Supreme Court v. Andy Warhol (2023)

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A few days ago, the Supreme Court attempted to answer a question that has long puzzled the art world. When is borrowing from a previous artist an act of inspiration and when is it theft? Today Adam Liptak talks about a case that could change the way art is made.

It's Tuesday, May 23.

Adam, if you could spoil me for a moment, how would you describe your relationship with the visual arts?

I am a dilettante. My wife takes me to many museums. I try to be a civilized person.

That's stylish. And what do you think about Andy Warhol specifically?

You know, Warhol has such a presence in popular culture, even though a lot of what he does is appropriate and comments on celebrity culture.

Even if reading between the lines, not everyone, including you, agrees that everything Warhol does is art. And to give you my perspective and experience with it, Warhol to me is a bath time book that I read to my son Ash. If you wet the pages, book illustrations, Brillo block boxes and Campbell's soup cans take on a different hue. I mean, that's how Andy Warhol became ubiquitous. He's in the bath.

To the right. And museums around the world have exhibited his works, and they are worth hundreds of millions if not billions of dollars in total.

To the right. And the reason we're talking to you about Warhol isn't because we're here to discuss the relative merits or appreciation of his works, but because he's the subject of a pretty significant Supreme Court ruling that came out a few days ago, and I think that's kind of been lost in the mix with news. Tell us about this case.

You know, Michael, we talk a lot about emergencies, which are big social issues -- abortion, affirmative action, gay rights, religion. But the court can also make very important and important decisions about various aspects of American life. And in this case, which broke out a few days ago, the pretty big question is what artists can do and how much they can use, reference, interact with, or if it crosses the line of copyright infringement.

In other words, the Supreme Court was concerned with the question of when art is appropriated, when it is borrowed and when it is stolen.

To the right. Or when it is such a transformation that something completely new arises or something that can be protected?

And where does this case begin, Adam?

It starts in 1981 when rock musician Prince starts to become famous.

His album "Controversy" is released.

Vodi Saturday Night Live.

And acclaimed rock photographer Lynn Goldsmith thinks it's about time she snapped some shots with him. He receives an assignment from Newsweek magazine. He takes some concert photos and some portraits.

And one portrait in particular that will be the focus of this case, in black and white, shows Prince feeling uneasy and vulnerable. It is an impressive photo of a young rock musician.

Mm-hmm.

A few years later, in 1984.

— Prince becomes a superstar. His album "Purple Rain" is released.

And Vanity Fair wants to write an article about him and asks Andy Warhol, a very prominent artist, to illustrate that.

And they bought one of Lynn Goldsmith's portraits for Warhol as an art reference, paid her $400 and told her they would use it one day. And Warhol went to work and changed the picture. Somehow he breaks it off. He dyes it purple. It kind of overshadows Prince's eyes. And it's a very different kind of disembodied head that art critics say isn't a lonely, awkward portrait of Prince, but a kind of take on a modern celebrity, the art critics say. That's why Vanity Fair is publishing this screenprinted Warhol painting based on a Goldsmith photo.

Mm-hmm.

Warhol also goes ahead and creates 15 more variations of Goldsmith's picture. And that's common with Warhol. They will do different versions of celebrity photos.

Right, the Marilyns and so forth.

To the right. And when Warhol dies in 1987, these paintings and all of his other artwork and all copyright will go to the Andy Warhol Foundation for the Visual Arts. Then, in 2016, Prince himself dies and Conde Nast, his parent company Vanity Fair, puts together a special magazine to celebrate Prince's life and wants to find the cover photo.

It went to the Annie Warhol Foundation and it said, "What have you got?" And they took another picture from that series and put it on the cover and paid the Foundation $10,000, and Lynn Goldsmith got no money or credit. And when she becomes aware of this use of her work, she says, "Wait a minute, that's copyright infringement." You can not do that.

And what does the Warhol Foundation say about it?

The Warhol Foundation is filing a lawsuit.

huh And why did they sue and make this argument? Because they could just pay them off, right?

We're not aware of the settlement negotiations, but we're aware of the litigation — attorneys for the Warhol Foundation said Goldsmith was asking for a fairly substantial seven-figure sum. But the lawsuit has a greater purpose, and that purpose should be close to the heart of the Warhol Foundation, because it touches the core of Warhol's work. And they want to argue that under copyright laws and the so-called fair use exception to copyright infringement, it's important to leave room for later artists to use earlier works.

Mm-hmm.

That is why the Warhol Foundation strives to make it clear that artistic expressions that build on, internalize and transform previous works should be protected.

To the right. So for the Warhol Foundation, it's not about paying, suing, whatever. This is more of an existential question of whether an artist like Warhol can practice his craft, which involves borrowing and appropriating on a fairly large scale.

That's right. And the court has already considered that question in a slightly different context.

In 1994, in the case between the rap group 2 Live Crew and Roy Orbison, one of the founders of rock and roll -

(SINGING) A beautiful woman is walking down the street. A beautiful woman, the kind I like to meet.

— 2 Live Crew wanted to have some fun with Roy Orbison's hit "Pretty Woman."

And replace the beautiful woman with other characters.

Like a big hairy woman.

That's right, a woman with two kids. I know this song. [LAUGHTER]

The holders of those rights to the Orbison song clearly said no, we don't want to be involved in a parody that turns a beautiful woman into a hairy woman. No thanks.

2 Live Crew does it anyway and takes the risk and takes the winner. You are being sued. And the Supreme Court said, "If it's a parody, it's in the nature of fair use that commentary, criticism, and parody are protected, because you couldn't do it otherwise."

So I realized, from the point of view of the Warhol Foundation, it seems like a very big and very important precedent to rely on, and her conflict with Lynn Goldsmith seems to support Warhol's approach to art, which is cumulative. It's borrowed. That's what 2 Live Crew did with Roy Orbison.

So that's mostly true, although there might be one key difference. As 2 Live Crew discusses and comments on the earlier work, it's unclear if Warhol is saying anything about the Goldsmith photo. He uses it, yes, but does he really do it? Does he actually say anything about it? Or would he just have gone to another picture of Prince and put his Warhol number on this one?

So there is a real gray area in this Warhol lawsuit. So, tell us about the hearings in this case after it has been heard by nine Supreme Court justices.

So Warhol Foundation attorney Roman Martinez makes two base points, one focused and one pretty big.

The main argument is that he claims that you just look at Warhol's work and you will see that it has a fundamentally different message, that its meaning is different from that of a photograph, and therefore should be protected.

Mm-hmm.

His more important point is that this is not any image of a prince. It's about the way art works.

And that a lot of (visual) art, music and literature work because the later work builds on the earlier work and comments on it in dialogue with it.

And if the Supreme Court were to say that copyright law is so strict that it does not allow this kind of expression, it would seriously harm the artist community.

This hurts not only Warhol, but basically every artist who does what Warhol does, and there are thousands of them.

Yes, definitely visual art, but also all kinds of art.

And what about the other side, Adam? What are Lynn Goldsmith's lawyers telling the judges?

According to Goldsmith's attorney, Lisa Blatt, the question is not whether Warhol was a genius or an artist. The question was whether he or his foundation should have paid Goldsmith when he built on their work, and whether there should be a Warhol exception for this genius.

She had this beautiful line: Copyright will be at the mercy of copycats if the court rules in Warhol's favor.

So both sides seem to be using the most extreme arguments I can think of. Judges also seem to take rather extreme positions when commenting on the case.

We will be right back.

So, Adam, what did the judges say at the hearing in this case about Warhol, Goldsmith and the merits of this case?

There are roughly two currents. Some judges, most of them not allies, seem genuinely impressed with the quality of Warhol's art and suggest that, at least when it comes to Andy Warhol, he should be given some space.

hmm Which judges?

Chief Justice John Roberts and Judge Kagan.

Roberts fully believes in the idea that Warhol is delivering a different message.

And Kagan asks, in a more informal way: How come museums around the world are exhibiting Warhols?

This suggests that the answer to the question in this case, at least in Warhol's case, is that he needs to be protected.

So what Roberts and Kagan share here, aside from the fact that they seem to have studied art history in college and want everyone to know, is that Warhol's interpretation of Prince's original photo isn't a copy at all. And that makes legal sense here given the priority and nature of the case.

To the right. Other judges were less pompous and more skeptical of the Warhol Foundation's arguments. For example, Judge Alito asked:

How do I determine the meaning of a work of art? I didn't learn that in law school.

Mm-hmm.

And the Warhol Foundation lawyer says, Let's look at the 2 Live Crew case.

He says the court at the time looked at the song and decided it had a different meaning than Roy Orbison's song, but it changed, and that was the court's business.

Mm-hmm.

And Alito says, "It sounds easy, but I'm not sure we're really up to the task."

mm So Alito says, "I'm not comfortable calling this such a transformation of the original artwork that I can empathize with Warhol the way Kagan and Roberts did."

That's right. And other judges who are also hostile to the Warhol Foundation, such as Justices Sonia Sotomayor and Neil Gorsuch, are focused on the practicalities of the case, the specific transactions between Vanity Fair and Condé Nast.

Mm-hmm. And what does Sotomayor say?

Sotomayor says this is actually a tight market.

It is a marketplace for selling images or prints to magazines. And one can discuss all sorts of other uses of what Warhol can and can't do. But if Lynn Goldsmith can sell photos of prints to magazines, and Andy Warhol can sell photos of Lynn Goldsmith prints to magazines with some Warhol stuff on top, she finds that too obvious a consolation. That, she says, is what copyright is supposed to protect: your chance to sell your work in the same marketplace as someone else.

hmm In other words, they both draw water from the same well. And she's not worried about the big artistic idea. Sotomayor says Warhol borrowed a photograph from Goldsmith, sold it to a magazine, and then returned to the same magazine market with derivative works of art. And with that, he's actually stealing food from their table.

That's right. So by the end of the argument, it seemed that a majority - perhaps a skewed majority - of the court was prepared to rule in Goldsmith's favor.

Okay, tell us the final decision in this case.

In the end, the verdict was 7 to 2 in favor of Goldsmith. Judge Sotomayor writes the majority opinion and, in a sense, follows her own line of inquiry in the dispute over whether the Warhol Foundation should pay Goldsmith a fee, at least in connection with licensing images to magazines. If you sell printed images to magazines and find yourself in the same situation as a photographer whose work you used, copyright laws require you to pay her a fee.

Mm-hmm.

She suggests that a different decision could lead to more commercial copies of photographs being used for essentially the same purposes as the originals.

So the majority believe that this is ultimately some kind of minor copyright infringement and that Warhol owes Goldsmith money. But I'm amazed at the language Sotomayor uses - "essentially the same." She more or less takes the position that what Warhol ended up doing didn't change that much from Goldsmith's original photo.

That's right. Two of the dissenters, Chief Justice Roberts and Justice Kagan, pointed out to her that Sotomayor was actually downplaying what Warhol had done here. And Judge Kagan, who drafted the dissenting opinion, was rather harsh in her criticism of what she saw as the majority's lack of imagination, taste, or anything like that.

She wrote: “Most people don't see it and I literally mean it. As things stand, there is little evidence that the majority actually looked at those paintings, let alone wrestled with expert opinions about their aesthetics and significance. new art, music and literature. It will thwart the expression of new ideas and the acquisition of new knowledge. It will make our world a poorer place." So while the majority tries to downplay the matter, the dissenters claim it's huge.

Let's reconsider Judge Kagan's prediction. What does this verdict mean for the art world? According to Kagan and Roberts, this disagreement will have lasting and quite negative consequences.

I understand it's too early to tell. Definitely tried to write it small and focused, targeting commercial transactions in the same direction. But almost all art consists of commercial transactions. And what impact that decision will have depends on whether the original artists and later artists work in the same direction. And we still don't know how wide those strips are.

Or how narrow those strips are.

To the right. So think about it like this. Hang one photo from the Prince series in a museum, probably not on the same shopping street. But what about a postcard in a gift shop? A postcard with one of these pictures of the prince hangs in the museum. The museum may also have postcards of Lynn Goldsmith's work. She is a famous rock photographer. Does this mean we're on the same track again in this situation and that Goldsmith is entitled to a piece of Warhol's postcard?

hmm According to the legal research prepared by the majority, this seems to be the case.

You would think so, yes.

And those who think otherwise say it's a can of worms you don't want to open.

To the right. Dissenters say it will affect not only visual artists, but also writers, musicians and filmmakers. And some of them will try to license the underlying work they want to build on, but they can't pay the fee, or they will find that the owner of the underlying work has no interest in licensing anything.

And some others will think: I would like to make new art based on old art, but I'm afraid and I'm going to do something else instead. So there's good reason to believe that Judge Kagan's disagreement may be a little over the top. But at least at the edges, it can suppress valuable works of art.

But of course there is another way to look at this result, Adam, and that is that a new generation of artists born after such a judgment finds borrowing from previous artists too risky and a wave of original creative art, music and literature unleashes that which is not. so dependent on everything and everyone from the past. I would call that a crystal clear interpretation of the case of the Supreme Court.

To the right. It's a really nice, optimistic idea that goes against millennia of experience of how art works.

[LAUGHS]: Well Adam, at the risk of being very distracted from what I say at the end of each episode, thank you very much.

Thank you Michael

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We will be right back.

Here's what you need to know today. With just days to go before the US hits the debt ceiling and cannot pay its bills, Democratic and Republican negotiators are increasingly turning to the idea of ​​spending caps that would limit future spending as the basis for a debt ceiling deal that would end the crisis.

If both parties agree to such a spending cap, Republicans could claim they have made concessions on Democrats' spending, and Democrats could claim fiscal responsibility without requiring Republicans to cut back on popular domestic programs. Without a deal, the US will reach the debt ceiling next week.

And on Monday, the European Union fined Meta, Facebook's parent company, $1.3 billion and ordered it to stop transferring data collected in Europe to the United States. The EU found that Meta failed to comply with a 2020 ruling that European data sent to the US was not adequately protected from US spy agencies. Meta said she would appeal the sentence.

Tonight's episode is produced by Rob Szypko, Diana Nguyen and Sydney Harper. It was edited by John Ketchum and MJ Davis Lin, features original music by Dan Powell and Elisheba Ittoop, and was engineered by Chris Wood. The music for our theme is by Jim Brunberg and Ben Landsverk of Wonderly.

That's it for Dnevnik. And as a reminder, this week, watch our new show, The Headlines, right here on The Daily feed. We made it for you. I hope you like it. Go to nytimes.com/AudioApp to find it. I'm Michael Barbara. I'll see you in the morning.