Supreme Court Conceptual Art (or, “Let’s Say I’m a Prince Fan”)

October 24, 2022 Supreme Court Conceptual Art (or, “Let’s Say I’m a Prince Fan”)

“Conceptual art,” according to the art-term entry on the Tate website, “is art for which the idea (or concept) behind the work is more important than the finished art object. … a conceptual artist uses whatever materials and whatever form is most appropriate to putting their idea across – this could be anything from a performance to a written description.”

I accept that broad scope to include Supreme Court Justices, who routinely include descriptions of imagined works in their opinions. My favorite was written by Justice Breyer for the majority Google v. Oracle. While making a point about copyright infringement, Breyer refers to “one of the world’s shortest short stories,” and then apparently includes it: “When he awoke, the dinosaur was still there.”

During the oral arguments for Warhol v. Goldsmith on October 12th, three more Justices described conceptual artworks. I have taken the role of artist assistant and rendered each based on the written descriptions from the court transcript.

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Go Orange Prince by Clarence Thomas

Justice Thomas:

“Let’s say I’m a Prince fan … [and] also a Syracuse fan and I decided to make one of those big blow-up posters of Orange Prince and change the colors a little bit around the edges and put ‘Go Orange’ underneath. Would you sue me?”

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Chromatic Yellow by John Roberts

Chief Justice Roberts:

“There are artists whose work consists of single color within a frame, right? Mondrian, Albers. Let’s say somebody uses a different color. The original is blue and the allegedly copyright-violation work is yellow. If you’ve got art critics to come in and say that blue sends a particular message, yellow sends a different one, would that satisfy any claim of copyright violation?”

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Happy Prince by John Roberts

Chief Justice Roberts:

“Let’s suppose that—I think you can do this with technology—instead of the mood that Prince is conveying in the Goldsmith photograph, you put a little smile on his face and say this is a new message. The message is, Prince can be happy. Prince should be happy. Is that enough of a transformation? The message is different.”

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Red Dress Mona Lisa by Samuel Alito

Justice Alito:

“Well, suppose that the Mona Lisa was copyrighted and somebody, a real — really skillful copyist, made almost an exact copy. Most people could never detect the difference, except the — the copyist changed the color of her dress. If you showed those two to most people today, they would say, well, all right, brown dress, blue dress, red dress, doesn’t make any difference, right?”

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The Justices conceived their four conceptual works for the purpose of determining whether Warhol’s Orange Prince infringes on Lynne Goldsmith’s photograph of Prince:

To that degree, they are depressingly bad works of conceptual art.

Here’s why:

Fair use doctrine includes four factors. Thomas’s poster explores the first, “The Purpose and Character of the Use,” and the third, “The Amount or Substantiality of the Portion Used,” questioning whether the change of use (Warhol’s Orange Prince is a work of fine art meant for art galleries, Thomas’s “Go Orange Prince” would be mass-produced football-game paraphernalia meant for stadiums) is sufficiently transformative despite the verbatim reproduction of the image.

I think the answer is a fairly obvious no.

I discussed in a recent post that the Court is likely to sidestep the most pressing question: “artists need to know what is and what is not adequately transformative when developing artwork from a source image. … I predict they dodge the needed work of determining a standard for meaningful transformation.”

Thomas’s conceptual art, because its degree of factor-three transformation is essentially zero, suggests no new insights on that core challenge.

Roberts doesn’t do any better.

It doesn’t help that Roberts references the wrong artist (the above 1961 Blue Monochrome is by Yves Klein, definitely not Piet Mondrian or Josef Albers). Worse, his line of questionings yields nothing new about transformativeness. I’m pretty sure Thomas was thinking about the minimum level of transformation, which is at least a starting point. Maybe Roberts was approaching from the opposite end of the spectrum, since his conceptual piece is 100% transformative, deriving literally nothing from Klein since every drop of paint would be a necessarily different drop paint. Nothing of Klein’s painting would be reproduced in Roberts’ Yellow Monochrome except the concept of a monochrome painting, which can’t be copyrighted and therefore can’t be infringed upon. But I don’t think that was his point. He seemed to be snagged on whether sufficient transformation can be defined by the presence of any “new message” in the new work, which is a side effect of transformation not the transformation itself.

His second conceptual piece is a little better, but also mostly a variation on Thomas’s, since, again, it’s about least amount of transformation possible. Roberts was still more interested in “message” though, a murky idea that avoids the question of degrees.

It would be more useful to ask whether the altered smile alters “the heart” of Goldsmith’s photograph. SCOTUS ruled in 1997 that infringement occurs if the copied portion is “the heart of the work,” and they ruled again last year that: “even a small amount of copying may fall outside of the scope of fair use where the excerpt copied consists of the ‘heart’ of the original work’s creative expression.” (That’s from Breyer’s Google v. Oracle again, same section as his dinosaur short story.)

Sadly, the key question of what constitutes “the heart” of a visual image, particularly an image of a individual such as Prince, somehow never came up during the oral arguments. I’d say Roberts’s Happy Prince raises a good question, albeit one that the Chief Justice wasn’t aware he was raising. Most of the image reproduces the original verbatim–and yet if the altered mouth alters “the heart” of Goldsmith’s photograph, then the transformativeness must be substantive and, if so, it shouldn’t infringe. I would love if the Supreme Court would answer that core question. But at the moment, they don’t seem to know the question exists.

Alito certainly doesn’t.

Maybe Justice Alito was napping during Thomas’s and Roberts’s questions, because his conceptual art is a step backwards into irrelevance. Thomas at least introduced a change of use. Alito is just imagining some second work of fine art with some non-essential element altered. Again, if he had reread infringement cases that focused on the question of what constitutes a work’s “heart,” he would know that his questioning was self-evident: yes, a copy of the Mona Lisa that alters only the color of the dress would infringe on the original.

The Court isn’t supposed to declare their decision until summer, and I really don’t know which side they’ll land on. Sadly, I suspect it won’t matter, because they will do nothing to clarify the central question for anyone other than the plaintiff and defendant in this very particular case. When we read the ruling, the problem will still be there.

Tags: Andy Warhol, fair use, Goldsmith, infringement, prince, SCOTUS, Supreme Court

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