Randy Picker Writes About Goldsmith and Amgen

Creation over Time in Copyright and Patent

On May 18, the United States Supreme Court decided two intellectual property cases. The first, Goldsmith, was an eagerly anticipated copyright decision involving pop art legend Andy Warhol. The second, Amgen, concerned two pharmaceutical firms and was an important if perhaps less visible case about patent law’s enablement requirement, which requires that the patent give enough information to enable a second mover to make the invention in question once the patent has expired. Despite the cases’ differences, both raise the same broad questions, namely, how much space can an IP first mover control? How big is the scope of the monopoly held by the first mover and how much subsequent competition will we enable from second movers? Fundamentally, how should a legal system organize creation over time?

When you think Warhol, certain images come to mind: Campbell’s soup cans at New York City’s Museum of Modern Art (MoMA), the Brillo Box (also at MoMA) and his famous silk-screens of Mao and Marilyn Monroe (more MoMA and MoMA). Goldsmith centers on Warhol’s silkscreens of the musician Prince. The background to those images is critical and we need to start with the work of Lynn Goldsmith. Perhaps none of her work comes to mind, but Goldsmith is a professional photographer whose work has appeared in leading magazines, and museums. The works she creates are at the core of U.S. copyright law. And, relevantly here, she had taken photos of Prince. (You can see one of them on page four of the Supreme Court’s majority opinion.)

In 1984, Vanity Fair hired Warhol to create an image of Prince for a story. Vanity Fair provided Warhol something called an artist’s reference, meaning a photograph of Prince. To do so, Vanity Fair licensed one of Goldsmith’s images from her agency, paid $400, and received the right to use the image once. Vanity Fair published an image of Warhol’s Purple Prince silkscreen. All well and good.

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