Author: Washington Journal of Law, Technology & Arts

The (Purple) Reign of Fair Use: Certiorari Granted for Warhol’s Portrait of Prince

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OXFORD, ENGLAND – FEBRUARY 02: A member of staff and her child walk next to a series of artworks by Andy Warhol at the Ashmolean Museum on February 2, 2016 in Oxford, England. The work forms part of a new exhibition entitled ‘Andy Warhol: Works from the Hall Collection’. Featuring over 100 unseen Warhol’s, it is due to will run from February 4 to May 15, 2016. (Photo by Carl Court/Getty Images)

By: Erika Hammer

Amongst several IP-focused cases this year having requested review by the Supreme Court, the high court has recently granted certiorari for a case involving copyright, fair use, and some famous individuals: artist Andy Warhol and musician Prince. The case focuses on whether a work is “transformative” under fair use, a major defense to copyright infringement. Notably, fair use is considered to be one of the most important exceptions to copyright law’s general monopoly grant of intelelctual property rights to authors of original works, as well as a major cornerstone for promoting artistic expression, access to knowledge, and dissemination of ideas. 

The case, Andy Warhol Foundation v. Goldsmith, arises from a set of portraits created by Andy Warhol, whose pieces often draw from preexisting works (e.g., a Marilyn Monroe photograph or a can of Campbell’s soup). The specific pieces at issue are portraits of Prince based on a Vanity Fair photograph taken by Lynn Goldsmith. The petition for certiorari describes how Warhol, via silkscreen printing, “cropped the image to remove Prince’s torso, resized it, altered the angle of Prince’s face, and changed tones, lighting, and detail” as well as “added layers of bright and unnatural colors, conspicuous hand-drawn outlines and line screens, and stark black shading that exaggerated Prince’s features.” 

Post-litigation, the district court granted the Andy Warhol Foundation summary judgment in favor of its fair use defense, deeming the use “transformative” for communicating a different meaning and message from the original Goldsmith work. However, the Second Circuit reversed, despite acknowledging that the two artists’ pieces represented different messages. It stated, “while the cumulative effect of those alterations may change the Goldsmith Photograph in ways that give a different impression of its subject, the Goldsmith Photograph remains the recognizable foundation upon which the Prince Series is built.” 

As the Andy Warhol Foundation argued in its petition for certiorari, the Second Circuit’s analysis focuses on the visual resemblances between the works. The Foundation further opines that this decision is creating a circuit split and highlights that the Ninth Circuit has held that a work of art is “transformative” when it portrays a different meaning or message from the original source. 

This case is significant not only because of the famous individuals involved, but also because it involves one of the most crucial doctrines in modern copyright law. Fair use, which is set forth in 17 U.S.C § 107, is the most wide-ranging limitation on copyright protection that attempts to promote the expression of artistic works. Fair use is also grounded in the goals of promoting common culture and enabling technological advancement. As such, highly creative works like Andy Warhol’s would appear to be exactly the kind of follow-on creativity that fair use is intended to not only protect, but to promote. 

Even if a work is highly creative, it must be examined under four factors used in determining whether there is a qualified fair use defense. These four factors include: (1) the purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit, educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market. The Second Circuit found that each of these factors weighed in favor of Goldsmith.

Under the first factor, the more transformative a use is, the more likely said use is deemed to be fair. A foundational fair use case, Campbell v. Acuff Rose, emphasized transformative use as a critical factor. Transformative use is often seen as adding new, creative expression or changing the purpose or character of the copyrighted work. The more transformative a use is, the less significant the other fair use factors will be in the analysis. Typically, if a court finds transformative use under the first factor, that factor tends to strongly influence the inquiry into the rest of the fair use factors. 

With transformative use being such a crucial factor in fair use, which is of itself a crucial doctrine in copyright law, it comes as no surprise that the Supreme Court granted certiorari in this case. Despite the fact that Andy Warhol’s artwork appears to transform Prince’s depiction “from a vulnerable, uncomfortable person to an iconic, larger-than-life figure,” as described by the district court, this paradigm of the transformative nature of the work did not pass muster in the Second Circuit. 

In contrast, other prior Second Circuit cases that have been seminal in the “transformative” aspect of fair use have allowed use of the defense even when the original work is still a “recognizable foundation” to the subsequent piece at issue. Graham v. Dorling Kindersley held that a Grateful Dead biography that used copyrighted, original posters was fair use because they served a different purpose, despite the entirety of the original work being used in the follow-on biography. However, in opposition to certiorari, Goldsmith argues that the Warhol silkscreens shared the same purpose as Goldsmith’s copyrighted photograph, as well as the same essential artistic elements.

How the Supreme Court comes out on this decision – whether a different message or meaning is sufficient for transformation under fair use despite facial similarities – will be very important in copyright jurisprudence and the scope of fair use. 

Navigating the Dark Forest: Data Breach in the Post-Information Age

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By: Charles Simon

In 1984, the credit histories of ninety million people were exposed by theft of a numerical passcode. The code was meant to be dialed through a “teletype credit terminal” located in a Sears department store. The stolen password was posted online to a bulletin board where it existed for “at least a month” before the security breach was even noticed. The New York Times helpfully informed readers that such bulletin boards were “computer file[s] accessible to subscribers by phone.” How did the anonymous hacker crack this code? Well, the password had been handwritten onto a notepad and left in a public space by a Sears employee who found the digits too troublesome to memorize.

Interestingly, while a legal commentator from the ABA had theories about the likely legal harms to consumers and possible liability faced by the credit reporting agency from the hack, simply obtaining unauthorized access to a confidential information system wasn’t yet a crime on its own terms. Legal recourse against the hacker, had they had ever been caught, would have been uncertain given that no mail-order purchases were shown to use consumer data from the Sears/TRW system breach. Two years later, Congress would amend existing law to create the Computer Fraud and Abuse Act of 1986 formalizing the legal harm of cybersecurity breaches, but during this period hacking was generally still considered a hobbyist’s prank.

We’ve come a long way since that time. In 2020, a study funded by IBM Security estimated that the “average cost” of a data breach was $3.86 million. That number is inflated by the largest breaches, but limiting our inquiry to ‘just’ the $178,000 average figure suffered by small- and medium-sized company breaches shows that even smaller hacks can be crippling to business. Breaches of information today can result in serious physical consequences like the loss of industrial controls which govern power grids and automated factories. The healthcare system’s volumes of sensitive patient information make hospitals, insurance providers, and non-profits in the industry extremely attractive targets. Law firms are prime targets for data breach, with sensitive client personal information and litigation documents making for a lucrative prize.

Since 2015, Washington state’s data breach notification laws have required businesses, individuals, and public agencies to notify any resident who is “at risk of harm” because of a breach of personal information. This requirement of notice to customers or citizens affected by an organization’s data breach is mostly accepted among states, but as with other privacy-related rights in the US legal system, there is a patchy history of vindicating plaintiff rights under such laws. 

The ruling on a motion to dismiss in a breach of the Target corporate customer database shows a shift in attitudes towards recognizing concrete harms. A broad class of plaintiffs from across the US drew from a patchwork of state notice laws—some of them lacking direct consumer protection provisions or private rights of action under their state law—to argue that Target’s failure to provide prompt notice of the theft of financial data caused harms. What might have once been considered shaky legal ground for a consumer class action claim proved stable enough for a Minnesota federal court to reject the motion to dismiss. The resulting settlement with 47 state attorneys general was a record-setting milestone in cybersecurity business liability.Prompt notice to those affected by a data breach alone is not enough. Many modern statutes now implement standards of care for data security, and may soon begin standardizing other features such as retention and collection limitations (perhaps taking cues from the EU’s General Data Privacy Regulation). Legal scrutiny is certain to intensify as the financial harms—and less tangible harms to the increasingly-online lives—of citizens mount. The proliferation of cyber liability insurance indicates that many businesses see an inevitability to this field of litigation, which is sure to cause development of the law. In this environment, public and private sector lawyers in a broad array of fields must be cognizant of the legal harms that can arise, their organization’s recourses, and the state and federal law they operate under.

Cerebral Exposes Cracks in Mental Health Apps

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By: Smitha Gundavajhala

Consumers are increasingly using mental health apps to get their needs met. It can be challenging to find a clinician, navigate the triage process, and wait weeks just to be seen for a mental health condition. Apps such as Calm, Better Help, and Cerebral are helping patients get everything from meditations to diagnoses. These apps also help mitigate the stigma around mental health conditions, making it easier for individuals to engage with their mental health that would not otherwise do so. 

However, these apps run into problems because they are commercial products, not traditional clinical services. Many apps brand themselves as “wellness apps” instead of health apps to avoid having to seek FDA approval. They also undergo little rigorous clinical testing — a meta-review of 145 studies of mental health apps showed that there was little evidence of efficacy among most mental health apps. These services provide little clinical value, but one app actively caused clinical harm.

Cerebral is a newer app targeted toward younger users. The service claims to provide help for “anxiety, depression, insomnia, and ADHD.” It is marketed as a simple, accessible, one-stop shop for individuals to get diagnoses, care counseling, and prescriptions. However, one of Cerebral’s former executives, Matthew Truebe, is suing the company for over prescribing medications for Attention Deficit Hyperactivity Disorder (ADHD).

Studies have shown that most people abandon a mental health app within a few weeks — Cerebral is no exception. Truebe, Cerebral’s former Vice President of Product and Engineering, alleged that Cerebral planned to increase customer retention by prescribing stimulants to 100% of its ADHD patients. According to the complaint filed on April 27, CEO Kyle Robertson asked Cerebral employees to track the retention rates of ADHD patients who were being prescribed stimulants by Cerebral versus those who were not. Robertson then asked employees to find ways to prescribe stimulants to more ADHD patients to increase retention.

Under the Controlled Substances Act, clinicians can generally prescribe controlled substances online only after an in-person medical evaluation. However, this requirement has been relaxed since the former U.S. Secretary of Health and Human Services, Alex Azar, declared a public health emergency for COVID-19 on January 31, 2020. This emergency allowed Cerebral clinicians to prescribe stimulants to users with no face-to-face evaluation. While it can normally take weeks (or months) for clinicians to accurately understand a patient’s mental health condition, surrounding factors, and interacting health conditions before making a diagnosis or prescribing medication, clinicians working at Cerebral were expected to provide a prescription at the end of a 30-minute video call. Because of Robertson’s instructions, employees at Cerebral said they felt that Cerebral pressured clinicians to prescribe stimulants.

What’s more, ADHD medications such as Adderall are stimulants and are highly addictive. Cerebral’s plan to improve customer retention fed into the addiction. Truebe conducted his own analysis on August 5, 2021, and found around 2,000 duplicate shipping addresses in the patient database. The existence of these duplicate shipping addresses raised a red flag that some patients may have been attempting to get access to more medication than they were prescribed. 

The Cerebral case raises issues related to clinician liability — whether clinicians will be held liable for over-prescribing ADHD medication or whether Cerebral will be held accountable for instructing employees and pressuring clinicians to increase prescriptions. For now, Cerebral denies all allegations. However, this lawsuit could have repercussions for other mental health apps, especially those that allow consumers to obtain prescriptions remotely. While the federal public health emergency will not last forever, remote prescriptions may still continue because of the ease of access for consumers. However, Cerebral illustrates the need for serious guardrails before remote prescription becomes a permanent practice.

American Museums: Rightful Heirs or Pretenders to the Throne?

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Photo by Pixabay on Pexels.com

By: Anna Long

It is essentially undisputed that thousands of artworks and artifacts have been stolen or looted throughout history as the result of outright theft, colonial conquest, and war. Today, a number of these stolen works sit behind glass in museums, the plaques that detail their origins conveniently leaving out exactly how each piece ended up in American institutions. And while the last handful of years has seen a movement towards the repatriation of stolen artworks and artifacts, actual return of that artwork is the exception rather than the rule. First, museums are only compelled to repatriate the art if there is proof it was stolen or looted. And second, in laying claim to particular artworks and artifacts, museums reaffirm the American savior identity rooted in cultural appropriation. Prioritizing repatriation is a necessary step towards the decolonization of the art trade. Relaxing the mens rea requirement of the National Stolen Property Act of 1934 is the best tool for effecting this repatriation.

While the expectation that stolen art should be repatriated is gaining acceptance, the museum community has yet to come to a consensus on its appropriateness and efficacy. Some experts assert that the artworks and artifacts should stay wherever they are currently placed, regardless of national origin or cultural importance. This argument is usually centered on the claim that American museums can better manage and protect the art. However, the fact that the American market encourages continued looting and, correspondingly, further damage calls that claim into question. Other scholars advocate for the return of the art to its country of origin or, if possible, the original owner. This sentiment rests on the concept that cultural property belongs where it originated, especially if it was forcibly removed. This debate does not change the reality that museums are only required to repatriate the art if it is proven to be stolen or looted. Clear provenance, documenting the piece’s history, usually means the art stays where it is. Documentation of ownership going back decades should not necessarily absolve museums of responsibility now. 

Ancient Greek art and artifacts embody the implications of continued American control over cultural property and the importance of repatriation. These artifacts, spread through museums across the country, are a good way to conceptualize how a claim to cultural identity can be expressed through control of material objects. 

“For reasons rooted in everything from Hollywood marketing to Cold War politics, most Americans, regardless of their level of formal education, have a sense that democracy was invented in Athens, Aphrodite was a literal sex goddess,… and (Eric Bana’s) Hector was no match for (Brad Pitt’s) Achilles in the Trojan War.” 

Stretching from democracy, a fundamental building block of American identity, to Brad Pitt and Eric Bana, who are also arguably central to that identity, Greek myth and imagery exist in all aspects of American media. The artifacts that line our museums are the physical manifestation of that imagery.  In appropriating the physical artifacts, we have laid claim to a cultural inheritance of idyllic heroes and representative government.  We are leaning on manipulations of history to do so; manipulations intended to valorize the United States as the exemplar and appropriate inheritor of past greatness.

This interest in control of these artifacts and claim of ownership of a heroic narrative legacy then has greater implications of colonialism. In asserting a legacy from the Ancient Greeks, America, and other centers of the Western world,  claim descendance from a culture that, in turn, claims a descent from the gods and god-like heroes of its own past. The result is an implication that the nations and cultures that originated this grand legacy, no longer have what it takes to expand and continue it.  This opens the door to oppression under the guise of rescue. Even something as simple as asserting that non-Western museums are incapable of maintaining the art reemphasizes the notion that American greatness has supplanted that of the nations and cultures that preceded it.

This appropriation of the art blends uncomfortably with the savior narrative it reinforces.  Wealthy white Americans take it upon themselves to manage the art they have deemed worthy, removed from the people they have deemed unworthy. Unfortunately, it is here that race and privilege are unavoidably thrown into the mix. Although applicable to art and artifacts across the world, the Ancient Greek pieces provide a clear example: it is only in contrast to Western ideals that we considered modern Greeks unworthy inheritors of their own history. Echoing uncomfortably with the fact that most modern audiences do not know that the statues and temples were painted, the modern aesthetic value placed upon the gleaming white is imposed by the colonial powers, preventing understanding of the values of the originating culture.  

Understanding just how deeply ingrained these colonial concepts are in our national identity, it can seem like repatriation will make little difference. But it is a step in the right direction and the National Stolen Property Act of 1934 (NSPA) is a way to get started. The NSPA, often used in conjunction with foreign patrimony laws restricting ownership and transport of cultural property, penalizes the possession, transport, and sale of items that have crossed a state or U.S. border after having been stolen, converted, or taken. 

Although the statute seems fairly straightforward in its application, it was the 1986 amendment and the Second Circuit’s United States v. Schultz decision that gave the NSPA real teeth. Implemented in 1934, it wasn’t until 1986 that the amendment added possession to the list of criminal behaviors.  Prior to 1986, museums used the statute of limitations as a defense, with decades if not centuries passing between the act of theft and active museum control. As possession is an on-going action, the amendment erased this defense and opened the door for actual enforcement.

United States v. Schultz then expanded the reach of the statute. In Schultz, the Second Circuit held that “just as the property need not be stolen in the United States to bring the NSPA into play, the fact that the rightful owner of the stolen property is foreign has no impact on a prosecution under the NSPA.” Allowing foreign nationals, and even governments, as victims under the act expanded the opportunities for enforcement. Together the 1986 amendment and Schultz brought the NSPA to the forefront of antiquities litigation.

But it is a removal or relaxation of the mens rea requirement that would make the NSPA the most effective tool for repatriation and decolonization of the art trade. The NSPA currently requires a defendant’s knowing violation, and with antiquities long since removed from their context, it is difficult to prove knowledge that the artifacts were stolen. Removing, or at least relaxing, the scienter requirement lowers the burden of proof needed to hold museums liable for possession of stolen property. This is simultaneously a deterrent for the continued acquisition of stolen goods and a justification for the repatriation of artifacts currently within museum collections. And as further enforcement will only limit the number of stolen artifacts entering the US, relaxing the mens rea requirement will do little harm to any legitimate antiquities trade, if there is one.

Artists Demonstrate the Significance of the CROWN Act

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By: Stephanie Turcios

Artists Supporting the CROWN Act. 

Nina Simone once said that it is an artist’s duty to reflect the times. Studies have shown that hair-based discrimination is a form of race-based discrimination and artists across multiple genres have denounced discrimination and promoted embracing love for all hair types. Notably, two friends, Alisha Brooks and Elizabeth Austin-Davis, created The Black Hair Experience, an art exhibit in multiple cities described as an “interactive selfie-museum…in the name of celebrating Black hair.” The inspiration for the art exhibit stems from the creators wanting to explore why Black women feel insecure about their hair in certain spaces. 

This insecurity starts at a very young age. According to one study, 53% of Black mothers say their daughters have experienced race-based hair discrimination as early as five years old. The study also found that 66% of Black children in majority-white schools have faced race-based hair discrimination – and 86% of those children experienced it by the age of 12. In response to the discrimination that youth of color experience, director Matthew A. Cherry created the Oscar-winning animated short-film, Hair Love,  to normalize textured hair. In his acceptance speech in 2020, Cherry supported then-pending legislation, the CROWN Act, which stands for Creating a Respectful and Open World for Natural Hair. Cherry advocated for the CROWN Act in response to the expulsion of DeAndre Arnold, a Black high-school student who was expelled for having dreadlocks. Although Arnold was later able to seek an injunction against the school district, it came at the expense of his high school graduation. See also Arnold v. Barbers Hill Indep. Sch. Dist., 479 F. Supp. 3d 511, 531 (S.D. Tex. 2020).

But What is the CROWN Act?

On March 18, 2022, the U.S. House of Representatives passed the CROWN Act in a 235-189 vote. The CROWN Act addresses long-standing prejudice and discrimination against people of color who wear their hair in specific styles and/or people with textured hair. The CROWN Act prohibits discrimination against individuals based on their hair textures or hairstyles. Specifically, the CROWN Act prohibits discriminatory practices in employment, housing, and other public sectors “based on the person’s hair texture or hairstyle, if that hair texture or that hairstyle is commonly associated with a particular race or national origin (including a hairstyle in which hair is tightly coiled or tightly curled, locs, cornrows, twists, braids, Bantu knots, and Afros).” The Act is currently languishing in the Senate. Due to the fierce opposition to the bill, many people fear that the bill will not pass the Senate and the issue will be left to individual states to contend with. Presently, 14 states, including Washington, have passed versions of the CROWN Act banning hair-based discrimination. 

The Opposition. 

Opposition to the CROWN Act is often politically and racially charged. Inflammatory remarks, such as those from Rep. Lauren Boebert, who described the CROWN Act as the “bad hair bill” or Rep. Marjorie Greene who voted no on the “nappy hair act” only further polarize the issue. Many people watched as Rep. Jim Jordon condemned the CROWN Act as nonimportant, purporting that the issue of discrimination has already been addressed through Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, and national origin. He further characterized the bill as a “distraction from issues American people care about.” 

The Bigger Picture: Hair-based Discrimination is a Legal Loophole to Race Discrimination.

Proponents of the CROWN Act note that Title VII has been narrowly construed, effectively creating a legal loophole in race-based discrimination that disproportionately effects Black people. For example, in 2016, an employer based in Alabama rescinded a job offer made to a Black woman after she refused to cut her dreadlocks. E.E.O.C. v. Catastrophe Mgmt. 852 F.3d 1018, 1021 (11th Cir. 2016). The court held that “dreadlocks, though culturally associated with race, are not immutable characteristics of Black persons,” and cannot serve as a basis of a Title VII claim. Id. Also, in 2016, in South Carolina, a Black woman was fired after she refused to chemically straighten her afro despite her compliance with conservative grooming policies; her termination was upheld because she could not establish a Title VII claim. Nelson v. Town of Mt. Pleasant Police Dep’t, No. 2:14-CV-4247-DCN-MGB, 2016 WL 11407774, at *4 (D.S.C. June 28, 2016), report and recommendation adopted, No. 2:14-CV-4247-DCN, 2016 WL 5110171 (D.S.C. Sept. 21, 2016). As these cases demonstrate, the CROWN Act is meant to address where Title VII of the Civil Rights Act falls short. 

Artists Empower Black People to Keep Fighting.

However, discussing the political arguments and legal cases surrounding this issue will never capture the dehumanizing effects of hair-based discrimination. Artists are better suited to express the emotional, spiritual, and mental impact hair-based discrimination has on people. Artists across many platforms have spoken out about the significance of accepting and validating all hair types. Poets such as Teeanna Munro who performed Burn Scars, or Nina West who performed The Crown, call out the discrimination people face because of the texture of their hair while simultaneously advocating for acceptance and self-love. Musicians have done the same thing. Solange wrote in Don’t touch my hair, “don’t touch my crown . . . they don’t understand what it means to me.” 

Music also reflects the lived experiences of many people who face hair-based discrimination. A hip-hop classic, I am not my hair by Akon and India Arie, lyrically portrays the experience of the plaintiff in E.E.O.C. v. Catastrophe Mgmt when they said “. . . I couldn’t get no job ’cause corporate wouldn’t hire no dreadlocks.” And their lyrics ring with truth when they reflect people’s bigoted beliefs that “good hair means curls and waves, bad hair means you look like a slave,” which was insinuated by the comments of Rep. Greene and Rep. Boebert. The sad part remains that this song was written in 2006, yet these discriminatory beliefs and practices persist today in 2022.  

So, Should you Care about Hair-based Discrimination?

So, is what Rep. Jordan said true? Is this an issue “American people” don’t care about? Are people of color with textured hair not part of the American people? Is discrimination not an issue the American people care about? 


For what it’s worth, I think this is an issue worth caring about. In the words of India Arie, I leave you to ponder this: “Does the way I wear my hair make me a better person? Does the way I wear my hair make me a better friend? Does the way I wear my hair determine my integrity?” If the answer to these questions is no, then a person’s hair texture or hairstyle should not be a factor when pursuing employment, education, or any other opportunity.