NCAC has obtained permission to share the following op-ed from artnet news, which was originally published on May 25, 2023.

ARTNET NEWS OP-ED 

Why the Supreme Court’s Decision in the Andy Warhol Copyright Case Shows the Dangers of a Sympathy Vote

The former director of the ACLU’s Arts Censorship Project on the implications of ‘Warhol Foundation v. Goldsmith.’

By Marjorie Heins, May 25, 2023

On May 18, the Supreme Court released a strange decision. On the one hand, it said the Andy Warhol Foundation’s licensing of a silkscreened image to the magazine chain Condé Nast violated photographer Lynn Goldsmith’s copyright in her photo of the rock musician Prince—a photo on which Andy Warhol had based his silkscreened image. But on the other hand, the court said Warhol’s initial creation of the silkscreen might have been “fair use” and thus not copyright infringement. How could this be? One minute, an artwork may be fair use, but the next minute, if you license it to a magazine, it’s not.

What was really going on to account for this paradoxical result? Reading beyond the legal technicalities of Justice Sonia Sotomayor’s opinion for the court in Andy Warhol Foundation for the Visual Arts v. Goldsmith, one can discern a sympathy for Goldsmith, the working journalist, and a resentment of the Warhol Foundation, with its aura of art world glamor and privilege. The sympathy and the resentment are easy to understand, but they led the court’s seven-member majority into a legal quagmire and a disastrously wrong result.

To explain: Andy Warhol was one of the most celebrated artists of the twentieth century, and the Andy Warhol Foundation inherited his very high-priced, high-status body of art. Lynn Goldsmith is a photojournalist working to make a living through sale and licensing of her celebrity photos. Sotomayor’s opinion emphasizes the inequality.

Back in 1984, as Sotomayor recounts, Vanity Fair paid Goldsmith $400 for a one-time license to use her photo of Prince. The magazine then commissioned Andy Warhol to transform Goldsmith’s photo in his characteristic style of reformatting, silkscreening in often garish colors, then painting on the silkscreened print. Warhol subsequently made a “Prince Series” of 14 prints and two drawings, all variations of the Goldsmith photo. In 2016, after Prince’s death, Condé Nast paid the Warhol Foundation $10,000 to reproduce an image from the Prince Series. Goldsmith wasn’t notified and got nothing. Sotomayor’s opinion mentions this three times, reminding readers that licensing is “how photographers like Goldsmith make a living.”

Meanwhile, the Warhol Foundation wasn’t exactly short of funds. It wouldn’t have hurt to give Goldsmith some of that $10,000, so one might think, as a matter of equity. Indeed, not only is Goldsmith the underdog, but she’s an admirable person—“a self-starter,” notes Sotomayor, who became “’a leading rock photographer’ in an era “when women on the scene were largely dismissed as groupies” (quoting from a review of a book of Goldsmith’s photos).

The Warhol Foundation, by contrast, is guilty of super-rich art world hubris, or so Sotomayor implies. She accuses Justice Elena Kagan, who wrote an impassioned dissent, of arguing for fair use based on “a single fact: ‘It’s a Warhol.’” Goldsmith’s works are entitled to copyright protection “even against famous artists,” Sotomayor remarks; there’s no “celebrity-plagiarist privilege” in copyright law.

Obviously, the sympathy vote goes to Goldsmith.

But here’s the problem. If Warhol’s Prince Series was sufficiently “transformative”—to use the term that frequently justifies a fair-use defense—then the works in the Prince Series are fair use and not copyright infringement. If they’re not copyright infringement, then they’re independent creative works that can be used as the artist sees fit. They don’t stop being fair use and turn into illegal copying because their creator sells or licenses them for profit. At least they shouldn’t. Sotomayor’s now-you-see-it, now-you-don’t approach to fair use makes everything uncertain in the world of art where appropriation and transformation are common practices that have gone on for centuries.

Losing fair-use status when a work is used for commercial purposes means losing it for most purposes that matter to artists, as Justice Kagan’s dissent points out. Not to mention that it would be (and will be, under the court’s decision) a practical nightmare to try to figure out when a new, transformative work that is not infringing suddenly becomes infringing by virtue of how it’s displayed, sold, or licensed for reproduction.

The fair use defense under copyright law consists of four factors, only the first of which was at issue in this case: “the purpose and character” of Warhol’s use of Goldsmith’s photo. The Warhol Foundation (and Kagan in dissent) argued that the character of Warhol’s silkscreened images was clearly transformative, both stylistically and in terms of its meaning. Sotomayor twisted this question of “purpose and character” to look not at Warhol’s work, a print from the Prince Series, but at one specific use of it: magazine licensing. The court “expresses no opinion,” she said, “as to the creation, display, or sale of any of the original Prince Series works,” which could well be fair use. A concurring opinion by Justice Neil Gorsuch agreed that under the first fair-use factor, display of Warhol’s silkscreens “in a nonprofit museum or a for-profit book commenting on 20th-century art … might well point to fair use.”

So now, evidently, artists, dealers, curators, collectors, and everyone else in the art world must make a case-by-case guess whether a creative work that started out as fair use will lose that defense under copyright law depending on how it’s shown, sold, or marketed. And of course, if licensing a work like Warhol’s silkscreen image is copyright infringement, it’s not just a question of paying the original photographer a share of the licensing fee. Goldsmith is now entitled, as copyright owner, to refuse permission to license Warhol’s Prince images at all—that is, to remove them from the marketplace. This is a drastic outcome for art, and not just the well-heeled Warhol Foundations of the world.

Unfortunately, sympathy votes sometimes make for very bad law.