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ARTICLE · 09 JUNE 2023

Fair Dealing In Canada: Warhol Foundation Would Likely Face The Same Ruling

Borden Ladner Gervais LLP
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The U.S. Supreme Court (SCOTUS) decided against Andy Warhol Foundation's claim that fair use applied to the publication of Andy Warhol's work Orange Prince. This is a narrow decision...

GlobalIntellectual Property
Adrian J. Howard
Adrian J. Howard
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The U.S. Supreme Court (SCOTUS) decided against Andy Warhol Foundation's claim that fair use applied to the publication of Andy Warhol's work Orange Prince. This is a narrow decision limited to only one of four factors in the U.S. fair use analysis. A Canadian court, applying Canada's two analogous fair dealing factors to these facts, would likely agree with the SCOTUS majority.

Background to the SCOTUS decision

Lynn Goldsmith regularly photographed musicians and licenced her works to be published. In 1981, she photographed Prince at a live performance and in her studio for an article for Newsweek. One of her unpublished portraits from that shoot was later licenced to Vanity Fair for single use only as an "artist reference" in 1984. She was paid US$400 and would receive source credit in the magazine.

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