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[Noah Feldman] The pro-artist, anti-art ruling

May 23, 2023 - 05:30 By Korea Herald

The Supreme Court has sided with individual artists -- but against art itself. In a fascinating copyright decision that transcended ideological lines, the court held that Andy Warhol’s distinctive reworking of a photograph of Prince did not count as fair use, thus requiring the Andy Warhol Foundation to compensate the original photographer.

The upshot is that little-guy artists win, because they now have more rights than they had before to claim credit for works re-used by others. But art as a whole loses, because the decision restricts how artists generate creativity by sampling and remixing existing works.

To understand the issue, just look at the original photograph of Prince, taken by the photographer Lynn Goldsmith in 1981 for Newsweek, and compare it to the Warhol version, produced for Vanity Fair magazine in 1984.

The original photograph is certainly terrific. The Warhol, however, is … a Warhol. The great pop genius (or maybe his studio assistants, who were legion) deployed the distinctive coloring, pseudo-brushstrokes and silk-screening technique that makes the work instantly recognizable as belonging to the same style as Warhol’s iconic images of celebrities from Marilyn Monroe to Mao Zedong.

And Vanity Fair did pay Goldsmith $400 for use of her photograph. But the payment was for one use only. So when the Warhol Foundation licensed a version to Vanity Fair for an article years later, for a fee of $10,250, Goldsmith sued for copyright infringement.

The majority opinion for the court was written by Justice Sonia Sotomayor and was joined by all the justices except Justice Elena Kagan, who wrote a dissent, and Chief Justice John Roberts, who joined Kagan. Sotomayor took pains to say both that Goldsmith was “less well-known” than Warhol and also that she was a “trailblazer” in rock-and-roll photography “when there were few women in the genre.” This framing helps explain Sotomayor’s holding, which was that artists like Goldsmith are entitled to copyright protection “even against famous artists.” She was siding with less well-known artists against their more famous counterparts.

The technical legal issue before the court was the meaning of “fair use” under copyright law. The fair use principle is an exception to the general rule that an artist owns the copyright in an original work. If a subsequent use counts as “fair use,” the later user is free to reproduce the original art without infringing on copyright. An example of fair use is parody: Weird Al Jankovic can copy the tune of Michael Jackson’s “Beat It” to create his breakfast cereal classic, “Eat It,” without infringing on Jackson’s copyright.

The copyright statute says that fair use depends in part on “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” Sotomayor reasoned that the Warhol image was for the same purpose as the Goldsmith photograph -- magazine illustration -- and that both uses were commercial. Sotomayor argued that this factor weighed in favor of disallowing the Warhol use.

Another major aspect of fair use analysis is whether the new work is “transformative.” Transformation, Sotomayor noted, is always a matter of degree. Original artists retain the rights to “derivative” works, like turning a book into a movie, even when those new works are transformative. But sometimes, as in parody, the transformation amounts to fair use.

In her dissent, Kagan ridiculed the idea that the Warhol’s Prince image was not transformative. She criticized “the majority’s lack of appreciation for the way (Warhol’s) works differ in both aesthetics and message from the original templates.” She argued that the majority’s narrow focus on the magazine license obscured the more fundamental issue, namely that Warhol utterly transformed the Goldsmith photograph into something new and distinctly meaningful.

Kagan went on to note that art is always created by borrowing. Fair use is supposed to provide “breathing room” for art to develop, she argued. The court’s approach, she concluded, “hampers creative progress and undermines creative freedom.”

To be sure, Kagan would no doubt point out that even unknown artists borrow and are vulnerable to infringement suits from more famous artists. And Sotomayor could say that important artists will be able to sue little guys under her test.

But the practical reality is that there is little reason for major, accomplished artists to go after minor ones, who don’t have the same resources or success. (The main exception is when big fashion brands go after counterfeits, but that’s usually more about trademark protection than copyright.)

That’s why the conflict between Sotomayor and Kagan comes down to a struggle over whom the court should favor: artists or art itself. Where your own answer lies can tell you something about how you see the purpose of art today.

Noah Feldman

Noah Feldman is a Bloomberg Opinion columnist and a professor of law at Harvard University. -- Ed.

(Tribune Content Agency)