On today’s Supreme Court ruling in Andy Warhol Foundation for the Visual Arts v. Goldsmith: I’m not well enough versed in the case, or in copyright law more generally, to have a firm view whether it’s Justice Sotomayor’s majority opinion or Justice Kagan’s blistering dissent that gets the law right. But Kagan’s dissent (which only the Chief joined) sure is fun to read, and it also illustrates what should already have been obvious: she is a superb writer. The various swipes that Sotomayor and Kagan take at each other—mostly but not entirely in footnotes—are also noteworthy.
There are lots of passages from Kagan’s dissent that you’ll enjoy. I’ll limit myself here to these excerpts from her opening:
You’ve probably heard of Andy Warhol; you’ve probably seen his art. You know that he reframed and reformulated—in a word, transformed—images created first by others. Campbell’s soup cans and Brillo boxes. Photos of celebrity icons: Marilyn, Elvis, Jackie, Liz—and, as most relevant here, Prince. That’s how Warhol earned his conspicuous place in every college’s Art History 101. So it may come as a surprise to see the majority describe the Prince silkscreen as a “modest alteration[]” of Lynn Goldsmith’s photograph—the result of some “crop[ping]” and “flatten[ing]”—with the same “essential nature.” Or more generally, to observe the majority’s lack of appreciation for the way his works differ in both aesthetics and message from the original templates. In a recent decision, this Court used Warhol paintings as the perfect exemplar of a “copying use that adds something new and important”—of a use that is “transformative,” and thus points toward a finding of fair use. That Court would have told this one to go back to school.
What is worse, that refresher course would apparently be insufficient. For it is not just that the majority does not realize how much Warhol added; it is that the majority does not care. In adopting that posture of indifference, the majority does something novel (though in law, unlike in art, it is rarely a good thing to be transformative). Before today, we assessed “the purpose and character” of a copier’s use by asking the following question: Does the work “add[] something new, with a further purpose or different character, altering the [original] with new expression, meaning, or message”? When it did so to a significant degree, we called the work “transformative” and held that the fair-use test’s first factor favored the copier (though other factors could outweigh that one).
But today’s decision—all the majority’s protestations notwithstanding—leaves our first-factor inquiry in shambles. The majority holds that because Warhol licensed his work to a magazine—as Goldsmith sometimes also did—the first factor goes against him. It does not matter how different the Warhol is from the original photo—how much “new expression, meaning, or message” he added. It does not matter that the silkscreen and the photo do not have the same aesthetic characteristics and do not convey the same meaning. It does not matter that because of those dissimilarities, the magazine publisher did not view the one as a substitute for the other. All that matters is that Warhol and the publisher entered into a licensing transaction, similar to one Goldsmith might have done. Because the artist had such a commercial purpose, all the creativity in the world could not save him. [Citations omitted, paragraph break added.]
I will add that I find it odd that the Court granted certiorari, and decided, only in which direction the first of four factors relevant to the defense of fair use cuts. If the Court is interested in providing useful guidance on the fair-use defense, it would have been far more helpful to decide whether the defense prevailed.