Andy Warhol v. Goldsmith: Historic SCOTUS Ruling on Fair Use and IP

May 19, 2023 10:26 AM

In a landmark 7-2 decision that many artists forewarned could have significant implications for fair use doctrine, the Supreme Court ruled on Thursday that the Andy Warhol Foundation failed to honor photographer Lynn Goldsmith's copyright when Warhol, in the 1980s, used her portrait of Prince to create a work of art. Justice Sotomayor wrote the majority opinion with Justice Kagan penning a fiery dissent in which she alleged Sotomayor had, "adopted a 'posture of indifference' and left 'in shambles' part of a fair-use test used in copyright cases." Some point to the ruling's possible consequences for generative AI artwork while art museums have expressed concerns of their own.

JD Supra explains more about the scope and finer details of the court's decision:
"Today’s decision in Warhol Foundation is both narrow and broad at the same time. The decision is narrow in that it addresses only: (i) the licensing to Conde Nast of the “Orange Prince” in 2016 and subsequent publication of that work in a commemorative magazine; and (ii) whether the first statutory fair use factor – the purpose and character of the use – favors the Warhol Foundation. The Court expressed “no opinion as to the creation, display, or sale of any of the original Prince Series works,” and did not consider any other statutory fair use factor except to note how they can relate to the analysis of the first. Indeed, the concurrence from Justices Jackson and Gorsuch noted that all other issues, including whether the “Orange Prince” as licensed by the Warhol Foundation to Conde Nast actually infringes the Goldsmith photo, remain to be addressed during further proceedings."

For a quick and dirty overview, refer to the Wikipedia entry:
Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.

posted by nightrecordings (26 comments total)

For clarity, I'm adding this explanation from Wikipedia about the case's cause and origin, because I think my above-the-fold wording may risk some confusion: Goldsmith had taken her photograph in 1981 on assignment for Newsweek and retained copyright on them afterwards. Three years later Vanity Fair licensed the image for Andy Warhol to use as a reference for a silkscreen illustration of Prince to be published, by agreement with Goldsmith, only once, with her credited. But Warhol used the image as the basis for his Prince Series without asking or notifying Goldsmith; she only learned of the images' existence when Vanity Fair's publisher, Condé Nast, used one as the cover image, with no attribution, for a special tribute magazine to Prince after his death in 2016, which was licensed by the Andy Warhol Foundation (AWF).
posted by nightrecordings at 10:30 AM on May 19, 2023 [2 favorites]

I guess if I'm reading this all correctly, the ACTUAL infringement was when Warhol used the image to make more art than the photograph was licensed for, but this case finds the infringement to have been when the Warhol Foundation licensed one of those works of art to a magazine, basically the same use the photographer had been paid for with the first Warhol magazine use.

Or maybe what Warhol did wasn't infringement because it was transformative, but it was the use of this particular photograph transformed by the same artist for a magazine that is the central issue.
posted by hippybear at 10:35 AM on May 19, 2023 [1 favorite]

Mike Dunford (twitter link) is an attorney (US and UK) who just wrote his PhD thesis on Copyright and Fandoms. He has a long series of comments on how the current copyright fiasco affects small creators, including fan works. Well worth diving into for a bigger picture of the implications for small-scale creators. His comments are largely geared toward people without a strong legal background.
posted by Silvery Fish at 10:41 AM on May 19, 2023 [5 favorites]

Such an unncecarry chai around our necks and they somehow trick some of us into thinking it's for our benefit, to protect small creators. Give me a break. Ain't nothing works that way and everybody knows it. More than ever we need a radical sweeping change to patent, copyright, IP law. These laws are clearly trying to shore up massive inherent flaws in capitalism, while levying the burden of responsibility onto the wrong parties with counter-productive solutions. The only argument anyone ever had for making "property" of fucking psychic ideas that rightfully belong to all humanity, is that the boot of capitalism will hurt people who do not prove their value to the cruel demon of the Market. The solution isn't to make up arcane rituals to appease the demon, it's to work on removing the demon.

Whatever fanciful protections they lied to use about for protecting small creators has never and will never actually manifested in benefit to us and we should stop maintaining this acrid system and philosophy.
posted by GoblinHoney at 11:04 AM on May 19, 2023 [10 favorites]

My layman's interpretation is that it's not enough anymore to add "some new expression, meaning or message" to copyrighted material, you now have to TRANSFORM IT REAL GOOD, and also stay off the copyright holder's street corner (we'll tell you exactly where that is later, but maybe best if you just stay out of town)
posted by credulous at 11:17 AM on May 19, 2023 [7 favorites]

If it was fair use for Warhol to use Goldsmith's picture, why did Vanity Fair pay her the first time? That pretty much gives away the whole case right there.
posted by Galvanic at 11:41 AM on May 19, 2023 [10 favorites]

I'm still not sure if I want to punch Richard Prince in the nose or shake his hand. Probably punch him in the nose, because he's a rich white guy and there ain't a one of 'em that don't need it.

(It's ah.... a different Prince. Richard Prince "appropriates" other people's art and "transforms" it very slightly to dance on the edge of fair use. He has shows at the Gagosian for this. It's disgusting. But also intriguing. But mostly disgusting, because he generally rips off people who are not rich white dudes.)
posted by seanmpuckett at 11:57 AM on May 19, 2023 [2 favorites]

Good. I love to see those Warhol Estate bastards take an L, and transformative fair use is the fair use I care the very least about. This may weaken it ever so slightly, but it's not like your Warhols and Lichtensteins were ever anything but edge cases, transformative only to people familiar with (not to say steeped in) the esoteric bullshit of mid-century fine art.

Which is... *I* am familiar with mid twentieth century fine-art bullshit. It's just... like if I tell you one of my favorite paintings is Yves Klein's The Void, I am being honest and sarcastic at the same time, and Warhol exists in that same milieu. Warhol takes a photo and "transforms" it with his genius hands, and I'm like "sure, yeah" but also that's kind of bullshit, and maybe I feel for the working commercial photographers whose work he is appropriating.
posted by surlyben at 12:08 PM on May 19, 2023 [8 favorites]

I predict zero repercussions for fandom or small creators. We're already mostly powerless in the face of DCMA takedown requests. I had some direct experience in this a few years ago and even with a fairly strong fair use claim it just isn't worth it.

The majority opinion also noted that one of the key elements of the fair use defense is the purpose is it educational, informative/new worthy or commercial. The courts have always been pretty reluctant to grant fair use exemptions for commercial uses. Another factor in the defense is the question of how transformative the work is. In this instance the dissenting justices seem to want to make a point about Warhol as an artist while the majority seemed to dismiss those claims.

To my subjective eye much of the photographers original composition and choices are carried through to the Warhol works. The photographer's choice of expression, pose, the use of light/shadow with the messy hair covering part of one eye -- these are all artistic elements in the original work that were copied into Warhols artwork. Even the focus on the face by having prince wearing a white shirt, on a light background in the original.

As an experiment I went to stable diffusion and prompted it with "A posterized image of the musician Prince looking into the viewer in the style of Andy Warhol" The results were much more creative than the actual Andy Warhol poster.
posted by interogative mood at 12:09 PM on May 19, 2023 [5 favorites]

The only argument anyone ever had for making "property" of fucking psychic ideas that rightfully belong to all humanity,

Creative works are not ideas, and the argument that they are and that the actual labor that creative workers put into creating them is something that "belongs to all humanity" is an intensely anti-labor idea that is designed to diminish and demean creative labor.

Whatever fanciful protections they lied to use about for protecting small creators has never and will never actually manifested in benefit to us and we should stop maintaining this acrid system and philosophy.

We've had a number of small creators in prior threads detail how copyright does, in fact, protect them, so the argument that it hasn't is laughably disprovable. It's also worth noting that a good deal of the opposition to copyright is backed by a multi-billion dollar multinational company who has a vested interest in weakening copyright to give themselves more leverage when dealing with small creators.
posted by NoxAeternum at 12:20 PM on May 19, 2023 [19 favorites]

So I haven't even had a chance really to skim the opinion yet, nor any of the commentary, but just a few things:

• For those who, like me, are avid collectors of actual court rulings and revel in the availability of actual rulings for anyone to download, the JDSupra article has a link to the ruling itself, Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith decision (PDF).
• I'm so used to the narrative of the "liberal" justices and the "conservative" justices that it's kind of a shock to me to see an emphatic opinion by Sotomayor with a very emphatic dissent by Kagan. We're so relentlessly encouraged to see the court as two opposing teams that it's weird (and useful) to get a reminder that actually, it's possible for Sotomayor and Jackson to be on one side and Kagan to be thoroughly on the other.
• The footnotes in the ruling that address the dissent - indeed, the tone of the whole opinion (based on literally 30 seconds of skimming) - seems surprisingly snarky and dismissive. Is that common? That seems weird.
• Just interesting to me: the ruling is about 51 pages; the dissent is about 36 pages
• Finally, I take issue with this, from the JDSupra piece:

  The majority opinion characterized today’s decision as upholding the purpose of copyright – to protect the rights of creators in their original works – without preventing the uses of such works in circumstances long permitted by law, like when an unauthorized use qualifies as fair.

  I can't tell whether the opinion does, indeed, actually characterize the decision that way, but I vehemently argue that the purpose of copyright is NOT to protect the rights of creators, but rather "To promote the Progress of Science and useful Arts." Granting monopoly rights to creators is a means to that end, but it is not the end itself.

I don't know whether I'll ever find the time to read this whole opinion and dissent, but I appreciate knowing about it, and I appreciate the recommended links for learning what others have to say. Thank you so much for posting this, nightrecordings!
posted by kristi at 12:40 PM on May 19, 2023 [11 favorites]

The footnotes in the ruling that address the dissent - indeed, the tone of the whole opinion (based on literally 30 seconds of skimming) - seems surprisingly snarky and dismissive. Is that common? That seems weird.

won't be surprised if one of the justices gets stabbed to death and after a long and confusing investigation it turns out that all the other justices took turns giving exactly one stab each.
posted by kaibutsu at 1:28 PM on May 19, 2023 [5 favorites]

Roy Lichtenstein better watch his back. That's all I'm saying.
posted by sebastienbailard at 1:46 PM on May 19, 2023 [4 favorites]

Creative works are not ideas, and the argument that they are and that the actual labor that creative workers put into creating them is something that "belongs to all humanity" is an intensely anti-labor idea that is designed to diminish and demean creative labor.

Most creative works are indeed "ideas" (they are intangible, which is what GoblinHoney meant). The production of ideas is also labour. The concept of the commons is not anti-labour. Intellectual property is anti-labour, precisely because it creates a distinction between the labour of creation and the entitlement to the fruits of that labour, which can then be transferred (unlike moral rights) to an ownership class that's separate from the creators. Creators only benefit from that arrangement so long as they retain ownership, and while to some extent that's what this court case was about, it's increasingly not how most cultural production works, at least for work that has any market value. What demeans creative labour is that so much of the profit accrues to IP owners and rent-seeking middlemen.
posted by Gerald Bostock at 4:01 PM on May 19, 2023 [5 favorites]

This is one of the things the WGA strike is about -- the writers used to benefit from repeat showings of something they helped create/idea into existence because of rerun residuals. But with streaming, there are no reruns. The ownership class pays once for a work that is shown over and over and over.

I don't know exactly how that feeds into this court ruling, but what Gerald Bostock's comment brought that immediately to mind.
posted by hippybear at 4:29 PM on May 19, 2023 [3 favorites]

Intellectual property is anti-labour, precisely because it creates a distinction between the labour of creation and the entitlement to the fruits of that labour,

Oh good god. So the moment something is created, the creator should lose all control over it? Yeah, that’s definitely pro-labor.
posted by Galvanic at 6:23 PM on May 19, 2023 [8 favorites]

My layman's interpretation is that it's not enough anymore to add "some new expression, meaning or message" to copyrighted material, you now have to TRANSFORM IT REAL GOOD, and also stay off the copyright holder's street corner

I thought it was kind of interesting that the court ruled that the Warhol work had the same commercial function as the photograph. The photo is a portrait of Prince, suitable for hanging on a wall or inclusion in a glossy magazine. The Warhol work, on the other hand, is a portrait of Prince, suitable for hanging on a wall or inclusion, say, in a glossy magazine. It imposes some bold colors and shit on Prince's face but it doesn't seem to DO much that the original photo didn't do. (I guess instead of saying "This is Prince" it says "This is Prince. He is purple.")

Since I'm a music guy, it's kind of obvious to me that you couldn't do this to music without licensing it. You couldn't crop out 10 seconds of someone else's composition, replace the horn parts with synths, and call that transformative.
posted by anhedonic at 7:00 PM on May 19, 2023 [2 favorites]

you now have to TRANSFORM IT REAL GOOD

Perhaps, but anyone trying to defend Warhol on this is frankly looks pretty foolish because Orange Prince was barely a transformation.

It's the same picture but instead of black and white, it's black and ORANGE (with a hint of blue)!

Even if you accept Warhol's idiomatic style, the Vanity Fair cover barely transformed the photo as well -- and they paid a license to Goldsmith.

What if he just made it a photo negative? What if he just signed the bottom corner? You don't have to transform a work of art real good, but for science sake at least don't transform it real lazy.
posted by tclark at 8:52 PM on May 19, 2023 [2 favorites]

Such an unncecarry chai around our necks

As a Jew, I did not immediately make the full mental correction here and I was deeply confused
posted by aws17576 at 9:07 PM on May 19, 2023 [3 favorites]

The only argument anyone ever had for making "property" of fucking psychic ideas that rightfully belong to all humanity, is that the boot of capitalism will hurt people who do not prove their value to the cruel demon of the Market.

I take issue with the idea that copyright is inherently or automatically a tool of capitalism. Capital has certainly made extensive and exploitative use of it (like it makes use of everything), but as someone else pointed out upthread, the U.S. Constitution emphasized copyright as a tool that could enrich society as a whole. (Cue someone denouncing the Constitution as nothing more than a capitalist scam in 3, 2, 1...)

Generally I think there's a lot of reductionist thinking these days around capitalism, where things that have become tools of capital are assumed to have been such from the beginning, and to be useful for no other purpose. E.g., markets, and property, existed long before capitalism did. With regard specifically to copyright, as an artist and musician who has never earned much money from my creative work, I nevertheless appreciate that I can protect it as my own, and prevent others from unjustly enriching themselves from it.

As for this ruling, I have complicated feelings. I'm a big believer in the importance of transformative use, and have transformatively used a lot of sounds and images in my work. (I've also appropriately compensated other copyright holders in some cases -- for instance, when I've recorded cover songs, or used stock footage with very little alteration.)

I do honestly believe I've substantially transformed the material I've "borrowed" without compensation. But it seems like the jurisprudence around this is so idiosyncratic and variable. It's hard to know exactly where the boundary lies between what's appropriately transformative and what isn't.
posted by Artifice_Eternity at 10:23 PM on May 19, 2023 [1 favorite]

Most creative works are indeed "ideas" (they are intangible, which is what GoblinHoney meant). The production of ideas is also labour.

There's a saying in the creative industries - ideas are worthless. The reason for this is because everyone comes up with them. What has actual value is putting in labor to take an idea and turn it into an actual creative work that while perhaps intangible is still much more concrete and established than an idea.

So no, creative works are not ideas, and the conflation of the two is intensely anti-labor because it is the complete diminshment of creative labor by conflating the genesis of the proess with the finished result.

The concept of the commons is not anti-labour.

The problem was not the commons, the problem was assigning ownership of creative labor natively to it. That is anti-labor, because it is arguing that creators have no right to their labor.

Intellectual property is anti-labour, precisely because it creates a distinction between the labour of creation and the entitlement to the fruits of that labour, which can then be transferred (unlike moral rights) to an ownership class that's separate from the creators.

Why yes, part of giving workers ownership of their labor and its products is so that they can dispose of them as they please. There is no "distinction" - for laborers of any sort to meaningfully own their labor, they have to be able to control the output of that labor - and when that means producing a work it means they have the right to dispose of it as they please.

And since you avoided my final point, let me be blunt - a lot of the opposition to copyright is supported by companies like Alphabet because it's in their interests to weaken the protections of all creators because weakening those protections means they can run roughshod over creators even more than they do now.
posted by NoxAeternum at 6:19 AM on May 20, 2023 [9 favorites]

I would enjoy making popcorn for the Disney/Alphabet copyright court fight.
posted by hippybear at 6:52 AM on May 20, 2023

appropriately compensated

Which seems to me to be the key to the whole thing - had Warhol and later the Warhol Foundation (a foundation that as of 2020 (per propublica) claimed a revenue of over $13 million and assets of nearly $300 million, by the way) put even some fairly minimal effort into compensating and crediting Goldsmith for the use of her work, she likely wouldn't have sued in the first place. And then if the Foundation had accepted their initial loss with grace, or even done the totally bog standard thing of going, "whoops our bad" and settling, that would've been the end of it. But no, they had to double down, and now here we are.
posted by soundguy99 at 8:33 AM on May 20, 2023 [4 favorites]

The problem was not the commons, the problem was assigning ownership of creative labor natively to it. That is anti-labor, because it is arguing that creators have no right to their labor.

But creators don't natively own the product of their labour. That's literally why copyright had to be invented - intangible cultural products aren't inherently "ownable" like physical property is, so the state created a time-limited artificial monopoly instead. It's not anti-labour to point that out. (And it's worth noting that the very first copyright law was about protecting printers; authors were only included to make legislators more sympathetic to the bill. Creators' rights weren't the original aim of copyright, and they have never been absolute.)

Why yes, part of giving workers ownership of their labor and its products is so that they can dispose of them as they please.

And this is a false freedom to the extent that creators have to sign away their rights in order to participate in the market system, which is the direction the culture industry is heading in (work-for-hire contracts that assign ownership and profits to Disney, streaming services that share revenue with record labels but pay most musicians pennies).

a lot of the opposition to copyright is supported by companies like Alphabet because it's in their interests to weaken the protections of all creators because weakening those protections means they can run roughshod over creators even more than they do now.

I mean, yeah, strip-mining the commons isn't any better than enclosing it.

Creators are being exploited, so it's natural to want to double down on the few protections they currently have. The problem, though, is that the intellectual property system isn't actually working for the benefit of creators, let alone the broader community, and this is an inherent structural flaw (or a benefit, if you're the capitalist class). What we need isn't stronger IP rights but a better system.
posted by Gerald Bostock at 11:18 AM on May 20, 2023 [1 favorite]

What we need isn't stronger IP rights but a better system.

You really should rethink an argument that advocates losing what protections exist because the perfect solution is an entirely new system…that’s not going to happen.
posted by Galvanic at 4:39 PM on May 20, 2023 [3 favorites]

> As for this ruling, I have complicated feelings. I'm a big believer in the importance of transformative use, and have transformatively used a lot of sounds and images in my work.

The photographer retained copyright of the image, signing off on a one-time use. Warhol basically cropped it, thresholded it, and silkscreened it using 2 colors, maybe a gradient. Barely exceding what a photocopier is capable of. I would say the first and later prints were not transformative, and that the later prints were appropriation of someone else's creative work.
posted by sebastienbailard at 2:00 AM on May 21, 2023 [3 favorites]