Does SCOTUS Get Art?

Technically, the question is whether Andy Warhol’s changes to Lynn Goldsmith’s photograph of Prince was fair use, or a violation of copyright. To the consternation of dissenting justice Elena Kagan, the 7-2 majority went with the opinion written by Sonia Sotomayor that it was not fair use. It was not art.

And it was pure Warhol.

But below the surface of the decision, it more reflects what Warhol did with his rendition of Goldsmith’s photo than his turning Prince into standard Warhol style.

When Vanity Fair ran an article about the musician Prince in 1984, it commissioned pop artist Andy Warhol for a feature image. Using a 1981 black-and-white photo as a reference, Warhol created a silkscreen portrait of just the singer’s face, cropped, flattened, and colored with heavily saturated purple. Photographer Lynn Goldsmith, who took the original photo, granted a one-time license to use the image for the article in exchange for a source credit and $400.

So far, little more than a lousy licensing deal by Goldsmith’s people.

After Prince died in 2016, Vanity Fair prepared a special issue to commemorate his life. For the cover of the magazine, it licensed a Warhol variation from the Prince Series, Orange Prince, from the AWF for $10,000, without involving Goldsmith. Goldsmith says she first became aware of the Prince Series with the release of the commemorative issue. When Goldsmith told the AWF that Orange Prince infringed on her intellectual property and she was considering legal action, the AWF sued her first, seeking a declaratory judgment that the image was “fair use” and did not constitute infringement.

Another instance of “be careful what you ask for,” as the Supreme Court didn’t share the Andy Warhol Foundation’s certainty that standard Andy was fair use.

Fair use is a legal doctrine that provides for the unlicensed use of copyrighted material under certain conditions. In this case, the crux of the argument on each side involved whether Warhol’s changes to the source photo were sufficiently “transformative,” which the Supreme Court has previously determined means that it “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”

This definition of fair use offers almost no meaningful guidance as to what is sufficiently “transformative” as to invoke the fair use exception to copyright. But it’s not as if Andy Warhol isn’t sufficiently famous and adored for doing pretty much exactly what he did to the Prince photo to everyone from Marilyn Monroe to Mao. Does this mean Warhol is not an artist, but a serial copyright infringer?


Andy Warhol’s Mao hanging at Casa de SJ.

It wasn’t just the fact that Warhol’s “art” was to colorize, flatten and mark up other people’s images, but that when Warhol’s use of other people’s images precluded the other person from selling their images because they weren’t as famous as Warhol or lacked his panache that it became a problem.

AWF contends that the Prince Series works are “transformative,” and that the first fair use factor thus weighs in AWF’s favor, because the works convey a different meaning or message than the photograph. But the first fair use factor instead focuses on whether an allegedly infringing use has a further purpose or different character, which is a matter of degree, and the degree of difference must be weighed against other considerations, like commercialism. Although new expression, meaning, or message may be relevant to whether a copying use has a sufficiently distinct purpose or character, it is not, without more, dispositive of the first factor. Here, the specific use of Goldsmith’s photograph alleged to infringe her copyright is AWF’s licensing of Orange Prince to Condé Nast. As portraits of Prince used to depict Prince in magazine stories about Prince, the original photograph and AWF’s copying use of it share substantially the same purpose. Moreover, AWF’s use is of a commercial nature.

This gave rise to what Josh Blackman characterized as a “twitter flame war” in the majority and dissenting opinions.

@Sonia: Apparently @Elena took an art history class in college and an IP seminar in law school and thinks she’s an expert on everything. But we are following *actual* law here.

@Elena: Did you actually read Campbell and Google? Did you actually see Warhol’s artwork? Warhol is not an Instagram filter. #NothingComesFromNothing

@Sonia: We are judges, not art critics. Goldsmith’s photo and Warhol’s artwork serve the same essential purpose–a photograph in a magazine article. #NoFairUse

@Elena: They’re not similar. #Disembodied #Rotated You doctored the images to make them look similar in #Figure6! #WarGold

@Neil and @KBJ: You two need to take a Twitter timeout.

@Sonia: Elena is focusing on a case that is not even before the Court! #SleightOfHand #Misstatements #Exaggerations

@Elena: Sonia’s opinions is getting ratio’d because of its ipse dixit. #SelfRefuting

@Sonia: And, by the way, I actually litigated intellectual property issues. Did you ever litigate anything @Elena?

@TheChief: Yeah, I want to get in on this. I’ll join Elena’s opinion which gratuitously attacks a member of my Court. #Institution

Kagan’s dissent did indeed go viral, not for its reasoning but for the spanking she gave in footnote 2.

One preliminary note before beginning in earnest. As readers are by now aware, the majority opinion is trained on this dissent in a way majority opinions seldom are. Maybe that makes the majority opinion self-refuting? After all, a dissent with “no theory” and “[n]o reason” is not one usually thought to merit pages of commentary and fistfuls of comeback footnotes. Ante, at 36. In any event, I’ll not attempt to rebut point for point the majority’s varied accusations; instead, I’ll mainly rest on my original submission. I’ll just make two suggestions about reading what follows. First, when you see that my description of a precedent differs from the majority’s, go take a look at the decision. Second, when you come across an argument that you recall the majority took issue with, go back to its response and ask yourself about the ratio of reasoning to ipse dixit. With those two recommendations, I’ll take my chances on readers’ good judgment.

To be fair, there is little Warhol did to someone else’s image that couldn’t be done today with a filter and some sharpies. But then, it wouldn’t be done by Warhol, and Warhol was a famous artist. Had Warhol not taken Lynn Goldsmith’s photograph and Warholized it, would Vanity Fair have wanted it, used it? VF wasn’t doing a retrospective on Warhol, but on Prince, and the best image of Prince was created by Goldsmith, which is why Warhol used it to do his voodoo.

12 thoughts on “Does SCOTUS Get Art?

  1. Guitardave

    “Plagiarism is the root of all art.”
    Arlo Guthrie

    “Calling Warhol an artist is like calling an interior designer a home builder.”
    (Nice album cover, eh?)

  2. Mark Schirmer

    The value of a”name” brand. That can’t be the standard. That means a use by a famous person – or to be fair, corporation – that takes a copyrighted article, photo or other item and with minimal changes calls it brand Y’s item would not infringe on copyrights. The rich and famous excepton?

    Remember, they UNDERSTOOD a one use license was required. Draft better contracts.

    1. phv3773

      Agreed, Warhol exceeded the one-time use a agreement, although I think my subjective feeling may be largely influenced by the power balance. The more powerful party is getting rich with the use of the less powerful party’s creation. “Stinks to be you, kid.”

      But how would I feel if, say, a small time artist tried to make a little money with work based on a Disney image?

  3. Hal

    W/in the past few days, I heard someone interviewed about one of Warhol’s Campbell’s Soup can prints.

    “What does that look like to you?”, the interviewer asked the gallery owner.

    “Any answer, besides ‘a soup can’, is pretentious bullshit” I thought to myself as the gallery owner proceeded to spew pretentious bullshit.

  4. Hunting Guy

    Andy Warhol.

    “I loved working when I worked at commercial art and they told you what to do and how to do it and all you had to do was correct it and they’d say yes or no. The hard thing is when you have to dream up the tasteless things to do on your own.”

  5. Mike V.

    IANAL, but to me this isn’t about Fair Use. Rather, it is about contract law. Warhol obtained a one time license to use the photo for the original VF issue. To use the image any further would, to me, require a new license, with terms of use and payment to be negotiated prior to the actual use.

    I do have to admit that seeing 2 of the Court’s most liberal members throwing snark at one another is a popcorn worthy moment.

  6. Kacie

    Vanity Fair and Warhol acknowledged Goldsmith’s intellectual property rights in her 1981 photograph in 1984. Then Campbell v. Acruff Rose Music came along in 1994 to decimate artists’ rights with the primacy of the concept of transformative use., just in time for the internet. I don’t blame AWF in attempting to get away with it. Everyone promiscuously rips off artist now, per Campbell. Now this decision has restored balance to fair use analysis.

  7. B. McLeod

    Probably a lot of people have thought that Warhol’s work is not art, but more an illustration of the pretentiousness of people in the “art” business. Finally, someone has managed to get the question to the Court in a posture wherein they would decide it.

    This is not surprising, as we are in a cycle where people with various causes have been trying to use the courts to conclusively determine the correctness of various opinions about issues such as climate change and gender. It is simply a matter of time until the Court will be deciding questions on the greatest athletes of all time and whether King Kong could actually defeat Godzilla. Having the Court come down for the answer “experts” think is wrong is part of the fun of taking such issues to the Court.

  8. RBM

    With AI ramping up to replace doctors and lawyers, it is refreshing to have a case illustrating why we will still occasionally need a judge.


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