Skip to content

The Patron Saint of Superheroes

Chris Gavaler Explores the Multiverse of Comics, Pop Culture, and Politics

Tag Archives: Patricia Highsmith

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.”


“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: , , ,


Before meeting Alfred Hitchcock on a train to Hollywood fame, Patricia Highsmith wrote comic books. It was 1942, the height of the Golden Age boom, and a pretty good first job for an English major fresh from commencement. She started at the now largely forgotten Standard Comics but graduated to Timely (AKA Marvel) before leaving the field in 1948—when superheroes were dropping faster than Tom Ripley’s murder victims.

When she published The Talented Mr. Ripley in 1955, the comics market had been bludgeoned to near death by Congress and the Code. She had not been called to testify before the Senate because she had killed off the fact of her first career with a splatter of white-out.  Comic books? What comic books? If outed by some sleuth of an interviewer, she might admit to having dabbled with Superman or Batman, but she had probably climbed no higher up the superhero pantheon than the Black Terror, a skull-and-bone chested knock-off since abandoned to public domain.

Black Terror

But for a highbrow author trying to bury her lowbrow past, Ms. Highsmith planted a lot of clues. Tom Ripley’s first victim (of tax scam, the murders come later) is a comic book artist who, Tom therefore assumes, “didn’t know whether he was coming or going.”He even knows that the artist’s “income’s earned on a freelance basis with no withholding tax,” making him an easy mark. Tom’s single real friend, Cleo, doesn’t draw comics, but “painted in a small way—a very small way”; her “imaginary landscapes of a junglelike land” were “no bigger than postage stamps” (like panels in a Thrilling Comics adventure perhaps?). Even Dickie, Tom’s first murder victim, is a painter, albeit a “lousy amateur,” though Tom pictures his pen-and-inks of ships as “precise draftsman’s drawings with every line and bolt and screw labeled.” Tom even takes up a brush himself, imitating Dickie’s mediocre smears.

As far as superpowers, Tom is an old school master-of-disguise. When defrauding that comic book artist, he becomes General Director of the IRS Adjustment Department, drawling “like a genial codger of sixty-odd” years. He wields an eyebrow pencil and a bottle of peroxide wash too, but knows a touch of putty on the end of his nose would be too much. The art of impersonation is a matter of mood and temperament, adopting just the right facial expressions and gait. Besides, he’d always “wanted to be an actor,” and after beating his would-be BFF with a boat oar and stealing his identity, he gets his chance. He even adopts Dickie’s flawed Italian, and of course his signature (“seven out of ten experts in America had said they did not believe the checks were forged”).

Highsmith is a mistress-of-disguise too. Comics were the least of the skulls and bones in her closet. After Hitchcock made her name by adapting her first, 1950 novel, Strangers on a Train, she published The Price of Salt as alter ego Claire Morgan. I’ve not read it, but I think Dr. Wertham and his buddies in the Senate would have cited Ms. Morgan’s sexual proclivities as further evidence of the unwholesomeness of the comics industry. Claire, like her creator, was bisexual, and, worse, dared to end her lesbian romance on a note of hope for her unrepentant protagonists.

Mr. Ripley has the same origin story. He’s stalked by the specter of his own homosexuality, repeatedly labeled “pansy” and “sissy” and “queer.” As a result, he can’t embrace any sexuality. “I can’t make up my mind whether I like men or women,” he jokes, “so I’m thinking of giving them both up.” But where does all that smoldering energy go? Blunt objects. His second murder weapon is an ashtray. The victim is a “selfish, stupid bastard who had sneered at” Dickie, “one of his best friends—just because he suspected him of sexual deviation.” When Tom was alone in a boat for the last time with Dickie (oh, don’t even start on the oar-sized penis jokes), he realized he could have “hit Dickie, sprung on him, or kissed him, or thrown him overboard.” The thwarted sexual impulse is steered into violence. For that tentative reason, I’m not appalled at Ms. Highsmith for ending her crime novel on a note of triumph for her unrepentant protagonist. Like Claire, Tom goes unpunished.

Or at least not legally punished. The damage he commits on himself is deeper. When forced to abandon his socialite existence as the gentlemanly Dickie, he “hated becoming Thomas Ripley again . . . as he would have hated putting on a shabby suit of clothes.” His former self, “Tom Ripley, shy and meek,” becomes just another performance—like the one a certain superpowered alien from Krypton adopts. He decides to “play up Tom a little more . . . He could stoop a little more, he could be shyer than ever, he could even wear horn-rimmed glasses and hold his mouth in an even sadder, droopier manner.” When Highsmith said she wrote Superman and Batman, she meant Clark Kent and Bruce Wayne, the ying and yang of her shapeshifting murder’s Tom and Dickie duality.

Superman and Batman make an appearance too. Yes, Tom fits the standard orphan model (“My parents died when I was very small”), but Highsmith pulls back her superhero mask even further as Tom stands aboard a ship, all but certain he’s finally to be arrested: “He imagined strange things: Mrs. Cartwright’s daughter falling overboard and he jumping after her and saving her. Or fighting through the waters of a ruptured bulkhead to close the breach with his own body. He felt possessed of a preternatural strength and fearlessness.”

In another, less homophobic universe, Mr. Ripley might have saved himself by using his considerable talents for good. Instead, he bludgeons the Comics Code established the year before he was published:

Crimes shall never be presented in such a way as to create sympathy for the criminal

No comics shall explicitly present the unique details and methods of a crime

Criminals shall not be presented so as to be rendered glamorous or to occupy a position which creates the desire for emulation.

In every instance good shall triumph over evil and the criminal punished for his misdeeds.

And most importantly:

Illicit sex relations are neither to be hinted at or portrayed. Violent love scenes as well as sexual abnormalities are unacceptable.

Sex perversion or any inference to same is strictly forbidden.

It’s enough to twist even Batman and Superman into sociopathic serial killers.


Tags: , , , , ,

%d bloggers like this: