Photography / Arts / Design

Second Circuit Finds Warhol Artwork of Prince Infringing: Drawing a Line Between Infringing Derivative Works and Transformative Fair Use with Appropriation Art

By Elizabeth Altman

Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 992 F.3d 99 (2d Cir.), opinion withdrawn and superseded on reh’g sub nom. Andy Warhol Found. for Visual Arts, Inc. v. Goldsmith, 11 F.4th 26 (2d Cir. 2021)

The Second Circuit recently upheld its earlier March 26 decision in Warhol v. Goldsmith, following the recent Supreme Court decision in Oracle v. Google.  The Warhol estate had asked for a rehearing after Oracle, which marked the Supreme Court’s first fair use foray in over 25 years, specifying that Google’s copying of Oracle’s Java API code to develop its Android mobile operating systems was fair use. Ultimately, however, and notwithstanding the Estate’s attempt to frame Oracle as broadening the scope of transformative use, the Warhol results remained unchanged. The Second Circuit affirmed its holding that artist Andy Warhol’s famed Prince series, based on a photograph by Lynn Goldsmith, was not fair use, limiting the Oracle decision to cases involving software code, particularly considering that code serves a utilitarian, not artistic, function. Reiterating its application of the four fair use factors, the court found Warhol’s use of Goldsmith’s photograph an infringing derivative work rather than a transformative fair use.

The Warhol dispute itself centered around a 16-work series by Warhol—silkscreen prints and pencil illustrations—which he based on Goldsmith’s 1981 black-and-white photographic portrait of Prince. Goldsmith, who had originally licensed the photo to Vanity Fair for use as an artist reference, was apparently unaware for decades that the artist behind the subsequent work was the famed Warhol. Further, Warhol had exceeded the intended scope of the license, creating not just one image, as he was commissioned to do by the magazine, but 15 additional ones, that became his well-known Prince series.

Goldsmith first learned of the series following Prince’s death in 2016, and notified the Andy Warhol Foundation for the Visual Arts, Inc. (“AWF”) that she believed it violated her copyright in the original photograph. Seeking to ward off prospective litigation, AWF initiated a suit against Goldsmith’s studio for a declaratory judgment that Warhol’s works were non-infringing, or alternatively a fair use. Goldsmith countersued for infringement.

The case had a few twists and turns as it first passed through the Southern District of New York, which held that it was “plain” that Warhol’s series was protected by fair use. Driving this decision was the court’s finding that under the first fair use factor, which addresses the purpose and character of the secondary artist’s use, Warhol’s use had been transformative, changing the character of the original image by “transform[ing] Prince from a vulnerable, uncomfortable person to an iconic, larger-than-life figure.” This finding in turn swayed the remaining second and third factors, addressing the nature of the work and the amount of the work used, and as to the fourth, which addressed the potential for market harm for the original, the court believed that Warhol’s art and Goldsmith’s prints operated in separate markets that would not affect each other.

The Second Circuit’s reversal marked a departure from both this holding and its own precedent on transformativeness with respect to appropriation art, particularly from its 2013 ruling in the Cariou v. Prince, which had addressed another famous artist’s—Richard Prince’s—alteration of a photographer’s work, finding it to be transformative and fair use.Although the Second Circuit took pains to note that it would remain bound by Cariou as precedent, it did single out the decision, seeking to clarify—and for all intents and purposes gut—the case’s application of transformativeness with respect to appropriation art.

Transformativeness derives from an earlier a Supreme Court decision, Campbell v. Acuff-Rose Music, Inc.,and directs courts to examine the degree to which a secondary work transforms the original, imbuing it with a new meaning or message, or a further purpose or different character. Courts consider whether a work is transformative by how it may be reasonably perceived. Works that are found to be transformative often sway the first factor towards a fair use finding. The Second Circuit’s particular concern over the application of Cariou’s transformativeness approach was that the Southern District had read it to support a rule that any secondary work is transformative if, compared with the original, it displays a different character, new expression, or employs new aesthetics with creative, communicative results. However, just because a secondary work adds new expression or aesthetics, does not necessarily mean it has transformed the original, cautioned the court. Where the work “does not obviously comment on or relate back to the original or use the original for a purpose other than that for which it was created,” it should not be deemed transformative. The court compared the works deemed to be fair use in Cariou with the ones that could not be determined to be fair use as a matter of law and noted that those that were considered fair use were more collage-like and consisted of many elements, in contrast to works in which the artist had only added a few elements to the photograph, which were remanded to the district court.

In the case at hand, conceivably, any photograph of Prince would have sufficed to meet Warhol’s purposes, not merely Goldsmith’s particular work, and as such, the court declined to treat his output as more than a derivative work, for which he would owe a licensing fee. Notwithstanding the fact that a derivative work will likely look at least somewhat dissimilar or altered when compared to the original, because Warhol had not undertaken the alterations to comment on the underlying work, it could not qualify as transformative, which the court stressed requires much more in the context of appropriation art to qualify as fair use, so as not to deprive the original creator of their owed license.

Revisiting the first factor analysis, the Second Circuit held that the purpose and function of the two works in Warhol was one and the same, as both were works of visual arts that portrayed Prince. Any deviations Warhol made to imbue the print with his signature style did not transform the work in the fair use sense of the term, but merely adapted it by removing some of the image’s depth and heightening its contrast with loud, unnatural colors. The photograph remained the recognizable foundation of the work. The amended decision did note, however, that in the context of visual artworks, purpose is “perhaps a less useful metric” considering both the original and secondary work take as their purpose the aim of serving as visual art. The deciding factor, the court advised, was a comparison of the secondary work with the source material. In Cariou, for example, fair use arose for those works that were most collage-like and most rendered the original unrecognizable. The main test, therefore, is whether the secondary work’s use of the source material serves a fundamentally different and new purpose and character, rendering the work unique from its raw material. It is not enough, as in Warhol, for an artist to merely impose his style on the primary work, leaving the essential elements of both intact. While such an undertaking may serve as an adaptation or derivative, it is not transformative.

Further, it would not suffice to allow Warhol a “hall pass” merely because the work he created was immediately recognizable as a “Warhol,” as such a standard risks creating a “celebrity-plagiarist” loophole, where, in actuality, Warhol had the same responsibility to license the original as any less famous artist. Nor would it suffice for the artist to merely state that the series was transformative, or for the court to discern such intent.  

As to the second and third factors, which typically hold less sway in the overall analysis, the court, with the blinder of transformativeness removed, found that the amount and substantiality of the portion used strongly favored Goldsmith, considering that Warhol had copied the photo wholesale. Diverging again, from the district court’s view, the Second Circuit believed it irrelevant that Warhol had made certain alterations, like cropping and flattening the photo. And, contrary to the district court’s view of the fourth factor’s effect on the market for the original, the Second Circuit did believe that the series could threaten Goldsmith’s licensing markets, considering that fair use examines potential, as well as existing markets. The court believed the works shared the same secondary licensing markets, as both appealed to magazines and other publications providing content relating to Prince. This emphasis on the fourth factor further departed from Cariou, which had placed the greatest weight on the transformativeness analysis; in giving the fourth factor its fair due, the Second Circuit joined the growing number of courts reemphasizing the fourth fair use factor as primary, or at the very least, not a factor to be subsumed into shadow of transformativeness.

Overall, the key Warhol lesson that artists should take away is to be aware that courts have grown less inclined to permit fair use to safeguard wholesale copying, or appropriation, where a new work does not truly transform the original by incorporating a new message, even if visual elements of the original have been substantially modified. In cases where the second work does not comment directly on the original, as in Warhol where the works remain visually substantially similar, fair use is less of a given, and the work will instead likely be deemed derivative. Although Warhol’s use of photographs aimed to effect social commentary, the Second Circuit now requires appropriation art to actually change the underlying work (if not commenting on the underlying work), which disfavors conceptual art that comments more broadly on society, such as Warhol’s commentary on celebrity icons with his series on Marilyn Monroe, versus collage artists such as Richard Prince who combine many elements of published works. Since the selection of the underlying image was not relevant to Warhol, he could have licensed any photograph of Prince’s image to use as a derivative work. Although Cariou remains good law, its approach to transformativeness no longer applies; instead, the burden of showing transformativeness is now set at a higher bar. It’s also possible that other photographers will see this case as an open door to bring suit, where the statute of limitations allows, against artists, even Warhol, who arguably applied a light hand in creating secondary works from their material. Yet, it’s important to remember that, for better or worse, fair use cases tend to be very contextual, and may depend on the type of work infringed, as demonstrated by the Second Circuit’s refusal to apply Oracle’s holding on code to appropriation art. Finally, as discussed in the latest Warhol decision’s concurrence, although galleries, art dealers, and museums that acquired the appropriation art should not be affected by the case (i.e., they would not owe damages or royalties to plaintiff), its holding may apply to entities like magazines, that commercially license the work. This is so because, as the concurrence observed, Warhol’s series and Goldsmith’s photograph shared overlapping licensing markets owing to their similar expressive capacity as Prince portraiture.

Navigating NFTs: Considering Best Practices and Avoiding Pitfalls

By Sarah Conley Odenkirk, Partner

All of a sudden, no one can talk about anything but NFTs!  For those people who have used up all of their tech tolerance on Zoom meetings this year, understanding this latest frenzy can seem like an insurmountable task.  But FOMO tends to be very motivational!  Given that the value of the crypto art market has now reportedly surpassed $200 million, the fear of missing out may very well be warranted.  And actually, as it turns out, NFTs really aren’t that difficult to understand.  If you can shop online, then you can understand NFTs.

Let’s start with the 30,000-foot-view of what exactly is going on:  NFTs—or non-fungible tokens—are a mechanism to make digital files into a unique asset, created and sold on the blockchain using cryptocurrency.  If you only understood one or two words in the previous sentence, everything will be explained shortly.  In the meantime, as you may be aware, an important event happened few weeks ago when Christie’s auction house sold an NFT for $69 Million and everyone went crazy.  Now that it looks like there is a market with real money for digital assets, people are creating NFTs by the thousands in an effort to participate in the gold rush.  While this frenzy will likely settle down sooner than later (predictions of a bursting bubble are already circulating), there is technology here that is evolving, and almost certainly some version of what is happening now will endure into the future.  So, it is definitely worthwhile to become at least somewhat familiar with what this is all about.

There is a large quantity of incredibly complex information, and those with advanced crypto-savvy will want to interject all of the various nuances and details into the somewhat simplified explanations here, but this is crypto-triage.  If at the end of reading this article, your interest is piqued and you’re hungry for more, there is an entire (ever-expanding) universe of information online just waiting for you to dive in.  Hopefully, with the information here, you can at least doggie paddle your way through some of the more sophisticated information waiting for you in the digital ocean.

Part of the challenge for those trying to catch up is that the acronym “NFT” has been layered on top of “blockchain” and “cryptocurrency” and since many people are still struggling with those concepts, one more new tech term can easily lead to panic and surrender.  So let’s start at the beginning and break it down a piece at a time with some extremely simplified explanations in plain(ish) English.  Along the way, questions and considerations are highlighted so that you can start thinking about how to position yourself and hopefully avoid any big blunders.

Blockchain.  (If this is the 600,000th time you’ve heard this foundational element described, skip down to Cryptocurrency). The blockchain is an immutable ledger that stores information on a network of computers (each is called a “node”).  It is considered to be a secure system because once the information is entered into the blockchain, it cannot be changed.  One of the biggest pitfalls of the blockchain is a “garbage in, garbage out” problem.  In other words, if incorrect information is entered into a blockchain—intentionally or not—it cannot be edited or corrected. 

Best Practice:  Look before you leap!  Make sure that your information is correct and that, if applicable, you have all underlying rights, titles, permissions, and licenses before entering anything onto the blockchain.

Cryptocurrency.  (If you have cryptocurrency all figured out, skip down to NFTs).  Cryptocurrency is digital currency, or tokens, for which transactions are verified and maintained on the blockchain.  Cryptocurrency may be acquired three basic ways:  Mining, baking, or purchasing.

The most well-known and widely-used currency is Ethereum, which is based on a Proof of Work (POW) system. Mining is required for POW currencies.   Mining means having computers (often enormous groups of computers) solve complex algorithms to add blocks to the chain and in the process earn currency.  Whoever solves the algorithm first, wins the tokens as a reward.  The big criticism of this process is that it uses an enormous amount of carbon-based resources in powering the computers which are all competing to solve the algorithms first, making the whole process ridiculously harmful to the environment. 

Additionally, the transaction validation process of POW systems involves all nodes on the blockchain.  This creates a structure that is not easily scalable.  As it grows (ie. more blocks on the chain are added), more computational power is required, and thus more resources are used.  As a result, payments (called “gas”) are charged to users to compensate for the energy required to process and validate transactions on the blockchain.  These fees may change depending on the congestion on the blockchain at the moment that the user wishes to enter information onto the chain. 

The alternative cryptocurrency system is called Proof of Stake (POS).  With POS, tokens are earned by depositing an amount of that currency in an account where it is essentially an investment in the system.  Based on the value of the stake (and sometimes other factors as well), the owner staking the currency will be assigned blocks to solve and receive new tokens without competing.  This process is called “baking”, requires far less computing power, and is therefore a much more environmentally sound system.  Since transactions do not rely on computational power, gas is not an issue and transactions are extremely inexpensive.

While POS currencies are lagging behind their POW siblings, in the last few weeks, the chorus of environmentally-conscious cryptoverse voices has grown louder and is putting pressure on the entire ecosystem to embrace more earth-friendly solutions.  There is no question that as the NFT market evolves, the POS systems will gain traction and stability.  Certainly if this new frontier is to continue to develop in a sustainable manner, POS will have to lead the way.

Finally, you can, of course, simply purchase crypto with your debit or credit card online.  There are over 1500 currencies to choose from, and many fluctuate in value tremendously.  While you can always exchange currencies on exchange platforms, be aware of the fees and costs of buying with fiat and making exchanges.

Best Practice:  Understand the environmental consequences of your choices in cryptocurrencies and, of course, never invest more than you can afford to lose!  Also, it is important to note that there are potential tax consequences relating to exchanging crypto into fiat, so proceed with caution when pulling value out of cryptocurrencies to make use of it in dollars.

Wallets.  Cryptocurrency and the digital assets you purchase with it are stored in a “wallet”. This might be called a cryptocurrency wallet, or a blockchain wallet.  The password for a wallet is incredibly important to keep someplace safe as there is no way to retrieve a password (or in some cases a “seed phrase” consisting of a string of random words) if it is lost or forgotten.  If you lose the password, you lose your wallet.  As you can imagine, there have been some incredible, if not heartbreaking, stories of enormous amounts of cryptocurrency and digital assets lost when the holder of the password loses it or dies without storing the information someplace discoverable. 

Best Practice:  Hope for the best, but plan for the worst.  It is always good to keep your password someplace secure, but make sure that it is safely accessible in the event you forget it, or meet an untimely demise.  

NFTs.  (If you’ve already spent your mad money collecting the latest that Nifty Gateway has to offer, you can either skip to the last few paragraphs of this article, or go finish binging Cobra Kai, which I predict will be selling its own NFTs shortly).  So finally, we get to the heart of the matter:  NFTs.  Non-fungible token is just a fancy term for a unique item—in this case a unique digital asset.  This is in contrast to a fungible item such as currency where one item is interchangeable for another . . . like a dollar bill or Ethereum.  

NFTs are “minted” by using an online platform that creates the NFT by customizing a “smart contract” to include specific information pertaining to a particular asset.  In the case of artwork, music, or other creative endeavors contained in a digital file, the NFT includes metadata that points to the file containing the artwork.  The file might be “baked into” the NFT, but given the limited storage on the blockchain, the actual artwork most likely “lives” on an Interplanetary File Server (IPFS) off of the blockchain on which the NFT exists.

“Smart contract” is actually a somewhat inaccurate term to describe the coding that underpins NFTs.  Anyone who was first introduced to computer coding in the after-school classes at Radio Shack in the early 1980s, knows that the simplest form of coding relies on “if-then” propositions.  This is all that an NFT is—a series of “if-thens” that determine what happens when an NFT is bought or sold. 

NFTs can nevertheless be quite powerful in creating new standards for art world transactions.  Currently, one feature that often is included is a built-in resale royalties term.  This is one way that NFTs could potentially create real long term disruption in art market transactions—at least those happening online (we’ll have to see how well these new practices translate to non-digital transactions).  Some people minting NFTs are adding other terms as well, such as dedicating a portion of the sales to carbon offsets—presumably to make up for the horrendous toll all of this digital transacting is taking on our planet.

With the potential to be creative in customizing some of the transaction terms, NFTs could provide an interesting testing ground for new business models.  It is important to understand, however, that the terms embedded in the NFT are fairly limited currently due to the cost involved with creating elaborate and new structures.  The more elaborate, the more likely there will be problems in the ability of the NFT to interact in the digital ecosystem.  Until this environment has evolved quite a bit further, off-chain contracts—meaning agreements that are not embedded in the NFT itself—will still need to be integrated into the promotion and sale of NFTs.  These off-chain contracts can be pointed to in the metadata in the same way the NFT links to the artistic asset.  Thus, making sure that an NFT asset is protected over the long term will require a balancing of embedded language and referenced documents.   

Best Practice:  Understand the limits of NFT embedded terms and make sure to consider the entire scope of protection needed to ensure the sustainability of an NFT asset.  Figuring out how to dovetail “smart contacts” with off-chain contracts currently remains crucial.

If the NFT market can legitimately and sustainably grow beyond the group of crypto-bros who have made millions in the crypto market and need to circulate their inflated fortunes, NFTs could be the new gateway drug to developing new collectors of both digital and object-based art in the fine art marketplace.  Or NFTs might just evolve to be another world parallel to and only loosely affiliated with the fine art market. Given the flexibility of NFTs, it will likely be a little of everything, and without a doubt, the possibilities are endless.  For now, it is an exciting new frontier that offers a complex online laboratory for testing new business models in a wide range of creative practices.  While this digital frenzy sorts itself out, remembering to rely on common sense, well-drafted agreements, and traditional rights protection tools will be key in tempering the potential risks posed by this lightning-fast technological marketplace transformation.  Bottom line:  keep your crypto wallet close, and your legal counsel closer.

Second Circuit Limits Copyright Damages to Three-Year Period Before Suit

By Sara Gates

How do you square Psihoyos with Petrella, two of the most significant copyright statute of limitations cases in recent years?  Courts and attorneys alike have struggled with that question since the Second Circuit and the Supreme Court, respectively, handed down these two copyright decisions within the span of a month in 2014.  For the most part, courts have read the decisions separately, acknowledging the Petrella court’s three-year look-back period for a plaintiff’s recovery of monetary damages in a copyright action, while continuing to apply the Psihoyos court’s “discovery” rule, which extends the time when the Copyright Act’s statute of limitations period starts to run based on when the copyright owner “discovers” the infringement.

It was not until earlier this month that the Second Circuit took up the damages question in Sohm v. Scholastic Inc., No. 18-2110, 2020 WL 2375056 (2d Cir. May 12, 2020), and decided that, though the discovery rule is binding precedent in the circuit, the Supreme Court’s decision in Petrella counsels that there is a only a three-year lookback period from when suit is filed to determine the extent of monetary damages available.  Reversing the lower court’s decision on this point, the Second Circuit determined that a copyright plaintiff’s recovery is limited to damages incurred during the three years prior to filing suit.  The decision lends an advantage to copyright defendants where plaintiffs delay in bringing suit, yet still seek to recover expansive damages dating back as far as they can count. 

In the case, a photographer, Joseph Sohm, brought a copyright infringement action against Scholastic Inc., which had used 89 of Sohm’s photographs in various publications, outside the limited license granted by Sohm’s third-party licensing agent.  On cross-motions for partial summary judgment, the district court dealt with a host of copyright issues, ultimately finding that Scholastic only infringed the copyrights in six photographs.  Notably, the district court considered Scholastic’s arguments that the Copyright Act’s three-year statute of limitations barred Sohm’s claims as to certain uses of the photographs, and that Sohm’s damages should be limited to those incurred during the three years prior to filing suit.  The court rejected both of Scholastic’s arguments, finding the discovery rule adopted by the Second Circuit in Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120 (2d Cir. 2014), was still good law and that the Supreme Court’s decision in Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2014), should not be read to establish a time limit on the recovery of damages distinct from the discovery-based statute of limitations.

On cross-appeal to the Second Circuit, Scholastic urged the court to forego the discovery rule, and to instead adopt an “injury rule” (i.e., so the three-year statute of limitations period starts to run from the time of the copyright owner’s injury), to determine when Sohm’s claims accrued for statute of limitations purposes.  Citing Psihoyos as binding precedent in the Second Circuit that had not been overturned, the court disagreed with Scholastic’s position and affirmed the discovery rule, sticking with the majority of the circuit courts that have adopted the rule.  Scholastic’s second argument, however, fared better.

Asserting that, even if the discovery rule applies, Scholastic argued that Sohm still should not be able to recover damages for more than three years prior to commencement of the action, relying on language from Petrella.  Specifically, Scholastic noted that the Petrella court stated: “[u]nder the [Copyright] Act’s three-year provision, an infringement is actionable within three years, and only three years, of its occurrence” and that “the infringer is insulated from liability for earlier infringements of the same work.”  Though Sohm opposed Scholastic’s interpretation, calling it dicta, the Second Circuit disagreed, finding that this portion of the opinion was necessary to the result, so it acts as binding precedent.  Accordingly, the Second Circuit concluded that, notwithstanding the discovery rule, the Supreme Court “explicitly dissociated the Copyright Act’s statute of limitations from its time limit on damages” and “delimited damages to the three years prior to the commencement of a copyright infringement action.”  

While the Second Circuit did not adopt Scholastic’s proposed injury rule, its holding severely limits the copyright owner’s recovery when the discovery rule is applied.  For example, if an infringement occurred ten years ago, but was only recently discovered, prompting the copyright owner to file suit, the copyright owner would only be able to recover damages for the three years prior to filing, and would not be able to “look back” through the ten years since the infringement. 

In deciding that Sohm could not recover damages more than three years prior to filing suit, the Second Circuit became the first circuit to adopt this interpretation of Petrella.  Though other district courts outside the Second Circuit have addressed the issue—including a district court in the Ninth Circuit, Johnson v. UMG Recordings, Inc., No. 2:19-cv-02364-ODW, 2019 WL 5420278 (C.D. Cal. Oct. 23, 2019), which took the opposite position and permitted damages outside the three-year period—until other circuits weigh in, it is unclear whether the Second Circuit’s interpretation will become majority rule or whether a circuit split again destined for the Supreme Court is on the horizon. 

Content in Quarantine: Copyright Best Practices During a Pandemic

By Scott J. Sholder

At a time when we are stuck at home, working or “working” (or, sadly for many, not working) the tenet that content is king has never been more relevant.  From Disney+ releasing “Frozen II” and “Onward” early to help placate restless youngsters, to DreamWorks releasing “Trolls World Tour” for “theatrical” in-house rental, to Instagram sensation DJ D Nice offering his “Club Quarantine” and “Homeschool” IG parties and Spotify playlists, there is something for everyone on one platform or another.  Musicians are even offering special live-streamed performances from their homes (thank you Dave Grohl, Billy Joe Armstrong, et al.).

While the Disney and DreamWorks releases were clearly authorized corporate decisions, the world of quarantine content becomes murkier when one turns their overly scrubbed fingers to the keyboard.  Of course, the lead singers of Foo Fighters and Green Day, respectively, likely have the rights to publicly perform music they wrote, and reports indicate that DJ D Nice made licensing deals to avoid copyright claims stemming from his streaming discotheques.  But in the further corners of social media, the always-gray field of copyright has spawned more than its usual fifty shades in the time of COVID-19.  So, what about musicians performing other artists’ songs?  Fitness instructors on Instagram Live with their playlists thumping in the background?  The Internet Archive[i] offering its own “Emergency Library” of digital copies of books (a decision decried by the Authors Guild and Association of American Publishers, but claimed to be fair use by archive.org)?  Or DJs who, unlike DJ D Nice, did not have permission to publicly perform or remix the music featured during that IG virtual dance party?

At least in the latter case, some DJs and performers streaming on Instagram Live have reported that they’ve had their streams cut short by copyright infringement claims over use of musical content without authorization.  Lesser-known and aspiring artists (who, like many, are out of work at this time) are having their online raves canceled mid-performance.  But at the same time, artists whose content is being used may also be out of work and may be incentivized, perhaps more than usual, to enforce their copyright rights and preserve their dwindling income streams.  This presents a sensitive nuance to an already delicate balance between online content usage and rights enforcement. 

There is no timelier example of COVID-era copyright enforcement than Richard Liebowitz, the infamous plaintiff’s lawyer behind more than 2,000 copyright infringement lawsuits filed by photographers over the last four years.  His business model – which he characterizes as fighting for photographers’ rights, and much of the digital media industry characterizes as “trolling” – has, like COVID-19, mutated to adapt to its new circumstances.  It was recently reported[ii] that, despite quarantine and widespread isolation (or perhaps because of it), Liebowitz’s filings have actually increased, with his firm filing 51 lawsuits between mid-March and early April (39% of all copyright infringement lawsuits filed since the World Health Organization declared a global pandemic).[iii]  Likewise, porn studio Strike 3 Holdings is also keeping busy during the pandemic, having filed a more modest 11 new lawsuits since mid-March.[iv]  The uptick in these types of cases is potentially correlated to the increased use of content during quarantine and the reduced number of opportunities for photographers and other content creators to earn a living.  So, what’s a pandemic hermit to do?

The short answer: the same thing you’d do in pre-COVID life.  Even in these strange times of social distancing and mandatory isolation, the same rules apply even when unauthorized content use is undertaken for seemingly laudable reasons such as alleviating boredom, distracting your kids, or entertaining your Instagram followers.  For better or for worse, there is no exception in the Copyright Act for what’s going on out there, so vigilance in defense as well as enforcement is paramount.  For instance, the test for fair use set out in section 107 of the Copyright Act of 1976 requires a lot more than benevolence in alleviating boredom or even supplementing one’s income during hard times to successfully fend off a claim of infringement.  One of the keys to establishing a viable fair use defense is “transformative use” – use of existing content that adds new expression, meaning, or message to the original underlying work.  Simply using the content as intended, even in an unprecedented environment, almost certainly will not be considered transformative.  As tempting as it may be to utilize others’ content for a seemingly good cause, good intentions do not a fair use make. 

Best practices for content usage remain largely unchanged.  The first-tier best solution is to use vetted licensed content (ideally pursuant to representations, warranties, and indemnification from the licensor) or seek permission, preferably in writing, directly from the copyright owner.  There are plenty of options out there for many types of content.  Licensing agencies like Getty Images, Shutterstock, Adobe, and Pond5 are stalwarts for visual content.  Many book and journal publishers are now offering resources[v] for newly minted home teachers.  Creative Commons licenses and use of public domain material are also viable options, particularly for photographic content, although may be less useful for things like popular music and are not always fool proof.  Music licensing is a unique beast that could fill an entire treatise, but suffice it to say that several licenses may be required depending on the nature of the use, including public performance licenses from performing rights organizations like ASCAP, BMI, SESAC, and Global Music Rights, “mechanical” licenses from music publishers and “master use” licenses from labels when content is downloadable, and synchronization licenses from publishers and record labels for music that is cued up with accompanying video content.  It’s certainly worth noting that some sites offer royalty-free and low-cost licensable music, such as Freeplay Music, Audioblocks, and Free Music Archive, without the added worry of the music licensing labyrinth.

Reliance on defenses like fair use should be a last resort, and in such cases, it is always wise to seek advice from an experienced copyright lawyer.  And, on the other side of the equation, if you believe your content is being used in a way that violates your copyright rights, platforms like YouTube and Instagram have DMCA takedown forms for removal of infringing content, but recent developments in the law require at least some consideration of whether the user has potential defenses (such as fair use) before submitting a takedown notice.

As we stay vigilant against the virus that is causing so much havoc worldwide, we must also make sure that we stay within the bounds of the law and mitigate our legal risks as we mitigate our health risks.  While troubled times such as these call for cooperation, collaboration, forgiveness, and flexibility, absent content owners and users working together to reach mutually beneficial arms-length deals, or the creation of a collective effort to allow free use of IP like that of Open COVID Pledge[vi] for health-based patents and technology, the rules remain as they were even if the world outside doesn’t.   

This article appeared in the May 1st issues of LAW360 Intellectual Property, LAW360 Media & Entertainment, and LAW360 Coronavirus.


[i] “Announcing a National Emergency Library to Provide Digitized Books to Students and the Public,” Internet Archive Blogs (Mar. 24, 2020), https://blog.archive.org/2020/03/24/announcing-a-national-emergency-library-to-provide-digitized-books-to-students-and-the-public/

[ii] Bill Donahue, “During Pandemic, Prolific Copyright Lawyer Keeps Suing,” Law360 (Mar. 27, 2020), https://www.law360.com/ip/articles/1257593/during-pandemic-prolific-copyright-lawyer-keeps-suing?nl_pk=db11a53e-b04f-44a7-96e1-76824544133d&utm_source=newsletter&utm_medium=email&utm_campaign=ip

[iii] See id.

[iv] See id.

[v] “What Publishers Are Doing to Help During the Coronavirus Pandemic,” Association of American Publishers, https://publishers.org/aap-news/covid-19-response/

[vi] Open Covid Pledge (Apr. 7, 2020), https://opencovidpledge.org/

CDAS IP Group and Partner Nancy Wolff Recognized in Chambers USA 2020


The highly regarded “Guide to the Top Lawyers and Law Firms” described CDAS as a “highly skilled boutique offering excellent capabilities handling trademark and copyright infringement cases, as well as substantial portfolio management matters. [CDAS] exhibits expertise acting for market-leading entertainment, media and digital platform clients.” In addition to recognizing the firm for Intellectual Property: Trademark, Copyright & Trade Secrets (New York), Nancy Wolff was also recognized as “a leading attorney in IP issues relating to digital media, counseling clients in a broad range of matters including disputes and licensing.”


Nancy Wolff Featured in ABA Grassroots Initiative Discussing the CASE Act

As part of ABA Day, Nancy participated in a CASE Act Introduction and discussed implications of The Copyright Alternative in Small-Claims Enforcement (CASE) Act of 2019 and its creation of the Copyright Claims Board as an alternative forum to pursue low-value claims of $30,000 or less. Listen to the panel here.

S.D.N.Y. Holds that Publishers May Embed Content Publicly Posted on Instagram Platform — (Sinclair v. Ziff Davis, LLC et al.)

By Lindsay Edelstein

Since the emergence of social media, courts, content creators, and publishers alike have been grappling with legal issues concerning the practice of “embedding” copyrighted content.  Following the controversial February 2019 decision in Goldman v. Breitbart News, LLC – rejecting the Ninth Circuit’s “server test” and holding that an embed constitutes a “public display” exposing a content user to liability under the Copyright Act – the pendulum had seemingly swung in favor of content owners, creators, and licensors. 

Yesterday, however, Judge Kimba Wood of the U.S. District Court for the Southern District of New York, issued a ruling in Sinclair v. Ziff Davis, LLC et al, providing publishers and other content users with a defense to alleged copyright infringement premised on the practice of embedding in the context of social media platforms: a valid sublicense granted to the user by Instagram via the interrelated agreements available on its platform. 

Sinclair, a professional photographer, publicly shared her copyrighted photograph “Child, Bride, Mother/Child Marriage in Guatemala” on her public Instagram page, which was viewable by anyone.  Media and entertainment platform Mashable made an offer to license the photograph from Sinclair for use in an article entitled “10 female photojournalists with their lenses on social justice.”  Sinclair rejected Mashable’s offer, but Mashable proceeded to use Instagram’s application programming interface, or “API,” to embed Sinclair’s original Instagram post in its article.  The embed frame of Sinclair’s Instagram post, as it appeared in the Mashable article, was hosted on Instagram’s servers, linked back to Sinclair’s Instagram page, and included the photograph, Sinclair’s original caption, and the date of the original post.  The Mashable article specifically discussed Sinclair and her work above the embed.  Sinclair filed suit against both Mashable and its parent company Ziff Davis, LLC for copyright infringement.

Mashable’s chief argument was that Instagram’s integrated agreements (i.e., its Platform Policy, Terms of Use, and Privacy Policy) clearly granted it a sublicense to display the photograph.  Indeed, the Terms of Use stated that, by posting content to Instagram, the user “grant[s] to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to the Content that you post on or through [Instagram], subject to [Instagram’s] Privacy Policy.”  Pursuant to Instagram’s Privacy Policy, users can revoke Instagram’s sub-licensable right by designating the content at issue as “private.”  Because Sinclair posted the photograph publicly, Judge Wood opined, “Plaintiff made her choice.  This Court cannot release her from the agreement she made.” 

While the Court conceded that Instagram’s integrated agreements could be more concise and accessible, it declined to accept Sinclair’s contention that the agreements were unenforceable because they were purportedly “circular,” “incomprehensible,” and “contradictory.”

Judge Wood also touched upon a real dilemma faced by professional photographers: deciding whether to remain in “private mode” on one of the most popular public photo sharing platforms in the world, or to promote and share work publicly.  On the one hand, sharing content publicly allows widespread exposure and can be effectively used to market and promote one’s work.  Indeed, many photographers today use Instagram as a digital portfolio, showcasing their works to the masses.  On the other hand, if sharing content publicly grants a valid sublicense to publishers of digital content, the licensing value of such content may be diminished.

This holding is likely to send shock waves throughout the creative community as rights holders may be forced to rethink how they make their works available to the public.  Alternatively, for publishers and media entities, it allows use of publicly available content provided the publisher uses the embed API that links directly back to the Instagram account user’s full Instagram page. 

As with the Goldman case, the Sinclair holding is not binding on other courts and does not create a per se rule with respect to the practice of embedding, and each case will likely depend on the specific circumstances present. In Goldman, the photographer never posted to Twitter, but rather shared his image of Tom Brady in a private Snapchat, with one friend capturing a screen grab and further distributing it on the Twitter platform.  Twitter’s terms, unlike Instagram’s, do not grant publishers a sublicense to embed using the Twitter environment.  Users of content should note that the Instagram Privacy Policy requires the user to obtain consent before using content in an ad.

Moving forward, courts will likely consider the terms of service (including the content owner’s choice of privacy settings) and the type of embedding at issue (i.e., the “framing” of standalone images as in Goldman, versus the prototypical “embedding” using Instagram’s API as in Sinclair).  Courts may also consider the context of the use at issue as well, such as whether the use of the image transformed the purpose of the original work, or whether it is merely illustrative of the article.   Before considering embedding any content, publishers should carefully review all relevant terms of service and seek legal counsel as platform policies are not uniform and there is uncertainty in the law.

Allen v. Cooper: Supreme Court Upholds State Sovereign Immunity in Copyright Row Over State’s Unauthorized Use of Videos and Images of Blackbeard’s Famed Shipwreck

By Lindsay R. Edelstein

In a technical win for states facing federal claims under the Copyright Act, on Monday, March 23, 2020, the United States Supreme Court struck down the Copyright Clarification Act of 1990 (the “CRCA”), which had allowed states to be sued in federal court for copyright infringement.  Allen v. Cooper, No. 18-877, 2020 WL 1325815 (U.S. Mar. 23, 2020).  The Supreme Court, however, did not foreclose the possibility of later abrogating such sovereign immunity, should Congress draft a tailored, constitutional statute addressing infringement by states.  The decision is available here.

The underlying action was brought by videographer Frederick Allen, who was hired by marine salvage company Intersal, Inc. to document the recovery of Queen Anne’s Revenge, a vessel commandeered by Edward Teach (better known as Blackbeard), and shipwrecked nearly 300 years ago off the North Carolina Coast.  Allen registered the copyrights in all his works created during the ten-year excavation with the U.S. Copyright Office, including videos and photographs of guns, anchors, and other remains on the ship.

The state of North Carolina, which had engaged and contracted with Intersal to conduct the recovery efforts but did not have authorization or a license to use certain of Allen’s works, published some of Allen’s photographs and videos online and in a newsletter.  In response to the unauthorized publications, Allen sued the state for copyright infringement in federal district court.

North Carolina moved to dismiss, invoking the doctrine of sovereign immunity, which precludes federal courts from hearing suits brought by individuals against nonconsenting states.  According to Allen, however, the doctrine was abrogated in the copyright context by Congress with its enactment of the CRCA, which provides, in pertinent part, that states “shall not be immune, under the Eleventh Amendment [or] any other doctrine of sovereign immunity, from suit in Federal court” for copyright infringement.  17 U. S. C. § 511(a).  The district court agreed with Allen and denied North Carolina’s motion. 

North Carolina appealed the case to the U.S. Court of Appeals for the Fourth Circuit, which reversed the district court’s ruling, relying heavily on Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627 (1999), which had repudiated the Patent and Plant Variety Protection Clarification Act (“Patent Remedy Act”); the Patent Remedy Act was modelled after the CRCA with identical language concerning sovereign immunity. While the district court had conceded that Florida Prepaid precluded Congress from using its Article I powers (the power to “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”) to take away a state’s sovereign immunity, it opined that abrogation of a state’s immunity could still be achieved under Section 5 of the Fourteenth Amendment, which authorizes Congress to “enforce” the commands of the due process clause. 

In reversing the district court’s ruling, the Fourth Circuit cited the requirement that a Section 5 abrogation be “congruent and proportional” to the Fourteenth Amendment injury.  Because the Supreme Court had previously rejected Congress’s attempt, in the Patent Remedy Act, to abolish the states’ immunity in patent infringement suits, the Fourth Circuit held that there was nothing to distinguish the situation in Allen in the context of copyright, which involved a statute with identical language, and related allegations of intellectual property infringement.  

In an opinion authored by Justice Kagan, the Court unanimously sided with the Court of Appeals, holding that “Florida Prepaid all but prewrote our decision today.”  The Court agreed that Article I did not give Congress the authority to enact the CRCA, per the reasoning in Florida Prepaid.  While Allen argued that the Court’s post-Florida Prepaid decision in Cent. Virginia Cmty. Coll. v. Katz, 546 U.S. 356 (2006) – abrogating sovereign immunity with respect to Article I’s bankruptcy clause – changed the analysis, the Court distinguished Katz as “a good-for-one-clause-only holding” that only concerned the bankruptcy clause.  

The Court’s central issue with the CRCA was informed by language found in Section 5 of the Fourteenth Amendment which requires that Congress enforce limitations on states’ authority when they violate due process with “appropriate legislation.”  The word “appropriate” in this context has been interpreted to mean that there must be “a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.”  Because, the Court explained, an infringement must be intentional, or at least reckless, to come within the reach of the due process clause, and because the CRCA would impermissibly abrogate states’ sovereign immunity for merely negligent infringement or honest mistakes (which would not violate due process, according to the Court), the CRCA was unconstitutional.  

Allen asserted that the CRCA’s legislative record – namely, a 1988 report by the then-Register of Copyrights arguing that individuals would suffer immediate harm if they were unable to sue infringing states in federal court – was enough to distinguish it from the Patent Remedy Act at issue in Florida Prepaid.  But the Court found the purported evidence of states’ infringement in that legislative record to be unimpressive because, despite undertaking an exhaustive search, the Register only came up with a dozen possible examples of state infringement, some of which were not corroborated.  The CRCA, the Court opined, was enacted to “guard against sloppiness,” not correct constitutional wrongs, and this justification was not sufficient to withstand constitutional scrutiny. 

Significantly, the Court did leave an opening for Congress to pass a valid copyright abrogation law and “effectively stop states from behaving as copyright pirates” or “digital Blackbeards” in the future, if it “appreciate[s] the importance of linking the scope of its abrogation to the redress or prevention of unconstitutional injuries – and of creating a legislative record to back up that connection.”

While the Allen decision certainly sets a limitation on an individual’s ability to prosecute certain copyright claims, it has left the door open for Congress to draft a statute abrogating state sovereign immunity where a state’s infringement is intentional or reckless.  Furthermore, because such a determination is often fact-specific, if such a statute is enacted, federal courts may see an increase in cases filed against states that proceed, at the very least, to the discovery stage.  But for now, copyright owners do not have any recourse against states for copyright infringement, which likely will cause concern to publishers and others in the creative community as to whether state governments will take advantage of the safe passage the Court has provided them at least in the short run.

Contractual Disruptions: How They Arise and How to Prepare

By Elizabeth Altman and Tyler Horowitz

With the recent spread of the novel coronavirus COVID-19 and its unprecedented precipitation of social-distancing, work-from-home policies, shelter-in-place orders, and limitations on foreign travel, many individuals may be questioning whether certain contractual obligations are excused. This article provides a primer on the contract concepts of force majeure, impossibility and impracticability, and related provisions that affect, and may in certain instances excuse, performance of contractual duties owing to changed circumstances outside any signatory’s control.

Force Majeure

A force majeure clause is a contract provision that excuses a party’s performance of its obligations under a contract when events beyond the party’s control make performance impossible. To invoke a contract’s force majeure clause, a party must typically demonstrate that (1) a disruptive event enumerated by the force majeure clause has occurred; (2) the risk of nonperformance was not foreseeable; and (3) that the event has rendered the party’s performance impossible.

A party looking to invoke a force majeure clause must follow several steps:

First, a party must examine the contract’s definition of what constitutes a “force majeure” event and demonstrate that the change in circumstances was included within the definition. Force majeure events will have been enumerated within a force majeure clause and generally include: Acts of God; severe acts of nature or weather events including floods, fires, earthquakes, hurricanes, or explosions; war; acts of terrorism; epidemics; acts of governmental authorities such as expropriation or condemnation; changes in laws and regulations; and strikes and labor disputes.

Determining whether a force majeure clause applies is a highly fact-intensive exercise, because whether a party is excused for non-performance stems from the specific contractual language used within an agreement. For example, some contracts’ force majeure provisions may specify disease, epidemics, or pandemics as cause for non-performance, while others may only refer to disease-related disruptions by reference to “Acts of God” or catch-all phrases such as “any event or circumstance beyond the reasonable control of the affected party.”

Where disease-related occurrences have been specifically enumerated, a party may find it easier to invoke its force majeure clause in the context of COVID-19. It may be more challenging where, instead, there is only catch-all language in place; however, a catch-all phrase, or similarly broad language (such as a force majeure clause that begins its list with “including, but not limited to”), may provide some protection, particularly if courts relax their traditional preference for excusing performance solely based on clearly enumerated circumstances, in response to an onslaught of COVID-19 related contract disputes. Additionally, where a party can point to a governmental restriction in place because of COVID-19, it may have additional grounds to defend nonperformance. 

Second, an affected party must demonstrate a causal link between the force majeure event and its failure to perform. In other words, a party’s performance must be impossible because of the changed circumstances surrounding the contract. For example, in light of COVID-19, the owner of a performing arts venue may successfully argue that recent government orders in his or her state have made it impossible to continue under contract with scheduled performances and obligations to performers, considering the widespread uptick in closures of non-essential businesses. On the other hand, should both parties to a contract be capable of conducting transactions online and/or having a history of remote online transactions, it may be more difficult to argue that COVID-19 has rendered performance impossible (at least without demonstrating other exigent circumstances).

Upon successfully invoking a force majeure provision, a party may either suspend performance or terminate the contract outright, depending on the scope of its force majeure clause. It is thus important to verify the terms of the clause, which may also dictate that force majeure coverage will only kick in after a certain period has elapsed, such as 90 days.

If the contract does not contain a force majeure clause, a party may turn to the common law defenses of impossibility or impracticability to excuse performance (though note that New York only recognizes impracticability in rare circumstances, such as in connection with sales of goods under the Uniform Commercial Code). A party may also invoke additional contract provisions where present, such as the “Material Adverse Effect” provision common to many commercial contracts.

Impossibility & Impracticability

Impossibility and impracticability exist where circumstances extraneous to a contract render a party’s performance either impossible or impractical. Although the contract itself was adequately formed and would otherwise maintain its binding effect, these defenses recognize that a post-formation change in circumstances has fundamentally altered the ability of the parties to perform under it. A party’s performance will be excused if the following elements are met:

  • An unforeseen event has occurred. Akin to the events enumerated in force majeure clauses, these may include natural disasters, strikes, and other major events.
  • The nonoccurrence of this event was a basic assumption of the contract. At the time of contracting, the parties did not foresee the event that has since occurred, regardless of whether it was theoretically “foreseeable”. This assumption of nonoccurrence need not be explicitly outlined within the contract, but must be generally apparent from the nature, terms, and purpose of the contract. Under the Uniform Commercial Code, which governs sales of goods, a “[d]elay in delivery or non-delivery in whole or in part by a seller . . . is not a breach of his duty under a contract for sale if performance as agreed has been made impracticable by the occurrence of a contingency the non-occurrence of which was a basic assumption on which the contract was made.” U.C.C. § 2-615. For example, this provision may apply in the event of a labor dispute where striking workers fail to deliver a shipment of the seller’s goods. In such cases, a seller must seasonably notify the buyer of the delay or non-delivery, and, where a seller may still partially perform, must allocate production and deliveries among customers in a “fair and reasonable” manner.
  • The effect of the event has rendered the party’s performance impossible or impracticable. The changed circumstance must be extreme, such that it is unduly burdensome or impossible for the party to comply as originally planned; where impossibility is concerned, under New York law, the subject matter of the contract must have been destroyed or the means of performance must have been rendered objectively impossible. The party seeking relief from its obligations under the existing contract must also show that it was not at fault in causing the event. The reasoning behind this requirement is clear: a party should not be able to take advantage of his or her own misconduct. Here, it is also important to determine how risk has been allocated between the parties under the contract. Even where the other requirements are met, if the adversely affected party assumed the risk of the occurrence of the changed circumstances during contract formation (impliedly or explicitly), it will not be able to invoke impossibility or impracticability. To gauge risk allocation, a party should examine the express language of the contract (i.e., what disruptive events the parties contemplated, and which party was to bear the associated loss and expense), or even the parties’ course of business and dealings. Industry customs may also provide clues to proper risk allocation. For example, industry custom in property rentals is for a premises owner to obtain casualty insurance rather than the party hosting its event on site. As such, risk for the loss of the property would flow more naturally to the owner.

Other Contract Clauses

Various additional contractual provisions may relate to an unexpected event like COVID-19.

  1. Material Adverse Change (MAC) Clause

Many commercial contracts include a material adverse change clause (otherwise known as “material adverse effect”). Where present, this clause could excuse performance or allow a party to suspend performance should a materially adverse change occur. Events constituting a materially adverse change are, as with force majeure provisions, commonly enumerated specifically within the contract and typically also involve wide-scale disruptions.

Historically, MAC clauses have been difficult to enforce, as courts are wary of excusing contractual performance for short-term changes in circumstances, but as is possible with force majeure and related defenses, courts may shift their stance in the coming months. For example, following the September 11, 2001 attacks, New York courts were more amenable to viewing declining rental prices in Manhattan as grounds to declare a material adverse change (See In re Lyondell Chem. Co., 567 B.R. 55, 123 (Bankr. S.D.N.Y. 2017), aff’d, 585 B.R. 41 (S.D.N.Y. 2018) (citing River Terrace Assocs., LLC v. Bank of N.Y., 10 Misc. 3d 1052(A), 2005 WL 3234228 (N.Y. Sup. Ct.), aff’d, 23 A.D.3d 308 (N.Y. App. Div. 2005))). Further, New York courts have allowed commercial parties to cease contractual performance based on demonstrated extensive financial losses during the pendency of a merger (see Katz v. NVF Co., 100 A.D.2d 470, 471 (N.Y. App. Div. 1984)).

  • Covenants

Commercial contracts commonly contain covenants obligating parties to undertake or refrain from certain behavior. While it is unlikely that parties would have allocated obligations or risk regarding COVID-19 in a covenant, it is worth revisiting covenants within a contract to gauge whether they will affect or be affected by current circumstances. For example, many agreements include covenants obligating parties to provide notice that they are invoking force majeure or that material events have occurred that could give rise to litigation or loss beyond the ordinary course of business.

  • Termination Provisions

Even if parties may not utilize force majeure or other contractual provisions to justify non-performance under a contract, there may be termination provisions that kick in based on the occurrence of certain contingencies, whether at-will or otherwise, such as for late delivery or a breach of a “time is of the essence” clause. It is worth viewing any such provisions within the context of the larger defenses of impossibility, impracticability, and force majeure excusal of nonperformance, in case the other party nonetheless attempts to invoke these doctrines to negate invocation of a termination provision.

This is not the law’s first brush with the unexpected, and although this is a time of wide-reaching uncertainty, woven into contract law, particularly, is a system to guide parties through the serious impacts that unexpected events may have. Our team at Cowan, DeBaets, Abrahams & Sheppard LLP will continue to provide updates on legal developments related to the present circumstances and we are available should you request further or specific guidance.

CDAS Mourns the Passing of Author and Illustrator Tomie dePaola

Our sincere condolences go out to Tomie dePaola’s close colleagues, including literary agent Doug Whiteman and personal assistant Bob Hechtel, his friends, and generations of fans throughout the world. We know his legacy will live on in the imaginations of young readers everywhere who are charmed by his words and images.

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