ADDRESS UPDATE - JUNE 2020
I have been able to successfully work remotely during the pandemic. As a result, and since my office lease is expiring, I have decided to continue my law practice from my new office location.
Accordingly, effective immediately, my office address will change from 230 Park Avenue, Suite 660, New York, NY 10169 to 80 Country Ridge Drive, Rye Brook, NY 10573.
I can now be reached at my mobile number (917) 848-9373. We will no longer be using the phone number of (212) 481-1850. Please delete that number from any records and replace it with the new one. My email address, however, is remaining the same, email@example.com, as will my website, www.HeckerEsq.com.
Joel received his J.D. from New York University School of Law and is a repeat Super Lawyer. He brings a broad perspective to his practice, which includes the negotiation and drafting of contracts and agreements of all types. He prides himself on being able to successfully resolve disputes by creative means.
Joel regularly counsels clients in all aspects of photography and visual arts law, copyright, licensing, publishing, contracts, privacy rights, digital media, and other intellectual property issues. Joel's practice also includes trademark, real estate, estate planning, wills, and litigation in both Federal and State courts. He has successfully litigated many cases in these areas across the country. Joel has acted as general counsel to hundreds of the professional photographers, stock photo agencies, graphic artists, photography representatives, documentary filmmakers, and other photography and content-related businesses he has represented nationwide and abroad.
Joel has participated on legal panels and Symposia at the New York City Bar Association, the New York State Bar Association Entertainment, Arts and Sports Law Section, St. John’s University School of Law in New York City, Case Western Reserve School of Law in Cleveland, and The Copyright Society of the U.S.A. He also lectures and writes extensively on issues of concern, including articles in the New York Bar Association Journal, and The New York State Bar Association's Entertainment, Arts and Sports Law Journal.
Joel is past Chair and member of the Copyright and Literary Property Committee of the New York City Bar Association, a member of the Entertainment, Arts and Sports Law Section of the New York State Bar Association, and a long time member and past Trustee of the Copyright Society of the U.S.A. Specific references to his articles and lectures may be located through internet search engines under the keywords: "Joel L. Hecker."
Second Circuit Reverses Fair Use Decision - Holds Warhol Foundation Infringed Lynn Goldsmith's Photo as a Matter of Law
April 1, 2021
By Joel L. Hecker
On March 26, 2021, in a much-anticipated decision, the 2nd Circuit reversed the Southern District of New York decision, which found that Andy Warhol's creation of 16 silkscreen prints and pencil illustrations of the musical artist Prince, which was based upon a 1981 photograph created by photographer Lynn Goldsmith, was fair use under the United States Copyright Act. The case is The Andy Warhol Foundation for the Visual Arts v. Lynn Goldsmith and Lynn Goldsmith Ltd. (the parties are reversed as Warhol sought a declaratory judgment of non-infringement and Goldsmith counterclaimed for copyright infringement). 2021.03.26 Second Circuit Opinion.pdf
The District Court had found that all 4 of the statutory non-exclusive fair use factors favored Warhol. The 2nd Circuit panel disagreed and concluded that all of the factors actually favored Goldsmith. The 4 factors, set forth in 17 U.S.C. Section 107, are:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit 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 for or value of the copyrighted work.
The principal takeaways from the decision, which are instructive for those who deal with copyright fair use matters, are:
• The panel noted that recent court decisions have placed undue reliance upon the transformative aspect of the first factor, often determining that a transformative use was sufficient for a fair use finding irrespective of the other 3 factors. The panel limited the 2nd Circuit's 2013 Cariou v. Prince decision (714 F. 3d 694) to its facts and went out of its way to write that "our review of the decision below persuades us that some clarification is in order." The Cariou decision has, as the panel noted, "not been immune from criticism." That is an understatement, to say the least, and this reversal in Goldsmith goes a long way to correct what many have perceived to be Cariou's flawed fair use analysis.
• It does not follow that any secondary work that adds a new aesthetic or a new expression to its source material is necessarily transformative. This is particularly instructive as to derivative works, since that category is specifically excluded from the scope of fair use.