfavorable new doctrines

evolve in the courts, they and their colleagues will be

on the front lines. The opinion on review is a salutary

example of a panel that understood the expressive

value of photographs and evaluated all four fair use

factors correctly. But that decision came in the wake

of (and perhaps as a corrective to) a long run of cases

that expanded the doctrine of fair use in new and

unforeseen ways, each one at the expense of

photographers. See Bill Graham Archives v. Dorling

Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006) (use of

photographs of a famous musical group to illustrate a

chronologically ordered, 480-page coffee table book),

Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006)

(appropriation of photograph for a collage work),

Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013)

(appropriation of black-and-white photographs for

oversized canvas collages), and Kienitz v. Sconnie

Nation LLC, 766 F.3d 756 (7th Cir. 2014)

(appropriation of photograph of a local mayor for a tshirt). Each of those decisions was on the forefront of

a continuous, systematic expansion of fair use

doctrine in the wake of Campbell v. Acuff-Rose Music,

Inc., 510 U.S. 569 (1994). And in each decision,

photography paid the price.

The story is quite different with other types of

works. A Colorado company once endeavored to make

“clean” versions of movies that, by cutting scenes of

sex, violence, and profanity, would enable the videos

to be watched by families “without concern for any

harmful effects on their children.” Clean Flicks of

Colorado, LLC v. Soderbergh, 433 F. Supp. 2d 1236,

1240 (2006). Those modifications worked a far greater

change in meaning and message than Warhol carried

out here. The court rejected fair use. Id. at 1241-42.

And in Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010),

a writer penned a novel about a 76-year-old “Mr. C,”

ostensibly an advanced-age version of Holden

Caulfield, navigating a world in which a fictionalized

J.D. Salinger “has been haunted by his creation and

now wishes to bring him back to life in order to kill

him.” Id. at 71-72. It was assuredly a different

meaning and message from the original. It was still

not fair use. Id. at 83. See also Bridgeport Music, Inc.

v. UMG Recordings, Inc., 585 F.3d 267, 278 (6th Cir.

2009) (copying of elements of the classic “Atomic Dog”

refrain not fair use as a matter of law, even though

used in a song with “a different theme, mood, and

tone”).

Even Seltzer v. Green Day, Inc., 725 F.3d 1170 (9th

Cir. 2013), the case on which the Foundation premised

a circuit split, came indirectly at the expense of

photographers. In that case, a rock band used an

illustration of a screaming face as the centerpiece for

a video backdrop during the performance of one of its

songs. The Ninth Circuit, concluding that the video

conveyed “new information, new aesthetics, new

insights and understandings” that were distinct from

the original piece, termed it fair use. 725 F.3d at 1177.

The unlicensed work in that case was a graphic

illustration and not a photograph. But the open-ended

fair use doctrine elaborated in that case may well be

applied, if the decision on appeal is not affirmed, to

defeat legitimate infringement claims brought by

photographers—such as the claim that Sedlik has

brought against the tattooist who purloined his work.

3. Finally, the position staked out by the

Foundation would alter the business of photography

in ways that go well beyond the question presented in

this case. A decision in the Foundation’s favor will

even further fix in the minds of the public the

devastating urban myth that photographs are free for

the taking. "Photographs present difficult questions

under copyright law,” the Foundation tells us at the

outset of its brief. Pet. Br. 5. In fact, the principal

difficulty photographers face is the dismissive

attitude of fellow artists like Warhol and others of his

school. Warhol generously helped himself to the work

of photographers—displaying the same apparent

disregard for copyright as his Foundation does

today—to generate a personal fortune, to say nothing

of an almost-mythical celebrity status. In the 1960’s

he was sued three times for it. Brief for Respondent

(“Resp. Br.”) 38. And here we are again. The

Foundation does not apologize for this. The

Foundation, like Warhol himself, even appears proud

of the artist’s appropriation. Its message to other

visual artists is unmistakable: Help yourself to all the

photographs you want. You’ll get away with it.

That attitude is already far too prevalent today.

Many people buy into the urban myth that the

photographs they find on the internet are free—or

that if they modify a photograph even in the slightest,

they can use—or worse, sell—the result. When Sedlik

brought his claim against the California tattooist,

social media ballooned with comments like: “All the

photos you have access to on the internet are public

domain and nobody can sue,” or “It’s not 100 percent

the photo, so it’s very petty and shouldn’t be legal to

sue.” Even worse, Sedlik has faced a battery of

harassment, online and off, for standing up to the

tattooist who threatened his rights and his livelihood.

And he is not the only one. 4

Equally striking is the fact that the Foundation

makes this argument without acknowledging any

other form of creative art. It is hard to imagine the

Foundation arguing—at least to this Court—that a

modest adjustment in “meaning or message” could

effectively convey a license to an Elvis Presley song,

The Phantom of the Opera, a Better Call Saul episode,

the source code for the latest MacOS, or a Harry

Potter book. See also Brief for The Motion Picture

Association, Inc. as Amicus Curiae 5 (hypothesizing a

“remake of the film Casablanca that is entirely the

4 Sedlik is not the first photographer to face a public backlash for

attempting to enforce his rights in a photograph of Miles Davis.

After Jay Maisel successfully sued Kickstarter CTO Andy Baio

for appropriating one of his photos of the legend, critics

vandalized his building and deluged his Facebook page with

comments along the lines of “hope you get colon cancer and die.”

https://menuez.com/journal/2020/4/7/a-copyright-manifesto-slan

der-stupidity-amp-the-mindless-mob-attacks-on-jay-maisel. (A

copy of all material sourced to the internet is maintained in

counsel’s files.)

same as the original except that at the end Rick

boards the flight out of the city with Ilsa and leaves

Victor Laszlow behind to be apprehended by the

Nazis”). But one doubts the Foundation truly intends

those consequences. More likely the Foundation, like

Warhol himself, simply sees photography as a

medium best suited for cannibalization, not subject to

the rights and remedies on which they have built an

empire. 5

B. The Business of Photography Is

Structurally Ill-Equipped to Withstand

the Flood of Unlicensed Uses That the

Warhol Foundation’s Proposed Rule

Would Enable.

It is bad enough that the Warhol Foundation

proposes to open the door for a flood of unlicensed uses

of photographs. The Foundation’s proposal also

targets the creative artists who are already the most

vulnerable.

1. Photographers almost never make a living off of

a single photo session—to say nothing of a single

photograph. Musicians or movie producers sometimes

have better luck. A single song or Hollywood

production might bring in revenue for its creators and

their heirs over the course of generations, as classic

5 Not only is it easier to alter photographs than other works; it is

also easier to poach them, whether by "right-click" downloads,

screenshots, "click and drag," or image harvesting apps. In

response to rampant image theft, some photographers—

including Sedlik—password-protect their entire websites or

employ other technical measures in (largely unsuccessful)

attempts to protect their works on the web. Cf. https://www.

wpoven.com/blog/protect-images/

film festivals and “80’s nights” continue to attest. And

even a creator who never strikes gold again will still

enjoy revenues for a lifetime—as the phrase “one-hit

wonder” suggests. The band that both figuratively and

literally killed the radio star is one notorious example.

https://www.avclub.com/video-killed-the-radio-starkilled-the-radio-star-1798284997.

Photographers have no such equivalent. Of course

a single photograph may enjoy fame or popularity.

Sedlik and Goldsmith both know what that is like. But

the revenue from a “hit” photograph (the term even

sounds awkward, which is telling) does not approach

the revenue from a hit movie or a hit song.

Photographs might be gold or platinum in tint but not

in status. Moreover, a single use of a photograph in a

particular medium—even if lucrative at the time—

may well exhaust all future licensing opportunities for

that photograph in the same medium. Once a

photograph is reproduced on a book cover, for

example, no other publisher will seek to license that

photograph for another book cover.

So photographers—even successful ones—have to

work doubly hard to make ends meet. Sedlik tells his

students that the first paycheck they get for licensing

a photograph should be followed by at least twenty

more. And that is no exaggeration. Photographers are

constantly on the lookout for opportunities to exploit

licensed secondary uses of their photographs—many

of the exact type of uses that, if the Foundation’s

doctrine is adopted, will become fair game. A typical

photographer may grant licenses for use on books,

magazines, billboards, subways, shirts, PowerPoint

presentations, greeting cards, mouse pads, furniture,

bus benches, product packages, coffee mugs, caps,

statues, album covers, movie posters, neckties,

jackets, museum banners, motion pictures, television

shows, athletic shoes, calendars, posters, trade show

displays, restaurant menus, commercials, prints,

social media, websites, web advertising, newspapers

and many other types of media. And timing also

matters: a photographer may elect to withhold a

photograph from the licensing marketplace in order to

allow the photograph to accrue value over time, while

also waiting for an ideal opportunity to maximize

compensation for what may be a one-time event.

Indeed, Goldsmith did just that with her Prince

photographs. See Resp. Br. 8.

2. Photographers start from behind in another

way. Photographers, more than most other creative

artists, face tremendous challenges in collecting

license revenues and pursuing infringers.

Begin with the lack of powerful collection and

enforcement agencies. There is no ASCAP, Harry Fox

Agency, or SoundExchange to collect revenues from

photography consumers and distribute them to their

rightful owners. Photographers do not have the money

and clout to create such organizations. And even if

they did, those organizations would not have the same

leverage. When it comes to other creative works—and

this is particularly so with music and movies—

consumers demand to have entire catalogs of content

at their fingertips (think: Netflix, Spotify, or

Pandora). That was true even in the dance hall days.

See Herbert v. Shanley Co., 242 U.S. 591, 595 (1917)

(earliest ASCAP case). Photographers have never

been able to wield such leverage. 6

And then there is the challenge of piracy. All

infringers. Nobody relishes the task—but few artists

could survive without it. Yet the task is not the same

for everybody. Those who create movies and music

and software, for instance, have lost tremendous

revenues to pirates. But they have advantages as well.

For one thing, the creators of most forms of mass

entertainment have massive, well-funded trade

organizations and a blizzard of AmLaw 100 law firms

at their disposal. They can afford to spend time

chasing infringers. For another, the people who steal

movies and music generally do so to share those works

with others (and thereby profit from web traffic). If

they cannot be easily found, they do not earn. And

because those pirates often enjoy massive revenues,

the upside of a lawsuit—infringers’ profits or heavy

statutory damages—can offset the cost of litigation.

None of this is true for photographers. There is no

organization with the clout or power of the major

studios or record companies—to say nothing of the

financial resources to go after infringers. And the

nature of photography infringement is different as

well. The infringement at issue in one of Goldsmith’s

counterclaims—the unlicensed reproduction of a

As it happens, the most closely analogous organization for

photographers and illustrators is one that Sedlik helped form.

But that organization, American Society for Collective Rights

Licensing, is capable only of distributing royalties earned under

foreign statutory schemes. No such law covers photographers in

this country.

photograph within a national publication—is not the

norm. To the contrary, most infringement of

photography takes place on the internet, scattered one

by one through thousands or even millions of sites.

There are services that can find some of them, but at

a cost—and then the challenge is enforcement. The

photographer who wishes to take on infringers this

way must file dozens or even hundreds of lawsuits,

each an uphill battle with only a small potential for

payout. Most choose not to.

And thus in theory photographs are protected by

Photographers are among the smallest of small

businesses. Most have no employees and must

dedicate days, nights, weekends, and holidays to

seeking commissions and licensing opportunities—to

say nothing of creating photographs. The time

required to identify infringements, locate and contact

the infringers, submit takedown notifications under

the Digital Millennium Copyright Act, and negotiate

settlements is overwhelming. Photographers face a

Hobson’s choice: either ignore the infringing activity

and thus encourage continued infringement, or allow

their businesses to dwindle away while they chase

down pirates.

3. All of these themes are on display when we turn

to derivative uses—the kind of exploitation that is at

issue here. Like all artists, photographers seek to

exploit not only the secondary use markets for their

works, but also to create (or license others to create)

derivative works. For example, the photographer may

colorize a previously black and white photograph, add

or remove visual elements in a photograph, remove

and replace the background of a photograph,

recompose a photograph by cropping, combine a

photograph with other photographs, change the visual

appearance of the subject or other elements of the

photograph, or otherwise manipulate the photograph

to create new meanings or effects. For that matter,

photographers may render a photograph in an

entirely different medium, such as a painting, sketch

or (it goes without saying) a silkscreen. Photographers

deserve to be paid for use of these derivative creations.

But far too often they are not.

Sedlik can speak from searing personal

experience about this issue. Sedlik licenses his Miles

Davis photograph for a wide range of derivative uses,

including as a reference for other creative artists. At

one point he licensed the photograph to a city in

France, Joué-lès-Tours, so that it could make a statue

based on the photo. He has also licensed it, on at least

one occasion, to a tattooist on the East Coast. The

California tattooist described at the opening of this

brief has never obtained a license—and depending on

the outcome of this case, might pay no price at all for

using Sedlik’s work.

But the California tattooist is only one of legions

of pirates of the Miles Davis photograph. On the

following page is a sampling of infringing uses that

Sedlik has discovered:

Every one of these uses is a derivative work based

on Sedlik’s Miles Davis photo. Many were difficult to

find. They were identified online, in many cases, only

after many hours of searching. And the pirates, when

contacted, trotted out all the classic urban myths: “I

found this on the internet—so it’s free.” Or: “All you

did was snap the photo—I did the real work.” And not

one of these unlicensed derivative works is remotely

“complementary to the copyrighted work.” Ty, Inc. v.

Publications Int'l Ltd., 292 F.3d 512, 517 (7th Cir.

2002) (Posner, J.). They are not parodies of the

original photograph nor commentaries on Sedlik or

his work. They are simply substitutes for Sedlik’s

photograph—“the only harm to derivatives,” this

Court has declared, “that need concern us.” Campbell,

510 U.S. at 593.

4. In a larger sense, the challenge photographers

face today is the same one that movie studios, record

labels and music publishers faced at the time this

Court decided MGM v. Grokster. Spinoffs of the

infamous Napster were at the time facilitating

“massive infringement” of sound recordings, 545 U.S.

at 937—and worse, were eroding not only the value of

creative works but “respect for the very foundations of

in MGM v. Grokster, O.T. 2004, No. 480, p.14. Things

changed immediately after the Grokster decision

issued. Licensed online providers, previously locked in

an unwinnable struggle against free, became the

predominant resources for online music, movies, and

music videos. Revenues for the recorded music

industry, after a decade of free-fall, recovered from

their post-1999 plunge. https://riaa.medium.com/thegrokster-decision-6faa91247dbf. Put simply, the

Grokster decision ushered in a sea change in public

attitudes toward piracy of mass media—and opened a

desperately-needed space for legitimate services to

thrive.

The parallels between this case and Grokster are

inescapable. Just like the creative artists in Grokster,

photographers are hampered by circuit court

jurisprudence that threatens their ability to protect

themselves from pirates. And just as in Grokster, a

decision in favor of creators here could work a sea

change in public attitudes about the intrinsic value of

intellectual property. It is not exaggerating to say that

for those in the business of photography, a decision in

affirmance by this Court could become this

generation’s Grokster.

II. The Warhol Foundation’s Interpretation of

the Fair Use Doctrine Is Rooted in Deep

Misimpressions About the Nature of

Photography.

A. The

Foundation

Rehashes

LongDiscredited

Arguments

About

the

Creative Value of Portrait Photography.

1. Ansel Adams once said that “you don’t take a

photograph, you make it.” 7 This Court has long shared

the sentiment. Almost one hundred and fifty years

ago, the Court acknowledged the artful manner in

which Napoleon Sarony composed his famous portrait

of Oscar Wilde “entirely from his own original mental

conception . . . posing [Wilde] in front of the camera,

selecting and arranging the costume, draperies, and

other various accessories in said photograph,

arranging the subject so as to present graceful

outlines, arranging and disposing the light and shade,

[and] suggesting and evoking the desired expression.”

Quoted in Edward A. Wasserman, As If By Design: How

Creative Behaviors Really Evolve 190 (2021).

Burrow-Giles Lithographic Company Co. v. Sarony,

111 U.S. 53, 55 (1884). 8

While this Court was quick to appreciate the art

of photography, many other pillars of society were not.

Even after the Burrow-Giles decision, photography

labored in the shadows of other forms of expression—

“a handmaiden to science and art,” as English

photographer and writer Peter Henry Emerson once

put it. Teresa M. Bruce, In the Language of Pictures:

How Copyright Law Fails to Adequately Account for

Photography, 115 W. Va. L. Rev. 93, 101 n. 27 (2012).

Only with time did luminaries such as Sarony, Alfred

Stieglitz, Richard Avedon, Irving Penn, Annie

Leibovitz, and Ansel Adams—and let us not forget,

Andy Warhol himself—elevate photography to its

rightful place in the panoply of culture.

2. But the Andy Warhol Foundation’s opening

brief is a throwback to the nineteenth century. It is

bad enough that the Foundation celebrates Warhol’s

legacy of appropriating the work of photographers.

Worse, the Foundation also takes aim at the art form

itself—by devaluing, and even disparaging, the

creativity of photographers such as Goldsmith. The

following sentence is illustrative: “Goldsmith is not

the only (or even the first) photographer to shoot a

front-on photograph of Prince’s face and torso.” Pet.

Br. 16. The brief then follows with two full pages of

frontal images of Prince (leading with one from his

personal biographer, Allen Beaulieu). The implication

of this passage is clear: A photograph of Prince is just

8 The famous Sarony photograph adorns the cover of one of the

leading contemporary copyright law treatises. Jane C. Ginsburg

a photograph of Prince. And once you’ve seen one, the

Foundation appears to be saying, you’ve seen them

all. 9

The Foundation’s papers below are no better.

When this case was before the district court, the

Foundation tendered a declaration from Neil Printz,

the editor of The Andy Warhol Catalogue Raisonné.

Printz made it eminently clear that Warhol saw

celebrity portrait photographs as nothing more than

empty vessels for their underlying “commodity”:

Warhol’s movie star portraits were based on

publicity stills and pictures in fan magazines.

In this capacity, they were not portraits in the

traditional sense: they did not attempt to

capture the way a sitter really looked or to

reveal his or her inner character. The

photographs that Warhol selected were, in

fact, already images. Like a soup can, Marilyn

Monroe’s face in the studio still he selected for

his paintings was already a commodity; and

like a dollar bill, her face already functioned

as a sign.

J.A.157-58.

3. And that is where the Foundation’s argument

founders on the facts (to say nothing of the law). Begin

9 One person who decidedly would not think that “a photograph

of Prince is just a photograph of Prince” was Beaulieu, who

contended that a former collaborator absconded with over 5,000

of his images of the late musician and filed suit, albeit so far

unsuccessfully, to recover them. Beaulieu v. Stockwell et al., Civ.

No. 16-3586 DWF/HB (D. Minn. slip op. Dec. 7, 2018), appeal

pending, No. 21-3833 (CA8).

with the notion that the entire “commodity” within a

photograph is the star power of the subject. No serious

student of photography would believe that for a

moment. Irving Penn was heralded for his portraits of

celebrities, but the highest price paid at auction for a

print of one of Penn’s works was for a photograph of

two anonymous children in tattered clothes standing

bare

tile

floor

Cuzco,

Peru.

https://www.christies.com/en/lot/lot-5056795. Robert

Mapplethorpe’s heralded (and controversial) “Man in

Polyester Suit” brought in nearly $500,000 at an

auction in 2015. N.Y. Times, Oct. 9, 2015, p. C2. And

the name of the green-eyed Afghan girl who graced

what is perhaps the best-known National Geographic

cover of our time was not even known to her

photographer, Steve McCurry, until he tracked her

down many years later. https://www.national

geographic.com/magazine/article/afghan-girlrevealed.

And even where a celebrity is the focus of a

photograph, it is only the photographer’s artistry that

brings the portrait to life. Any original photograph is

entitled to copyright protection, even the most casual

point-and-shoot image. Jewelers' Circular Pub. Co. v.

Keystone Pub. Co., 274 F. 932, 934 (S.D.N.Y. 1921)

(Hand, J.) (subsequent history omitted). But in

challenging the creative contribution of Goldsmith’s

Prince photograph, the Foundation has chosen an

unusual target indeed. Counsel for Goldsmith has

briefly described (in their limited pages available)

some of the creative decisions that Goldsmith

exercised during her photography session with Prince,

including her use of lighting, her choice of lens, and

her application of eyeshadow and lip gloss. Resp. Br.

7-8. Sedlik, who interviewed Goldsmith about the

photograph in 2018, can attest to the full spectrum of

Goldsmith’s original expression in the photograph—

including the creative decisions that she made about

lens focal lengths (she used two different lens focal

lengths, 85mm and 105mm), depth of field, focal point,

film selection, contrast, color/tone, composition, line,

form, texture, lighting (type, angle, distance, and

modifiers), background, subject direction, and

selection of the “decisive moment” that brought her

other creative decisions to life.

4. Sedlik’s own experience as a photographer also

illustrates the point. As noted above, Sedlik authored

one of the most widely known images of Miles Davis

that has ever been created. But the photograph was

no happenstance. Sedlik invested more than a year of

creative development—before, during, and after the

photo session—in order to imbue that photograph

with the expressive elements he desired. Sedlik had

proposed a low-key, moody photograph. But he was

given a session at noon on a beach—a photographer’s

nightmare. As always, Sedlik was determined to make

the most of his opportunity. He designed a custom 400

square foot studio in his lot and transported it, piece

by piece, to the location. But that was only the stage

for Sedlik’s creative process.

Lighting, as with all of Sedlik’s photographs,

played a central role in this photography session. The

roof of the outdoor studio was a 20’ x 20’ white

sailcloth suspended in a metal frame. Sedlik covered

the entire sailcloth with black opaque fabric, thus

blocking the sunlight. With an assistant standing in

for Davis at a position that Sedlik selected, Sedlik

then created a small, carefully shaped opening in the

black cloth to sculpt Davis's face and body with a shaft

of light emanating from directly over his head. He also

draped the sides of the custom studio with black

fabric, in order to deepen and enhance the quality of

the shadows in the portrait. He placed black squares

of fabric at the left and right sides of the stool on which

Davis would sit, in order to modulate the transitions

he desired—in some cases more smooth, in others

more abrupt—between highlights and shadows on

Davis's face. He positioned reflectors behind his

camera, choosing just the right size, distance and

angle to reflect diffused light into the makeshift studio

and to create white “catchlights” in Davis' eyes. And

he covered the ground with black cloth in order to

control the reflection of sunlight and to maintain the

quality of the range of tones he sought.

Sedlik also paid exacting attention during the

photo session to directing Davis’ pose. To realize his

vision of Davis’ physical appearance, he gave Davis

suggestions about how to tilt his head, where to

position his shoulders and arms, and in which

direction to look. He asked Davis to put his finger to

his lips, symbolizing the jazz legend’s masterful use of

silent negative space—the pauses between his notes—

in his performances. On several occasions he

approached Davis and physically adjusted the

position of his fingers to achieve the visual effect of a

series of cascading musical notes. And as a final touch,

he suggested that Davis lower and raise his hand and

simultaneously tense his facial muscles, rendering his

cheeks and the veins in his face in an intensity of

expression to contrast with the symbolic pose.

The examples below represent just a few of the

many images Sedlik produced during one of his photo

sessions with Miles Davis. Each is based on a sketch

made by Sedlik in advance of the session, and each

reveals a distinctive version of Sedlik’s vision. But

only one—that shown at the bottom right—best

captured the perfect combination of light, shade,

posture, intensity, focus, and the dozens of other

visual elements that Sedlik painstakingly rendered.

That portrait has become an iconic photograph of the

legend and a favorite among art collectors and

licensees alike.

B. The Foundation Wrongly Suggests That

a Photograph’s Protection Extends No

Further Than Its Initial Meaning or

Purpose.

The Warhol Foundation makes another

confounding error in its brief. The Foundation

suggests, under its misreading of Campbell, that one

can appropriate a photograph merely by giving it a

new meaning or message. That is wrong as a matter

of law. But it also assumes a factual impossibility. As

Ansel Adams once said, “There are always two people

in every picture: the photographer and the viewer.”

N.Y. Times, Nov. 12, 1976, p. C20. No photograph can

be cabined to a single meaning or message. No visual

art can be so cabined. Art, like beauty—or so we have

been informed by cliché since grade school—is in the

eye of the beholder. It is nonsensical to suggest

otherwise.

That is as true for photography as it is for any

other form of art. As one of the most prominent

writers of the twentieth century has explained:

Any photograph has multiple meanings;

indeed, to see something in the form of a

photograph is to encounter a potential object

of fascination. The ultimate wisdom of the

photographic image is to say: “There is the

surface. Now think—or rather feel, intuit —

what is beyond it, what the reality must be

like if it looks this way.” Photographs, which

cannot themselves explain anything, are

inexhaustible invitations to deduction,

speculation, and fantasy.

Sontag, On Photography 24.

The widely cited passage above is echoed by any

number of photographers. Asked by Interview (the

magazine Warhol founded) what he wanted people to

take away from his photographs, acclaimed

photographer Alec Soth responded: “The reason I

often say, for me, photography is analogous to poetry,

for my kind of work more so than journalism, is

because it’s so open to interpretation. And I’m very

happy having different interpretations of it, so I don’t

have

agenda

push

all.”

https://www.interviewmagazine.com/art/alec-soth-ph

otography. And Allan Sekula, the influential L.A.based photographer, critic, and educator who once

earned a grant from The Warhol Foundation, 10

roundly rejected the notion that a photograph is “an

utterance of some sort, that it carries, or is, a

message.” Instead, he has explained:

the photograph is an “incomplete” utterance,

a message that depends on some external

matrix of conditions and presuppositions for

its readability. That is, the meaning of any

photographic message is necessarily context

determined.

Sekula, On the Invention of Photographic Meaning,

13:5 Artforum 37 (Jan. 1975).

Sedlik’s own experience bears this out. He has

licensed his photographs for use in billboards,

magazine covers, brochures, shirts, calendars, mugs,

bus benches, television shows, greeting cards,

documentary films, PowerPoint presentations,

statues, subway ads, artist reference, book covers,

posters, museum displays, album covers, press

releases, annual reports, social media posts, website

use, digital display ads, television commercials,

product packaging, point-of-purchase displays, direct

mail promotions, tattoos, and all manner of other

media. Needless to say, the message a viewer will take

from a boardroom PowerPoint and a novelty mug will

10 https://warholfoundation.org/grants/archive/theater-of-operat

ions-the-gulf-wars-1991-2011/. The Foundation’s grant to

Sekula, it should be noted, is just one example of the

extraordinarily important work that the Foundation has done to

support creative artists—including photographers—since its

beginnings. That is one reason why it is especially disheartening

to see the Foundation in such an aggressive posture today with

respect to the art of photography.

be entirely irreconcilable. If every one of those uses

could be made license-free, few photographers could

afford to create new works.

And the licenses that Sedlik has chosen not to

grant are just as instructive as those he has. In

response to each license request he receives, Sedlik

asks detailed questions about the nature and message

of the work in which the photograph will be used. If

he does not approve of the message, he will not

approve the license. In Seltzer, for example, a rock

band used an illustration of a screaming face for an

anti-religious message during the performance of one

of its songs. 725 F.3d at 1177. If the band had asked

for his permission to use one of his photographs of B.B.

King or Miles Davis as part of that backdrop, Sedlik

(out of respect for his subjects) would never have

approved such a use. That is—or at least should be—

his right as an artist.

III. Appropriation Artists Can Readily Obtain

Artist

Reference

Licenses

from

Photographers.

There will not be the remotest “chilling effect” on

artists if the Court affirms the decision below. Pet. Br.

56. The specialized kind of license that would allow a

creative artist to use a photograph in a derivative

work is called an “artist reference license.” This kind

of license has been in broad use for decades. Andy

Warhol was even the beneficiary of one, in 1984, for

the very photograph he later pirated. It is not hard to

obtain.

The practice of licensing photographs for artist

reference purposes is so ubiquitous that the PLUS

Coalition—the non-profit standards body for image

licensing that Sedlik co-founded—developed a

standard definition of the term. 11 Photographers and

stock photography agencies are nearly always willing

to grant a license for the use of a photograph for

reference purposes in creating a derivative work. Most

rights holders and their agents welcome such

inquiries. And why would they not? For most

photographers, derivative usage licenses are an

indispensable source of income.

And it is typically easy to identify the copyright

owner of a photograph. Anyone can use the free

“reverse image search” on Google Images (among

many options) to see where a photograph is published.

From there it is a simple matter to identify either the

photographer’s website (complete with contact

information) or a stock photo website serving as an

authorized licensor for that photograph—or perhaps

even a copy of that photograph with attribution

information identifying the photographer. Google has

made this even easier in the past year by launching a

“licensable badge” option. Under this tool, which

Google developed in part in collaboration with Sedlik’s

PLUS Coalition, photographers can direct Google to

add a “Licensable” badge directly on top of their

images within search results. A user who clicks that

badge will be taken directly to that photographer’s

licensing information page.

Definitions in the PLUS Picture Licensing Glossary

(http://www.usePLUS.com/useplus/glossary.asp) are developed

and approved by representatives of all communities engaged in

creating, distributing, using or preserving visual artworks. See

also http://www.PLUS.org.

And in the rare instance in which web-based

searches fail to identify the copyright owner of a

photograph, it is a simple matter to contact one of the

photography trade associations that, as a free public

service, routinely help identify authorized licensors

for specific photographs. Examples include American

Society

Media

Photographers,

American

Photographic Artists, Professional Photographers of

America, National Press Photographers Association,

North American Nature Photography Association,

and Digital Media Licensing Association. (The nonprofit PLUS Coalition also provides a free, global

registry of contact information for photographers and

rights holders.) In short: if a visual artist does not

have an artist reference license, that artist probably

did not want one in the first place.

CONCLUSION

The judgment of the Second Circuit should be

affirmed.

Respectfully submitted,

Matthew Hersh

Counsel Of Record

99 Blair Alley SW #1155

Washington, DC 20024

(202) 253-2514

matt@matthewhersh.com

Counsel for Amicus Curiae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.