Kagan, Sotomayor write dueling opinions in SCOTUS fair-use ruling against Andy Warhol Foundation
U.S. Supreme Court Justice Elena Kagan complained in a dissent Thursday that a majority ruling by liberal colleague Justice Sonia Sotomayor had adopted a “posture of indifference” and left “in shambles” part of a fair-use test used in copyright cases.
The majority decision by Sotomayor was a win for rock-star photographer Lynn Goldsmith, who argued that a print by artist Andy Warhol based on her photo of singer Prince had infringed her copyright. Sotomayor was joined by six other justices.
The majority included the third liberal justice, Justice Ketanji Brown Jackson, who also joined a concurrence by Justice Neil Gorsuch. The concurrence cited “contextual clues” in the copyright statute that support the majority’s reading of the law.
The liberal split comes during a Supreme Court term in which the justices have not been splitting strictly along ideological lines.
Sotomayor’s majority opinion considered the first factor of a four-part fair-use test used to decide claims of copyright infringement. That factor requires courts to consider “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.”
That factor favors Goldsmith, the majority held.
Goldsmith had licensed her photo to Vanity Fair in 1984 for use as an “artist reference” that would illustrate its story about Prince. Goldsmith agreed to a one-time use of the photo and was paid $400. Warhol made a silkscreen using the photo that was used in the article.
“Warhol, however, did not stop there,” Sotomayor wrote. “From Goldsmith’s photograph, he derived 15 additional works. Later, the Andy Warhol Foundation for the Visual Arts Inc. … licensed one of those works to Condé Nast, again for the purpose of illustrating a magazine story about Prince. AWF came away with $10,000. Goldsmith received nothing.”
Sotomayor referred to the second artwork as Orange Prince. It was licensed to Condé Nast in 2016.
When Goldsmith told Condé Nast that she thought that the photo infringed her copyright, the AWF sued Goldsmith and her agency for a declaratory judgment that the artwork was a transformative use of the photo that protected it from a copyright claim.
The Supreme Court majority stressed that it was considering only the use of Goldsmith’s photo in the Warhol print sold to the second publication, Condé Nast.
“In particular, the court expresses no opinion as to the creation, display or sale of any of the original Prince Series works,” Sotomayor wrote.
Sotomayor said there are two important points to consider in fair-use cases. The first is whether a use is commercial, rather than nonprofit, in nature. The second is whether the use shares the purpose of the copyrighted work or whether it has a distinct purpose.
“Taken together, these two elements—that Goldsmith’s photograph and AWF’s 2016 licensing of Orange Prince share substantially the same purpose, and that AWF’s use of Goldsmith’s photo was of a commercial nature—counsel against fair use, absent some other justification for copying,” Sotomayor wrote.
Sotomayor distinguished Warhol’s use of Campbell’s Soup cans for a series of canvases. They used Campbell’s copyrighted work “for an artistic commentary on consumerism, a purpose that is orthogonal to advertising soup,” Sotomayor wrote.
Kagan’s dissent was joined by Chief Justice John Roberts.
“It is not just that the majority does not realize how much Warhol added; it is that the majority does not care,” Kagan wrote. “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, Kagan said, the “purpose and character” of a copier’s use was evaluated by asking whether the new work adds “something new, with a further purpose or different character,” which alters the original with a “new expression, meaning or message.”
“But today’s decision—all the majority’s protestations notwithstanding—leaves our first-factor inquiry in shambles,” Kagan said.
Hat tip to SCOTUSblog.
ABAJournal.com: “Supreme Court will consider whether Andy Warhol’s Prince paintings violate copyright law”
ABAJournal.com: “Supreme Court will hear photographer’s copyright dispute over Andy Warhol’s Prince portraits”