The Patron Saint of Superheroes

I wrote a series of posts (one, two, three, four, plus codas five, six, and seven) about the Warhol v. Goldsmith case in 2021, before the second appeal went to the Supreme Court in October 2022 (which I discussed here and here).

I offered two guesses about the outcome:

“SCOTUS sides with Warhol, but fails to explain in a manner that will clarify infringement for potential future cases. Alternatively, the Court sides with Goldsmith and still fails to explain in a manner that will clarify infringement for potential future cases. Either way, I predict they dodge the needed work of determining a standard for meaningful transformation.”

The Court has now ruled:

Sadly, the 7-2 decision against Warhol proved my core prediction true: the majority dodged the needed work of determining a standard for meaningful transformation, failing to clarify infringement for potential future cases.

Instead of analyzing Warhol’s transformation of Goldsmith, the majority focused on the fact that both Warhol and Goldsmith sold their images to magazines. Sotomayor explains:

“As portraits of Prince used to depict Prince in magazine stories about Prince, the original photograph and AWF’s copying use of it share substantially the same purpose.”

Gorsuch penned his own concurring opinion, which Jackson joined, emphasizing the extremely limited focus of the decision:

“while our interpretation of the first fair-use factor does not favor the Foundation in this case, it may in others. If, for example, the Foundation had sought to display Mr. Warhol’s image of Prince in a nonprofit museum or a for-profit book commenting on 20th-century art, the purpose and character of that use might well point to fair use. But those cases are not this case. Before us, Ms. Goldsmith challenges only the Foundation’s effort to use its portrait as a commercial substitute for her own protected photograph in sales to magazines looking for images of Prince to accompany articles about the musician. And our only point today is that, while the Foundation may often have a fair-use defense for Mr. Warhol’s work, that does not mean it always will.”

Kagan and Roberts (a surprise given his skeptical questioning during oral arguments) dissented. Kagan writes:

“Like most artists, Warhol did not want to hide his works in a garret; he wanted to sell them. But as Campbell and Google both demonstrate, that fact is nothing near the showstopper the majority claims.”

Kagan continues:

“The silkscreen and the photo, the majority claims, still have the same “essential nature.” The description is disheartening. It’s as though Warhol is an Instagram filter, and a simple one at that (e.g., sepiatinting). “What is all the fuss about?,” the majority wants to know. Ignoring reams of expert evidence—explaining, as every art historian could explain, exactly what the fuss is about—the majority plants itself firmly in the “I could paint that” school of art criticism.”

She even employs my favorite philosophical strategy:

“A thought experiment may pound the point home. Suppose you were the editor of Vanity Fair or or Condé Nast, publishing an article about Prince. You need, of course, some kind of picture. An employee comes to you with two options: the Goldsmith photo, the Warhol portrait. Would you say that you don’t really care? That the employee is free to flip a coin? In the majority’s view, you apparently would. Its opinion … is built on the idea that both are just “portraits of Prince” that may equivalently be “used to depict Prince in magazine stories about Prince.” All I can say is that it’s a good thing the majority isn’t in the magazine business. Of course you would care!”

In short, Kagan concludes about the majority decision: “From top-to-bottom, the analysis fails.”

Though Sotomayor’s Opinion appears first, it includes quips at Kagan:

“The dissent thus misses the forest for a tree.”

“The dissent would rather not debate these finer points.”

“These claims will not age well.”

And Kagan quips back:

“I’ll be happy to discover that my “claims [have] not age[d] well.” But that would require courts to do what the majority does not: make a serious inquiry into the follow-on artist’s creative contributions. The majority’s refusal to do so is what creates the oddity at the heart of today’s opinion. If “newness” matters (as the opinion sometimes says), then why does the majority dismiss all the newness Warhol added just because he licensed his portrait to Condé Nast?”

Kagan’s dissent also employs visual arguments, including an expected comparison of Warhol’s transformative Marilyn to his transformation of the Prince photograph:

The inclusion of Francis Bacon is more surprising:

There’s also an atypical number of nudes:

Most importantly though, Kagan recognizes the larger issue:

“Still more troubling are the consequences of today’s ruling for other artists. If Warhol does not get credit for transformative copying, who will? And when artists less famous than Warhol cannot benefit from fair use, it will matter even more.”

Artists need to know what is and what is not adequately transformative when developing artwork from a source image. Without a standard, parameters for copyright infringement will remain ambiguous, and threats of lawsuits will continue to control artistic behavior.

Consider these examples.

I’m guessing that all of the far-right images are transformative enough to avoid infringing on any copyrights from the images on the far left. (Blanch v. Koons (2005) seems to establish that: “When, as here, the copyrighted work is used as ‘raw material,’ in the furtherance of distinct creative or communicative objectives, the use is transformative.”)

But I have no idea about the three in the middle column.

Or, if these three middle photographs were copyrighted, would the images on the left and right infringe?

Returning to Goldsmith, I have no idea if either of the two transformed images are sufficiently transformative to avoid infringement.

If a work is “transformative,” nothing else matters. A transformative work can’t infringe on the copyrighted worked it transformed, regardless of other factors. While focusing on Warhol’s “use” of his Prince image on a magazine cover, the majority is indirectly declaring that Warhol did not sufficiently transform Goldsmith. But they do not provide the visual analysis needed to explain why that is and, more importantly, to establish any sort of standard for future cases.

Recall that in 2014 Kienitz v. Sconnie Nation and Underground Printing, the circuit judges ruled in the opposite direction. The defendants downloaded a photograph from a city website to use for a t-shirt ridiculing Mayor Peter Soglin:

“Defendants removed so much of the original that, as with the Cheshire Cat, only the smile remains. Defendants started with a low resolution version posted on the City’s website, so much of the original’s detail never had a chance to reach the copy; the original’s background is gone; its colors and shading are gone; the expression in Soglin’s eyes can no longer be read; after the posterization (and reproduction by silk-screening), the effect of the lighting in the original is almost extinguished. What is left, besides a hint of Soglin’s smile, is the outline of his face, which can’t be copyrighted.”

That description also suits Warhol’s transformation of Goldsmith’s photograph:

Does the (scant) visual analysis of Warhol v Goldsmith now replace the visual analysis of Kienitz? Or is it true that the elements of original photographs that remain after a silkscreen process “can’t be copyrighted”?

Even without that unaddressed contradiction, the decision deepens the ambiguity. The Court states:

“To preserve the copyright owner’s right to prepare derivative works, defined in §101 of the Copyright Act to include “any other form in which a work may be recast, transformed, or adapted,” the degree of transformation required to make “transformative” use of an original work must go beyond that required to qualify as a derivative.”

And:

“Such transformations may be substantial, like the adaptation of a book into a movie.”

So where is the line between an owner’s copyright-protected derivatives and a second artist’s fair-use transformations?

Warhol v Goldsmith tells us nothing. This is what Kagan means when she sharply criticizes the majority’s refusal to “make a serious inquiry into the follow-on artist’s creative contributions.”

The majority skipped step one:

“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.”

Though I don’t agree with everything in the dissent, Kagan recognizes the central challenge that the majority ignored. Instead of providing clarity, the decision deepens confusion.

Tags: Andy Warhol, Kagan, Patricia Highsmith, Sotoymayor