from the what-a-year dept
"So, we were just talking about the Supreme Court agreeing to take some cases that could determine the future of the internet
(as in, potentially ruining it), but before that it may be on the path
to could destroy some of the basics of art. Next week, the Supreme Court
will be hearing oral arguments in the Andy Warhol Foundation v. Lynn Goldsmith case. We’ve been writing about this case for a few years now, and it’s so important that we filed an amicus brief with the Supreme Court in the case to highlight some of our concerns regarding what will happen if they get this wrong (we don’t do that very often).
> There’s a lot of background here, but it’s worth understanding it to
understand what’s at stake in the case — so I’m going to just copy and
paste the background stuff from our 2019 article when the district court made the right call (before the 2nd Circuit screwed it all up). Here’s the background:
Photographer Lynn Goldsmith took a bunch of photos of Prince in 1981.
In 1984, Vanity Fair magazine (owned by Conde Nast) licensed
Goldsmith’s photographs for an article the magazine was doing about
Prince. The magazine then commissioned Andy Warhol to do a painting of
Prince based on Goldsmith’s photographs. That resulted in this 1984
spread:
Apparently Warhol actually created a bunch of paintings based on
Goldsmith’s photographs, most of which have been sold, and a few of
which are now in the Warhol museum. You can see all the images in the original complaint in this case.
After Prince died, Vanity Fair reran its article, and then teamed up
with some other Conde Nast publications, and put out a special magazine
called “The Genius of Prince” using one of Warhol’s other portraits.
There was some procedural oddness in all of this — because Goldsmith
claims that she knew about none of this until after that “The Genius of
Prince” magazine came out (even though she had licensed a photograph to
Vanity Fair, it appears that there was some confusion about that, and at
least Goldsmith claims she was never aware of the Warhol portrait based
on her photograph back in the 1980s). Goldsmith contacted the Andy
Warhol Foundation about the portrait, arguing that it was infringement.
The Foundation then filed for declaratory judgment against Goldsmith. It
made a bunch of arguments, including that the statute of limitations
(three years) had run out, but most of the case focused on the 2016
magazine, which made it still well within the statute of limitations.
Anyway, as noted, the district court made what seems clearly the
right call: this is obviously transformative fair use, and not
infringement. Unfortunately, the 2nd Circuit (which historically has
been pretty good on fair use) decided to flip over the table and say
“nope, not fair use.” As we said, this was an example of actual cancel culture, in that it was literally using the power of the law to cancel some important culture.
The Warhol Foundation appealed to the Supreme Court, and they agreed
to take the case (which is why we filed our amicus brief). The oral
arguments are next week. But for this article, I wanted to highlight a
fantastic article in The Atlantic by Paul Szynol saying that if the
Supreme Court upholds the 2nd Circuit ruling it could wreck American art.
That may sound like hyperbole, but it’s well argued. This is a hugely
important case that will have wide reverberations regarding whether or
not creators can rely on fair use in the future.
If you head over to Google Scholar, you’ll be greeted with an
invitation to “stand on the shoulders of giants,” an old (as in
medieval) homage to the trite but essential idea that art and science
build on existing work. (Google presumably uses it because Newton
referenced it in one of his letters.) If you’re a jazz musician, you
channel a rich library of standards. If you’re an architect, you apply
principles from earlier periods (or, in some tongue-in-cheek cases,
other areas of culture). If you code, you leverage existing libraries.
And so on. No one starts from scratch; no one creates in a vacuum: “A
hundred times every day,” Einstein wrote, “I remind myself that my inner
and outer life are based on the labors of other men, living and dead.”
But what if you’re barred from the building blocks that would allow you to create your project?
This is so, so important and… so, so little understood at times. It’s
also, somewhat oddly, something that often seems to be understood by
new artists… but forgotten by more established ones. Everyone learns to
create by copying others and then building, changing, modifying, putting
our own stamp on things. That’s how basically all creativity works.
Even if you’re doing something truly new and different (and it would be
hard to argue that’s true in this particular case), you have to truly
understand what’s been done to know how to do something different.
Copyright has always been messy around this. So much of learning to
be creative relies on, basically, infringing on copyrights. Most of the
time this is ignored — in what’s known as copyright toleration. But
lately, copyright toleration seems to be getting wiped out
by greedy copyright holders who want to get paid for every little use.
And, now they’re looking to take fair use down with them.
Szynol does such an amazing job highlighting just how fundamental all of this is to culture:
One of the favorite shibboleths among advocates of free
expression is that ideas are as free as the air. By itself, though, that
maxim leaves out the reason for its own importance. Ideas need to
remain free, because ideas like to connect to other ideas. They like to
find different media, different combinations, different modes of
expression, different audiences. The invitation to stand on the
shoulders of giants is literally built into stained glass at the
Chartres Cathedral, making the glass itself an example of the kind of
meld that happens when ideas remain free to join other bodies. To a
large degree, fair use lets that happen by allowing not only ideas but
their expressions to meld, too. It’s not just Warhol and Prince. Fair
use is the doctrine that allows us to record broadcast materials,
permits filmmakers to incorporate clips of existing materials into their
projects, and makes it possible for Google to show thumbnails of images
when we do a search. Without it, our cultural experience would be
markedly different, and certainly not better.
As he also notes, this entire case is really about those who view art as expression vs. those who see art as property.
This is the key point we tried to raise in our amicus brief. Copyright
long ago became the land that the 1st Amendment forgot. Just by
screaming “copyright” entire industries were able to stop judges from
even considering the 1st Amendment implications of the law, and the
ability to use copyright to silence expression in the name of protecting
“property.”
But copyright (in the US at least) was never meant to be a “property” right. It was created to benefit the public, and that meant by giving them access to works.
And, as the article notes, in this case, the expression is clearly
different and quite transformative from the original (a key aspect of
American fair use):
Warhol’s image transforms prince from the vulnerable and
uncomfortable three-dimensional person we see in Goldsmith’s photo into a
floating, two-dimensional, disembodied face emerging from smooth,
richly saturated color. The same faint sadness lingers in both images,
but, aesthetically, the two are far apart. Warhol’s image isn’t a mere
replica, in other words—it adds substantial expressive content that
conceptually and aesthetically distinguishes it from Goldsmith’s image.
The similarities that are there are, in turn, immaterial: They’re mostly
the mere result of Prince looking like, well, Prince, rather than
Goldsmith’s interpretation of him.
Even if the two images were the same, moreover, their meanings
would still be different. Goldsmith’s image highlights Prince’s
androgyny and vulnerability. Warhol’s underscores the cold
commodification of cultural icons. New meaning is the touchstone of
conceptual art—it’s why Duchamp’s urinal isn’t a urinal anymore—and the
touchstone of a fair-use analysis, too: If the secondary user adds new
meaning, the use is eligible for the fair-use exception. And of course
Warhol has to invoke Prince—and the photo of Prince—if he wants to
comment on both the musician and the way he’s portrayed in the media.
There’s also a really good discussion on the impact big Supreme Court
cases on fair use can have on culture (which you should go read…). But
the bigger point is that he notes that Lynn Goldsmith probably doesn’t
think she’s trying to destroy fair use and wreck American art, but that
might be the end result either way.
The Goldsmith camp could argue that it’s not attacking the
broader doctrine of fair use but merely a single use that isn’t fair in
the first place. That argument would be persuasive if this kind of use
had already been deemed outside the bounds of the doctrine. But it
hasn’t been; indeed, that’s precisely the question. Goldsmith is asking
the Court to banish this type of use, and, by virtue of that
prohibition, to constrain the doctrine itself. The challenge is directed
not only at these images or this particular type of use, in other
words, but at the shape and structure of fair use itself—which, from the
perspective of anyone who advocates for free and open expression, is an
attack on fair use itself.
This process usually happens out of sight, in courtrooms, private
settlements, studios, and edit rooms. When content creators remove
elements because they worry about lawsuits, they cover up their tracks,
and we don’t see the empty spaces left behind. We don’t know what we
don’t see, so we don’t miss it. But a diminished fair use leads to
diminished content and a diminished cultural experience. And, to quote Roger Waters, is this the life we really want?
So, off we go. Next week the Supreme Court gets to hear the
arguments, and hopefully decides to overturn the 2nd Circuit and go back
to supporting fair use, and recognizing it as a basic building block of
culture.
Filed Under: 1st amendment, andy warhol, copyright, fair use, lynn goldsmith, prince, supreme court
Companies: andy warhol foundation
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