honor has made please the court i'm thomas hentoff with williams and connelly i'm here with my colleague kate meeks at the virtual counsel table we represent photographer when goldsmith and her company lynn goldsmith ltd they are the copyright owner declaratory judgment defendants and counter claim plaintiffs in the appellants here the issue on this appeal is whether the district court erred by granting summary judgment to the andy warhol foundation on its fair use defense to win goldsmiths claim of copyright infringement for copying or photographic portrait of the music superstar prince andy warhol copied the photograph in a series of silkscreens and other works and the foundation's use of the photograph included licensing one of the war for the editorial use of appearing on the cover of a special vanity fair edition in two thousand and sixteen commemorating prince's life  court's review of the grant of summary judgment is to know i would like to focus this morning on two aspects of our appeal mr head off mass just one of i hope very quick question will quickly answer question  you stress this is of course a grant of summary judgment that we're considering but are you i don't i'm not sure you you saying that there should be a trial because there are to stupid issues of fact or are you just saying the this is really there are the facts are what they are and the fair use is really a question of law and you should win rather than they should your honor i think that this court could direct summary judgment in favor of ms goldsmith as courts in the nd circuit have done i don't believe that there are disputed issues of material fact that require a trial however we here as the party that lost on summary judgment and so all inferences on the undisputed facts you know should be construed in our favor and one thing judge lynch i would like to note is that in three of the leading fair use cases in the supreme court in the nd circuit the court didn't decide fair use at the appellate level the court remanded the to the district court to apply the law correctly didn't say go to trial but said you should have value weight the factors based upon the law as we have it ok that's helpful that answers my question and i don't take up more of your time with that thank you thank you judge so st in analyzing fair use factor won the district court committed legal error by basing its ruling on andy warhol transformation of ms goldsmith photographed by his adding a new expression and employing new a statics but the court didn't consider whether those qualities analysis by holding that the distinctiveness of andy warhol style was an important part of the transformative use analysis it is not and this ruling in particular is part of what caused two leading copyright scholars jayne ginsburg and robert patry to criticize the ruling as being an error second in analyzing fair use factor for the disc to court committed multiple legal errors the one of like to focus on right now is the court failed to consider ms goldsmith's unrebutted evidence that other prints photographs that she created and images in the andy warhol series actually occupied the same editorial license market newsweek magazine for i believe a one thousand dollars each but we've set it forth in our opening brief he warhol foundation and two thousand and thirteen i believe licensed one of the warhol images to a commemoration of vanity fair's th anniversary and that was for a license with a comparable amount of money you know factor for requires analysis of market substitution for you know reasonable or likely you know markets and all those these are different photographs of that the magazine editor toral use market is a reasonable market for her to exploit with mr head i'm interested in this point and i hear your point is that with this case is ultimately about is the market for a licensing and for example i know that you are not asking i think you're not asking i guess i can confirm this with you for the war whole images to be destroyed or to be turned over to you or something of that sort in terms of the market for sale of the originals so to speak one of the two a collector an art collector of the war holes of the goldsmith  might think that those occupy separate spaces in the market with respect to the licensing i think you have a good point that there's something similar going on but isn't copyright like unitary i mean if you were here asking for something more  would you be entitled so that if we say that there was an infringement here what does that do to the status of the warhol images in some other space then the licensing market thank you for the questions judge for most of all that's correct this goldsmith is not seeking the description of any warhol art anything hanging in the museum and that was an interesting issue that actually came up in the kerry case because they're the district court ruled that the richard prince paintings need to be impounded and when the when the court of appeals in carriers sent the case back down they said it you know if the plaintiff wins on the five works that are that injunctive relief would be decided separately is that your point completely correct your honor we're here talking about fair use on a summary judgment record and in judge lance you said copyright is is unitary i would say copyright a lot of things but you going to terry is not one of them it's unitary as you can get and in fact when you're talking about whether a particular use is a fair use the court needs to consider the use and in the same kind of work  can be employed for different uses so in a good example of it is judge jacobs opinion in the d in the fox news network or says t v i's case where t v eyes you know copied fox programming and made it available in all sorts of different ways and so the t v i's opinion said we have to look at the different functions differently to determine whether one might be a fair use and one might not be of fair use so here hanging a million dollar painting up in the pittsburgh museum of art very different from after princes passed away or in commemoration of prince's life going into the  with other people who have images of prince and occupying that market and one thing i want to say that i'm over time so to this but just to conclude on that issue look when a great superstar like prince passes away and a major magazine like vanity fair says let's have a commemorative issue let's put something on the cover it's great to put a warhol on it but it doesn't have to be a warhol it's not going to be you know marilyn monroe or elizabeth taylor or a soup can it's going to be an image or prince and that is a specific example of the broad editorial market that the record a court in a state that smith versus graham and in judge sullivan's decision and he was vs benjamin's both described the tests in this case the district courts faithfully apply that test to the undisputed facts and  summary judgment sound fair use that decision is comfortably within settled law and does not require the court to expand the test or test the boundaries of any of its decisions and fair use or copyright law that may be right that may be right that this isn't about exchanging the test it's about whether the court applied it correctly right and yes it did your honor it's not asking a purpose can i ask you have purpose so how would you articulate  where in croons the purpose was in creating the art to focus on the object itself and the experience that the public had with the objects depicted in the as not the that is not the purpose and that is not the question here you look at the purpose of andy warhol when he created the underlying our in the purpose of andy warhol it's rooted in the record it and it's stated i decision in rocker's as well is that more holes were the purpose of it is doing corporation images from popular society or of celebrities marilyn monroe elvis presley muhammad ali for the purpose of commenting on consumer culture and exploring the relationship between celebrity color i have trouble with i have trouble with that as as a way of approaching the purpose question let me take an example  late tony morrison wrote a number of novels she had what purpose is she had in creating those works and she may have intended to create a certain aesthetic effect i'm a filmmaker and i decide i want to make a film and i quite consciously want to have a film that signets term mental movie that emphasizes certain aspects of one of those novels and deemphasize as others what i'm really interested in is the creative process of making a movie out of a novel and wanting to do it in a way that no one has ever done it before isn't it still a derivative work and done i have to pay for the rights to the novel before i do that and wouldn't you or your approach to this say anytime an artist is transforming something into a different medium and it and the playing his or her own creative take on the underlying that cereal that's a transformative purpose you know that's not  offering the example you gave is a classic example of a derivative work transferring one story into a different media and nothing more that is not what happened here on two levels with respect to purpose and this is exactly how this court framed in the blind versus coons case you look at the purpose quote unquote in using glanges image and you compare them to the purpose in blanchard's goals when creating it that's exactly the the record and it's a critical look at the record on the well but wait wait when he created this he did two things st of all he was being commissioned to create an image for an article in vanity fair about prints not about andy warhol or about celebrity culture and he licensed this particular image in order to copy it as an artist's reference to creating a portrait just as instead of going to a portrait of you i could ask you to sit for it or you could say i'm too busy practicing law but i have a photograph here of me and you can use that to create the portrait so it seems to me he's doing a portrait of friends for vanity fair in his own inimitable style or his own image of style as the case may be and he's taking the this particular image paying for the right to do it for this narrow project because it is the same thing it's an illustration of friends that happens to be a different artistic take or the article you're on are two points the st is a factual one about the license there is no evidence in the record that warhol entered into a license agreement concerning this work was aware of when goldsmith when he got this image was aware that it was a photograph b a particular amount for this particular car there is no evidence whatsoever that we're always aware of the license component and goldsmith when this was made up but vanity fair licensed it and that was the purpose of the license was to give it to prints as an artist reference that's what it says in the contract right bennett he fair it is certainly bound by its license agreement with ultimate but vanity fair didn't license it to make a replica of the goldsmith it licensed the work so warhol could make a warhol and he could use that image for the same purpose that he used all of the other images of celebrities of campbell soups for example and when he did it when he used the image of prince now get to the different expression meaning in message in just a moment because that's critical as well is as you know campbell said purpose or character not purpose and character must be distinct but when he actually created this work with the purpose of this photograph it was distinct from what goldsmith admitted was her purpose when creating the image itself when you miss it i mean how narrowly should we draw  and message along it where you should draw the purpose line exactly as you did in blanche versus croons which is you look at the purpose of using the image in the warhol and you compare it to the purpose of  goldsmith when she created it when if you can look at it on two different levels number one let's say the court found that warhol used this image for the purpose of putting it in an article or adjacent to an article in vanity fair for the purpose of commenting in connection with that article about her prince's fame the title of the article was horrible pain that is a distinct purpose if you accept that  and decides to take the war home image of the of the prince a portrait and paint highlights and blue and green over it and license it with the purpose of showing underlying purpose in that particular example in this that is different from what warhol did on a number of different levels but all except by pathetically the purpose of goldsmith doing that if she testifies i was design i was created using this image for the purpose of commenting on appropriation are the limits of appropriation of art etc then she may have a distinct purpose the question however will then need to turn as a district court did because this is not a one prong analysis you have to look at the expression what is the protectable element of the warhol whether protectable elements versus the goldsmith what is the meaning what is the message you have to look at whether she's been missing a consistent this is the seems to be a very unstable basis for deciding whether one needs a license because keep in mind that often the image is licensed by a magazine or by a rep site or a newspaper and to have to require them to figure out what people's aesthetic intention was which no one is offering before they can confidently predict anything is is true is is to render unstable the whole system of a licens submit your honor we rooted both the arguments in this appeal and below in the standard from campbell now is that standard overall unstable egypt balancing of factors that are unique in each individual case certainly they do lead to balancing in each individual case and so the question here is whether are based on this record there is a distinct purpose articulated between the parties goldsmith did not dispute that the purpose of her photography is a real effort quote unquote to communicate the uniqueness of people and their admitted that in the actual meaning and message of her photograph she was communicating a message about prints and with you access or will you concede that those expressive values subsist and remain in in the one whole image no your honor would not so those are purpose message and meaning which are entirely distinct compared to the warhol now if you look at expressive expression because as we know this is rooted in the base to simple of the law that you cannot copy but only the way in which it's expressed in the world testified that the coated rat derived from her perception of prince being in touch with the male part of themself in the female part well you know i hear you saying this mr nichols but it still gives me pause because it seems to undermine every possible opportunity to retain copyright in a derivative work if i make a film of a novel i'm totally transforming it's only going to take two hours to  movie it's going to it women ate half the episodes in the book it may put a very different slant on it it's certainly a very different kind of creative expression i'm dealing with the actors and the film the cinema ta grapher  the lighting the scenic design i'm creating all kinds of things that the author maybe doesn't like didn't want is gives a completely different impression of the story in the characters than was there and  surely i'm making a totally new work that is until recognizable except for the basic plot and some of the characters from the novel here this picture goldsmith did other photos other people did other photos of prince in the same time frame and when you look at do a line up and you compare all of those and you put the wall next to it you know immediately which one he used it's this one it's it's much closer to the original then any film i've ever seen of a novel has been to the novel so why doesn't this destroy the whole concept if you say well if the artist had a new purpose to make a movie to start with which the authored deliberately didn't do oh why doesn't that work it doesn't work because what you describe is that the trance lation that say need thing and message from the original novel into a different medium of the mov but it's not has a different message i actually you know think is a great story but the author kind of got it wrong in terms of what the morals to take a simplistic term of the story is and i  approach in such a way that the viewer of the movie comes away liking the central character rather than the staining him or her or vice versa and isn't that the kind of thing you're talking about here when you say that goldsmith  separate purpose from character in terms of the purpose we've already discussed that in terms of the character that expression meaning or message what we are now talking about is not the meaning or message that's the goldsmith's undisputed testimony of what her meaning in messages verses were all were talking about expression the you're saying in essence that warhol were asking me a question didn't warhol capture the heart of the essence of the photograph the answer's no let me tell you why i'm in the supreme court's broke i was decision and then judge gorsuch writing for the th circuit in the mesh works case the court made it clear that when the origin of the object is not owing to the photographer and that's particularly true with cases in people you need to and then judge course such as words filter out the object from the assessment of what's protectable if you do that here because you shading the contrast the overall death of feel it in the pose itself the unique as if there is one and that those a decide whether those elements fund their way into the war or not whether the warhol looks like prince and so does goldsmith because you do not have as a photographer a copyright in the outline and when you look carefully just as the district court did  warhol you will not see the same lighting you will not see the same shading you will not see the same color you will not see the same color balance you will not see the same contrast you will not see the depth of i think w by the description of purpose by the parties this court said said no to that in the carrier decision it's certainly relevant but you also look at the works and look at the entire record to decide purpose also what i would say is what mr nichols was describing as its purpose is a viewpoint or expression or something or something else it's not a transformative purpose which ever since the supreme court you know issued the supersede the secondary use supersede that the st use and this court in google books says well you know traditionally is there commentary right is the new work transforming the original work in some way that has a transformative purpose or character so the classic version is a parody where you're commenting in some way on the original work than with the  internet and all the advances in technology google books is an excellent example as is t v eyes where new uses are made of the works that you can provide and so that the secondary user can provide information about work then we see him carry you a rd category which is really changing the original work so much and using it in a new piece of art that it's being used as a raw material to express something fundamentally different while in this case applying campbell vs a cover of those there is none of this and and we see that because the district court didn't consider the transformative purpose the district court went right to newest that iks new message something that's distinctive and and there was it's in the record the andy warhol silkscreens are not commenting or parroting the lynne goldsmith photograph they're not providing information about the photograph and they're certainly not using the photograph as raw materials for something else as as one of one of your honor's said you can look at it you know exactly what the photo is we absolutely our emphasis is absolutely not on the pose in the outline we've been very clear in our brief about all the different lighting and other decisions that absolutely still shine through when you look at particularly the r inch prince image that was employed  by that was on the vanity fair cover i will conclude by saying that if the district court ruling stands that are really creative and a really distinctive secondary artist can forgo paying for a or getting permission for driven to use then people like lynn goldsmith who make their living by creating visual and other arts are at the mercy of artists who want to be creative in a different way and they make their living people like when goldsmith make their living from licensing their works and it opens it up for there just to be a free buffet for someone who might be distinctive or so we urge the court to reverse the district court decision thank you both very well argued we will reserve decision