Last week, the Supreme Court heard oral argument about an Andy Warhol illustration of Prince, which he based on a photograph by Lynn Goldsmith—a fun copyright case that appeared to be a welcome respite from the gloom surrounding the Court, amid its overruling of abortion precedents last term, its likely overruling of affirmative-action precedents this term, and the general pall on its legitimacy. Justice Clarence Thomas let it be known from the bench—to ribbing from Justice Elena Kagan and laughter from the audience—that he was a Prince fan in the nineteen-eighties. Chief Justice John Roberts name-dropped the artists Piet Mondrian and Josef Albers. But the contrast between the case, in which Warhol is accused of changing too little of Goldsmith’s work, and the Court itself, which is lately accused of changing far too much, created a tense sort of levity. The Court’s grappling with Warhol’s cultural criticism may end up being its most revealing comment this term on the nature of its own role in contemporary culture.
In 1981, Goldsmith—whose work as a rock-and-roll photographer included portraits of Bob Dylan, Mick Jagger, Bruce Springsteen, and Bob Marley—was assigned to shoot photos of Prince for Newsweek. Her closeup portraits were not published, but she kept them in her files. Three years later, after “Purple Rain” was released, Vanity Fair wanted an image of Prince to accompany an article, “Purple Fame,” about his megastardom. Warhol was commissioned to create the illustration. For four hundred dollars, the magazine licensed Goldsmith’s portrait of Prince as an “artist reference” for this assignment, and it agreed to credit her with the source photograph for the illustration. Using the photo, Warhol created the Prince Series: fourteen silkscreen prints and two pencil drawings. One of the prints, “Purple Prince,” was published alongside the article in Vanity Fair.
When Prince died, in 2016, Condé Nast (the parent company of Vanity Fair and The New Yorker) wanted an image of him for the cover of a single-issue commemorative magazine called “The Genius of Prince.” It paid more than ten thousand dollars to the Andy Warhol Foundation, which holds the artist’s copyrights, for a license to use a different print from the series, “Orange Prince.” The image was published without any credit or payment to Goldsmith, who—seeing it for the first time and recognizing her work—claimed copyright infringement. The Warhol Foundation asserted that Warhol’s use of her photo was “fair use,” in which copying that would otherwise infringe an author’s copyright is allowed, “for purposes such as criticism, comment, news reporting, teaching . . . scholarship, or research.” So, for example, under fair use, Condé Nast wouldn’t have needed a license to use the images of Prince discussed in this article, for the purpose of commentary and reporting on a case about those images. Whether the Prince Series is fair use turns on whether Warhol “transformed” the photo on which he relied—and the answer to that turns on what exactly “transformative” means.
The legal narrative of the case is that Warhol’s work (right) conveys a meaning or message different from Goldsmith’s photo (left). Left: Photograph © Lynn Goldsmith; Right: Art work from The Andy Warhol Foundation
The last time the Supreme Court substantially addressed fair use in an artistic context was in Campbell v. Acuff-Rose Music, in 1994, about 2 Live Crew’s “Pretty Woman,” which was based on Roy Orbison’s rock ballad. The Court held that 2 Live Crew’s song was fair use because it was a “parody” that ridiculed Orbison’s song, commenting on and criticizing it. In the opinion, Justice David Souter wrote that 2 Live Crew “juxtaposes the romantic musings of a man whose fantasy comes true, with degrading taunts, a bawdy demand for sex, and a sigh of relief from paternal responsibility”—commenting on “the naivete of the original of an earlier day.” Souter, who is famously unenthusiastic about pop culture and highly unlikely to have come across 2 Live Crew’s rendition himself, pointedly added that the Court would “not take the further step of evaluating its quality.” But, as much as judges deny it, evaluating a work’s quality is often intertwined with interpreting its meaning.
In Campbell, Souter wrote that the central question for assessing whether the second work is “transformative” is whether it “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” The Warhol Foundation wants the Court to stick closely to those words. It asserts that Goldsmith’s naturalistic black-and-white photo depicts Prince as “fragile and vulnerable,” and seeks to “humanize” him. By contrast, the Foundation argues, Warhol’s silkscreen process created “a flat, impersonal, disembodied, mask-like appearance” that comments on the dehumanizing nature of celebrity. In other words, Goldsmith depicts Prince intimately but Warhol conveys an image of an icon.
Goldsmith does not dispute the Foundation’s reading of the two works, but she takes issue with the idea that merely adding a new meaning or message renders a work “transformative” for copyright purposes. That definition is too vague, she argues, given that “artists, critics, and the public often disagree about what art signifies.” “Copyists could always assert a different intent and claim fair use,” she submits. Goldsmith instead proposes interpreting Campbell to say that, for fair use to apply, the copying of a work must be necessary for an artist to express his or her meaning or message. She focusses on an aspect of Campbell that suggested that 2 Live Crew needed to copy the original in order to comment on it. Warhol’s images of Prince surely provide comment—about Prince, fame, the dehumanizing culture of celebrity—but they did not require copying Goldsmith’s original work.
Judging from oral argument, the Justices seemed to lean toward deciding for Goldsmith. Several of them seemed particularly concerned that deciding against her might result in upending the general understanding that an adaptation of a book into a movie or a television show is not fair use and requires payment to the author, even though Hollywood often adds new meanings—including altered plotlines, themes, and characters—to the original material. If those changes were considered “transformative,” the entire industry’s assumption that book authors are to be paid for use of their intellectual property would be disrupted, giving Hollywood a windfall. But, given Campbell’s words, it is more difficult for the Court to decide in favor of Goldsmith, because the Court would have to depart somewhat from Campbell and say something rather “original” to this case. Unlike artists, judges are supposed to strive to avoid “originality” and follow precedent. But, in order to both follow precedent and side with Goldsmith, the Court will have to engage in some transformation of the meaning of its earlier case.
Copyright cases concerning artistic works always bring out anxieties about judges, whose legal training seemingly puts them at a remove from art criticism. Justice Samuel Alito aired the obligatory worry, saying, “Maybe it’s not so simple, at least in some cases, to determine what is the meaning or the message of a work of art. There can be a lot of dispute about what the meaning or the message is.” Chief Justice Roberts underscored lawyers’ self-understanding as philistines, telling the Warhol Foundation’s attorney, “you and I might think there’s no difference” in meaning between a blue painting and a yellow painting “but I’m sure there’s art critics who will tell you there’s a great difference between blue and yellow.” But, as legal interpreters, judges are critics whose craft is to apply precedents by making fine distinctions that have huge consequences. And when they instead throw out precedents, they open themselves up to charges of not acting like judges, like those that accompanied Dobbs v. Jackson Women’s Health Organization.
The Warhol Foundation’s arguments suggest that the iconic status of Warhol himself, and his unmistakable style, contributes to his copying being fair use. Kagan acknowledged that “we know who Andy Warhol was, and what he was doing and what his works have been taken to mean, so it’s easy to say that there’s something importantly new in what he did with this image.” But that would create more leeway for those who are culturally influential—that is, the famous and powerful—to claim to be “transformative” for copyright purposes and borrow from others without paying them. Goldsmith objects to a more permissive attitude toward iconic artists that would only enhance their privilege: “Fame is not a ticket to trample other artists’ copyrights.”
The legal narrative of this case is that Warhol’s work conveys a meaning or message different from Goldsmith’s photo, by flattening dimension, shading, and nuance to comment on what happens when a human being’s personality is flattened for consumption in popular culture. That, in turn, is an unwitting commentary on what happens when courts decide what things mean: a flattening of human reality and experience occurs in the legal process, no less than in Warhol’s silkscreen process. Alito mused that “maybe it’s not so simple” to determine the meaning of a work—months after eliminating abortion rights based on what he determined the Fourteenth Amendment meant at the time of ratification. The question hanging over this term is how the Court, which wants to appear as unoriginal as possible, will be affected by enacting so many transformations. 
The Supreme Court’s Self-Conscious Take on Andy Warhol
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