What De La Soul and Andy Warhol knew but the Court doesn’t understand.
What De La Soul and Andy Warhol knew but the Court doesn’t understand
I n 1989, three young men from Long Island, N.Y., released an album that would forever transform music. Along with producer Prince Paul, the hip-hop trio known as De La Soul pioneered a new sound comprising samples from other artists, weaving preexisting clips in and out to create innovative, original songs.
The death this year of one of the group’s members, David Jolicoeur (a.k.a. “Trugoy the Dove”) brought renewed interest in how they pulled off their aural magic. Their song “Eye Know” mashes together music samples from the Mad Lads’ “Make This Lady Mine,” Steely Dan’s “Peg,” Otis Redding’s “(Sittin’ on) the Dock of the Bay,” and Lee Dorsey’s “Get Out of My Life, Woman,” creating an entirely new canvas of sound.
In effect, they repackaged existing art to make a masterpiece all their own. The 1989 album 3 Feet High and Rising went on to be named the 103rd greatest album of all time by Rolling Stone, and in 2010 the Library of Congress added the album to the National Recording registry, reserved for albums “named culturally, historically, or aesthetically significant.”
But the album was also beset by legal troubles, given the amount of original work from which it sampled. For years, 3 Feet High and Rising was withheld from streaming services because the samples weren’t cleared for use by the original artists. Given the harassment the group endured because of its borrowings, probably no album like it will ever be made again. (One notable exception: Just three months after it came out, the Beastie Boys released their masterwork, Paul’s Boutique, which contained 105 samples.)
The issue of borrowing original art and transforming it into another work conveying a new “meaning or message” was at the heart of a much-publicized case before the U.S. Supreme Court recently. (NR’s art critic, Brian T. Allen, wrote about it here.) At issue was a 1981 photograph of Prince taken by Lynn Goldsmith, which Andy Warhol then used in the making of a piece of art. The Court debated whether Warhol’s estate had the right to sell his artwork — whether Warhol had sufficiently transformed the photograph to call it his own artwork — without paying the original maker.
After taking the picture, Goldsmith was paid $400 by Vanity Fair magazine for the right to use it once. The magazine passed it on to Warhol, who altered the photo before it ran in its pages. Warhol then created a series of silk screens using the photo as the original source; one of them ran in Vanity Fair after Prince’s death in 2016. Warhol’s estate was paid $10,000 to use Orange Prince, the silk screen he had created. Upon seeing the image in the magazine, Goldsmith claimed that Warhol’s estate had violated her copyright.
The Court sided with Goldsmith, 7–2. In a bitter, terse opinion by Justice Sonia Sotomayor, writing for the majority, and an equally vinegary dissent by Justice Elena Kagan, the two debated what constitutes “art” and when it is permissible to create and sell new art using pieces of existing art without acknowledgment of or compensation of the original maker. Sotomayor wrote that the “purpose” of the Orange Prince image is “substantially the same as that of Goldsmith’s original photograph,” and Goldsmith’s copyright had therefore been violated.
“Both are portraits of Prince used in magazines to illustrate stories about Prince,” she wrote, drawing a connection between the similar commercial purposes. (An amicus brief was filed by Dr. Seuss Enterprises, presumably wanting to thwart a Cat in the Hat Storms the U.S. Capitol illustrated book.)
Sotomayor further argued that Warhol’s more famous silk screens featuring Campbell’s soup cans were not a copyright violation because the artwork used on the soup cans served a different purpose.
“The purpose of Campbell’s logo is to advertise soup,” Sotomayor wrote. “Warhol’s canvases do not share that purpose. Rather, the Soup Cans series uses Campbell’s copyrighted work for an artistic commentary on consumerism, a purpose that is orthogonal to advertising soup. The use therefore does not supersede the objects of the advertising logo.”
Kagan, having none of this nonsense, fired back, arguing that Warhol’s artistic treatment of photos of pop-culture figures such as Prince and Marilyn Monroe changed the meaning of the images. For instance, citing an art expert, she wrote that Warhol’s “flattened, cropped, exotically colored, and unnatural depiction of Prince’s disembodied head” sought to “communicate a message about the impact of celebrity” on contemporary life.
“Drawing a distinction between a ‘commentary on consumerism’ — which is how the majority describes his soup canvases, and a commentary on celebrity culture, i.e., the turning of people into consumption items, is slicing the baloney pretty thin,” she wrote.
Though they were only two, the dissenters — Kagan and Chief Justice John Roberts — have the better argument, pushing for a more permissive copyright law.
If the majority’s strict copyright regime had been in place in 1989, we likely would never have been treated to the best albums in the career of De La Soul or the Beastie Boys; both sample-heavy works would have been strangled in the crib.
In the early days of internet video, YouTube users would have been denied perhaps one of the funniest videos of all time, Canadian artist Alanis Morissette’s slow-jam version of the Black Eyed Peas’ incandescently moronic song “My Humps.” Morissette’s version turns the party anthem into a solemn ballad, highlighting the stupidity of lyrics like “you love my lady lumps.” It’s a word-for-word copy of an original song whose meaning is completely transformed by how it is performed.
Perhaps more puzzling is that the Court had previously contemplated copyright law in the music space, specifically when rappers 2 Live Crew commandeered Roy Orbison’s classic song “Pretty Woman” to make their own song denigrating both excessively hairy and bald-headed women. But in that case, the Court let 2 Live Crew off the hook, deeming their song parody, one of the permissible uses of others’ work. (Exceptions are made for other types of use also, such as for educational purposes.)
Of course, it wasn’t exactly clear what 2 Live Crew was “parodying” — they took a classic guitar riff, made it into a song, and tried to make money off that song, just as Orbison made money off it. By the Court’s standard in the Warhol case, the uses of the original “Pretty Woman” and the rap remake were virtually the same — to make music that sells.
This is another bone Sotomayor et al. picked with the Warhol estate: The majority argued that once the artist begins to sell the newly created piece of art, the artist’s fair-use protections begin to fade away. Kagan called this the majority’s “commercialism-über-alles” view of the artist protections provided in the law.
But Kagan smacked this argument aside as well, noting that almost every artist creates in order to make a living. She quotes Samuel Johnson, who once said, “No man but a blockhead ever wrote . . . except for money.”
Limits on selling art created by borrowing the works of others has likely hampered the career of mash-up musicians like Gregg Gillis, who operates under the name of “Girl Talk.” A decade and a half ago, Gillis would ingeniously mix together popular songs, creating an incredibly inventive quilt of music that was both familiar and altogether new. In certain songs, Gillis would weave together Joe Jackson’s “Steppin’ Out” and Lil Wayne’s “A Milli,” or Neil Diamond’s “Cherry, Cherry” with Lil’ Jon’s “Snap Yo Fingers,” or Nirvana’s “Lithium” with Salt-N-Pepa’s “Push It.”
His albums are not only impossibly fun — some of the song pairings will make any listener laugh out loud — but each mix Gillis throws at a listener changes the way they will listen to each sample forever.
But copyright law has hampered Gillis’s career. He has always maintained that what he did was legal under fair-use doctrine, but the New York Times Magazine called him a “lawsuit waiting to happen.” Consequently, he began giving his music away for free and stopped making new mash-ups altogether in 2010. House parties have since suffered as a result.
“Let’s be honest, artists don’t create all on their own,” Kagan wrote.
They cannot do what they do without borrowing from or otherwise making use of the work of others. That is the way artistry of all kinds—visual, musical, literary—happens (as it is the way knowledge and invention generally develop). The fair-use test’s first factor responds to that truth: As understood in our precedent, it provides ‘breathing space’ for artists to use existing materials to make fundamentally new works, for the public’s enjoyment and benefit.
Kagan is right: Copyright law exists to prevent others from providing art in a way that would hamper sales of that art, thus harming the original artist. But nobody is refusing to buy Steely Dan albums because De La Soul used a clip of their music in a song; instead, the sample might turn more people on to Steely Dan’s classic album Aja, juicing sales.
“Nothing comes from nothing, nothing ever could,” said songwriter Richard Rodgers, as quoted by Kagan in her dissent. She further noted that “the Great American Song book arose from vaudeville, ragtime, the blues, and jazz,” acknowledging that true art often arises from appropriation of existing styles and works.
“Immature poets imitate; mature poets steal,” wrote T. S. Eliot in The Sacred Wood: Essays on Poetry and Criticism. “Bad poets deface what they take, and good poets make it into something better, or at least something different.”
Especially in the internet age, where photos and videos are constantly grabbed and repurposed, the artistic churn in America depends on sharing. Let the mature poets steal; surely there is another Warhol among them.