The Stakes in Andy Warhol Foundation v. Goldsmith

The Stakes in Andy Warhol Foundation v. Goldsmith

Next week, the Supreme Court will hear oral argument in Andy Warhol Foundation v. Goldsmith, the first non-software fair use case the court has heard since 1994. This has copyright lawyers aflutter, as fair use law has been in increasing disarray for the last 20 years or so, and there is hope that finally the Supreme Court will give lower courts much-needed guidance. Unfortunately, I think the probability is higher of a mush-filled disaster of an opinion, like the one in Star Athletica v. Varsity Brands (2017), that not only gives no guidance, but eliminates the few stable boundaries we have.

That’s because fair use doctrine is a poor fit for the way modern courts operate, and there is probably little the Court can do to fix that, but a lot it can do to make the problem worse. But before I get there, I want to lay out in this post what’s at stake in AWF.

The case involves a licensing deal between celebrity photographer Lynn Goldsmith and Vanity Fair magazine.

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How to Have Restrictive Contracts and Still Be “The Good Guys”

Cover of Adventure Zone graphic novelJustin, Travis, and Griffin McElroy have built a podcast empire on being wholesome good guys. They come off to their fans as three brothers who are down-to-Earth, goofy, and will never do anything to hurt people. This has connected with podcast listeners worldwide, helping them build a massive fan base.

But at some point, businesspeople and celebrities make mistakes. For the McElroys, this mistake has come in the form of them trying to find ways to make money off the success of their podcasts. Prior to 2018, the McElroys had sold merch for their podcasts, gone on tours to do live recordings of podcasts, and had a brief TV adaptation of the podcast “My Brother, My Brother and Me” on the failed streaming platform Seeso, which was owned by NBCUniversal.

Then came the graphic novel adaptation of “The Adventure Zone,” which shot to the top of the New York Times bestseller’s list. The graphic novel, while illustrated by Casey Pietsch, features a gallery of fan art at the back of every volume. Given the relationship the McElroys have with their fans, it seems reasonable they would pay tribute to the fans and the artwork they create by including a gallery of artwork tied to the events of that volume.

This fan art gallery has become the center of a bit of controversy in recent weeks.

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The Challenges Facing Podcast Hosts Protecting Trademarks

Cover of Adventure Zone graphic novelAmong the many technological changes in the 2010s was the rise of podcasts as a form of entertainment. Average people were able to purchase microphones and record conversations with their friends, family, or experts in a field, and then upload for people across the world to listen to.

Three brothers, Justin, Travis, and Griffin McElroy started recording the comedy-advice podcast “My Brother, My Brother, and Me” in 2010. After that podcast’s success, they went on to record several other podcasts, including “The Adventure Zone,” in which they play tabletop role-playing games with their father, Clint. This podcast has been done in three main storylines: “Balance,” “Amnesty,” and “Graduation.”

“The Adventure Zone” appears to be the most popular podcast released by the McElroys. Thousands of fans follow subreddits and Facebook pages and groups. “The Adventure Zone” has been adapted into a best-selling graphic novel, licensed for a tabletop role-playing game, and is currently being adapted for a possible animated show for the streaming platform Peacock.

With this fame has come devoted fans, some of whom make fan art and then sell it. This practice is largely disapproved by the McElroys, although they have not taken any legal action against creators of unauthorized merchandise. Justin McElroy has implied on Twitter that he is okay with people commissioning artists to draw characters from “The Adventure Zone.” This detail is lost by the fans, who treat all fan-creations for sale as bad. While the McElroys have created a podcast, which they appear to make money from, and they have a right to protect their creation from people seek to unscrupulously profit from it, there are challenges facing them, as well as other podcast hosts.

This is the focus of my paper You Must Roll 18 or Higher in Order for Your Claims to Succeed: Common Law Trademarks, Unauthorized Merchandise, and the Podcast “The Adventure Zone,” about which I was interviewed on the podcast “Ipse Dixit” by Prof. Brian L. Frye of University of Kentucky College of Law.

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