The Supreme Court vs. Andy Warhol (2023)

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A few days ago, the Supreme Court tried to answer a question that has long bedeviled the world of art. When is borrowing from an earlier artist an act of inspiration and when is it theft? Today, Adam Liptak on the case that could change how art is made.

It’s Tuesday, May 23.

Adam, if you’ll just indulge me for a moment, how would you describe your relationship to fine art?

I’m a dilettante. My wife takes me to a lot of museums. I try to be a cultured person.

That’s noble. And what are your specific thoughts about Andy Warhol?

You know, Warhol is so present in the popular culture even though much of what he does is appropriate and comment on the culture of celebrity.

Even though, if I’m reading between the lines, not everyone, including you, even agrees that everything Warhol does is art. And just to give you my perspective on this, my experience with it, Warhol for me is a bath book that I read to my son Ash. If you get the pages wet, the pieces of art in the book, the Brillo pad boxes, the Campbell’s Soup cans, they turn a different shade of color. I mean, this is how ubiquitous Andy Warhol has become. He is in the bathtub.

Right. And museums around the world display his work, and it’s worth cumulatively hundreds of millions, if not a billion dollars.

Right. And the reason we’re talking to you about Warhol is not because we’re here to debate the relative merits or valuations of his pieces but because he is the subject of a pretty important Supreme Court ruling, one that came down a few days ago and that I think got a little bit lost in the shuffle of the news. So tell us about that case.

So you know, Michael, we often talk about the blockbuster cases involving huge social issues — abortion, affirmative action, gay rights, religion. But the court also can issue quite important, consequential decisions about all kinds of areas of American life. And this case that came down a couple of days ago involves a quite large question about what artists can do and how much they can make use of, draw on, engage in a conversation with earlier works or whether that crosses a line of copyright infringement.

In other words, the Supreme Court weighed in on when is art appropriation, when is it honorary borrowing, when is it theft.

Right. Or when is it such a transformation that it’s created something wholly new or protectable in its own right.

And where does this case, Adam, begin?

It starts in 1981 when the rock musician Prince is starting to get famous.

His album “Controversy” comes out.

He hosts “Saturday Night Live.”

And a prominent rock photographer Lynn Goldsmith thinks it’s time to get some photographs with him. She gets a commission from Newsweek magazine. She takes some concert photos and some portraits.

And one portrait in particular, which will be at the center of this case, black and white, shows Prince kind of ill at ease, vulnerable. It’s a striking photograph of a young rock musician.

Mm-hmm.

A couple of years later, 1984 —

— Prince is turning into a superstar. His album “Purple Rain” is coming out.

And Vanity Fair wants to do an article on him and asks Andy Warhol, the very prominent artist, to illustrate it.

And they obtained for Warhol one of Lynn Goldsmith’s portraits as an artist’s reference, and they pay her $400 and tell her they will use it once. And Warhol gets to work and alters the photograph. He kind of crops it. He colors it purple. He sort of shades Prince’s eyes. And it’s a very different looking kind of disembodied head that art critics say is not that kind of lonely, ill at ease portrait of Prince but is a kind of view of modern celebrity, or so the art critics say. So Vanity Fair publishes that silkscreen image by Warhol based on the Goldsmith photo.

Mm-hmm.

Warhol also goes off and creates 15 other variations on the Goldsmith photo. And this is common with Warhol. He will do various versions of photos of celebrities.

Right, the Marilyns, et cetera.

Right. And then when Warhol dies in 1987, those images and all of his other artwork and all of the copyrights in them go to the Andy Warhol Foundation for Visual Arts. Then in 2016, Prince himself dies, and Vanity Fair’s his parent company Conde Nast puts together a special magazine celebrating Prince’s life, and it wants to find a cover image.

And it goes to the Annie Warhol Foundation and said, what do you got? And they take a different image from this series and put it on the cover and pay the foundation $10,000, and Lynn Goldsmith gets no money and no credit. And when she becomes aware of this use of her work, she says, wait a second, that’s copyright infringement. You’re not allowed to do that.

And what does the Warhol Foundation have to say about that?

The Warhol Foundation launches a lawsuit.

Huh. And what is their rationale for filing a lawsuit and making that argument? Because they could just have paid her off, right?

We’re not privy to the settlement negotiations, but the argument — the Warhol Foundation’s lawyers said that Goldsmith had asked for a quite substantial seven figure sum. But the lawsuit also has a larger purpose, and it’s a purpose that the Warhol Foundation has to care deeply about because it goes to the heart of Warhol’s work. And they want to make the case that under the copyright laws and under the so-called fair use exception to copyright infringement, it’s important to create some space for later artists to make use of earlier works.

Mm-hmm.

So the Warhol Foundation is trying to make a point about the need to protect artistic expression that builds on, appropriates, and transforms earlier works.

Right. So for the Warhol Foundation, this is not about one payment, one lawsuit, one anything. This is a more existential question of whether an artist like Warhol gets to practice their craft, which involves borrowing and appropriating on a pretty large scale.

That’s right. And the court has looked at this question in a slightly different context before.

In 1994, in a case involving the rap group 2 Live Crew and Roy Orbison, one of the founding fathers of rock and roll —

(SINGING) Pretty woman walking down the street. Pretty woman, the kind I like to meet.

— 2 Live Crew wanted to have some fun with the Roy Orbison hit “Pretty Woman.”

And substitute other characters for pretty woman.

Like big hairy woman.

Right, and two-timin’ woman. I know the song. [LAUGHS]

The owners of those rights of the Orbison song flatly said, no, we don’t want to be involved in a parody that transforms a pretty woman into a hairy woman. No thank you.

2 Live Crew does it anyway, takes its chances, has a big hit. They get sued. And the Supreme Court said, well, if it’s parody, that’s in the nature of fair use that comment, criticism, parody gets protected because otherwise you couldn’t do it at all.

Got it. So from where the Warhol Foundation sits, it looks like a very big and very important precedent case that it can call upon, and its dispute with Lynn Goldsmith would seem to favor Warhol’s approach to art, which is cumulative. It is borrowish. It is what 2 Live Crew did to Roy Orbison.

So that’s mostly right, although there may be a key distinction. Where 2 Live Crew is engaging with and commenting on the earlier work, it’s not clear that Warhol is saying anything about the Goldsmith photo. He’s using it, yes, but is he actually engaging with it? Is he actually saying something about it? Or could he just have easily gone to any other photograph of Prince to do his Warhol number on that photograph?

So there’s some real gray area in this Warhol lawsuit. So tell us about the oral arguments in this case once it hits the nine justices of the Supreme Court.

So the lawyer for the Warhol Foundation Roman Martinez makes two basic points, one focused and one quite large.

The focused argument is that he maintains that all you need to do is look at the Warhol piece and you will see that it conveys a fundamentally different message, that its meaning is different from the photograph, and that it should be protected for that reason.

Mm-hmm.

His larger point is that it’s not about one image of Prince. It’s about the nature of how art works.

And that lots of visual and other kinds of art, music, literature works because the later work is building on, commenting on in dialogue with the earlier work.

And for the Supreme Court to say that the copyright law is so rigid that it doesn’t allow for that kind of expression would do grave damage to the artistic community.

Not just damage to Warhol but basically to any artist who does what Warhol does, of which there are thousands.

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

And what about the other side, Adam? What do lawyers for Lynn Goldsmith tell the justices?

Goldsmith’s lawyer Lisa Blatt says the question isn’t whether Warhol was a genius or an artist. The question was whether he or his foundation should have paid Goldsmith when he built on her work, that there should be no kind of Warhol exception for this genius.

She had this nice phrase — copyrights will be at the mercy of copycats if the court rules for Warhol.

So both sides seem to be making the most extreme arguments they can think of. And the justices, as they weigh in on the case, also seem to be staking out quite extreme positions.

We’ll be right back.

So Adam, during the oral arguments in this case, what do the justices have to say about Warhol, Goldsmith, and the merits of this case?

There are basically two schools of thought. A couple of the justices, and they’re not typically allies, really seem to be taken by the quality of Warhol’s art and suggest that at least when we’re talking about Andy Warhol you really ought to let him have some room to maneuver.

Hmm. Which justices?

Chief Justice John Roberts and Justice Kagan.

Roberts completely buys in to the idea that Warhol is sending a different message.

And Kagan, in slightly more colloquial terms, asks the question of how come museums all over the world have Warhols in them?

That suggests that the answer to the question in the case, at least in the case of Warhol, she says, is that he ought to be protected.

So what Roberts and Kagan are communicating here, besides the fact that they seem to have taken art history in college and want everyone to know it, is that Warhol’s take on the original Prince photo is not at all a copycat. And that’s legally meaningful here given the precedence and given the nature of the case.

Right. And other justices spoke in less highfalutin terms and were more skeptical of the Warhol Foundation’s arguments. And Justice Alito, for instance, asked —

How am I supposed to decide what the meaning of an artwork is? That’s not what I learned in law school.

Mm-hmm.

And the lawyer for the Warhol Foundation says, well, let’s look at the 2 Live Crew case.

He says, back then, the court looked at the song and decided it had a meaning that was distinct from but transformed the Roy Orbison song, and that’s judicial work.

Mm-hmm.

And Alito says, you make it sound easy, but I’m not sure we’re really up to the job.

Mm. So Alito is saying, I’m not comfortable declaring this to be such a transformation of the original artwork that I can sympathize with Warhol the way Kagan and Roberts have.

That’s right. And other justices also hostile to the Warhol Foundation, like Justices Sonia Sotomayor and Neil Gorsuch, are focused on the practical questions in the case, the particular transactions between Vanity Fair and Conde Nast.

Mm-hmm. And what does Sotomayor have to say?

Sotomayor says, what’s really at issue here is a narrow marketplace.

It’s the marketplace of selling pictures of prints to magazines. And you can argue about all kinds of other uses of what Warhol can do and can’t do. But if Lynn Goldsmith can sell photographs of prints to magazines and Andy Warhol is selling a photograph of prints created by Lynn Goldsmith with some Warhol stuff on top of it to magazines, that, she says, is too close for comfort. That, she says, is what copyright is meant to protect — your opportunity to sell your work in the same marketplace as the other guy.

Hmm. In other words, they’re both taking water out of the same well. And she isn’t worried about some grand artistic idea. Sotomayor is saying that Warhol has borrowed from a Goldsmith photo, sold to a magazine, and then used a derivative piece of art to kind of muscle his way back into that same magazine marketplace. And thereby he’s basically stealing food from her table.

That’s right. So by the end of the argument, it seemed that a majority — maybe a lopsided majority — of the court was prepared to rule for Goldsmith.

OK, so walk us through the ultimate ruling in this case.

So in the end, the ruling was 7 to 2 in favor of Goldsmith. Justice Sotomayor writes the majority opinion, and it kind of tracks her questioning at the argument, which focused on whether the Warhol Foundation was required to pay a fee to Goldsmith at least in the context of licensing images to magazines. If you’re selling pictures of prints to magazines and you’re in the same lane as the photographer whose work you were drawing on, you have an obligation under the copyright laws to compensate her.

Mm-hmm.

She says to hold otherwise would potentially authorize a range of commercial copying of photographs to be used for purposes that are substantially the same as those of the originals.

So the majority’s ruling here is that this is ultimately a kind of small-scale copyright infringement, and Warhol owes Goldsmith money. But I’m struck by the language that Sotomayor uses — “substantially the same.” She’s kind of taking the position that what Warhol did wasn’t ultimately all that transformational of Goldsmith’s original photograph.

That’s right. And she’s called out on that by the two dissenters, Chief Justice Roberts and Justice Kagan, that Sotomayor really minimizes what Warhol has done here. And Justice Kagan, who wrote the dissent, was quite slashing in criticizing what she viewed as a failure of imagination or taste or something by the majority.

She wrote, “The majority does not see it, and I mean that literally. There is precious little evidence in today’s opinion that the majority has actually looked at these images, much less than it has engaged with expert views of their aesthetics and meaning.” Kagan also — she says the majority decision will “stifle” creativity of every sort. It will impede new art and music and literature. It will thwart the expression of new ideas and the attainment of new knowledge. It will make our world poorer.” So just as the majority tries to make the case small, the dissent says it’s huge.

Well, let’s interrogate that prediction from Justice Kagan. What does this ruling mean for the world of art? If Kagan and Roberts are to be believed from that dissent, it will have a lasting and quite negative impact.

My understanding is it’s too soon to tell. The majority certainly tried to write it in a small and focused way, concentrating on commercial transactions in the same lane. But almost all of art consists of commercial transactions. And what the impact of the decision will be will turn on whether the original artists and the later artists are working in the same lane. And we don’t know yet how broad those lanes are.

Or how narrow those lanes are.

Right. So think about it this way. Hanging one of the Prince series images in a museum, probably not the same commercial lane. But what about the postcard in the gift shop? A postcard of one of these Prince images that’s hanging in the museum. The museum may well also have postcards of Lynn Goldsmith’s work. She’s a noted prominent rock photographer. Does that mean that in that setting we’re also, again, in the same lane and Goldsmith is entitled to a cut of the Warhol postcard?

Hmm. By the legal test set up by the majority, it seems that it would.

You would think so, yeah.

And the dissenters are saying that is a can of worms you don’t want to open.

Right. The dissenters say it will affect not only visual artists but writers and musicians and film makers. And some of them will try to license the underlying work that they want to build on and won’t be able to afford that license fee or maybe will be told that the underlying work’s owner is not interested in licensing something.

And some others are going to think, I would like to create new art that draws on old art, but I’m scared and I’m going to go do something else instead. So there is good reason to think that Justice Kagan’s dissent might be a little overblown. But at least at the margins it might stifle some valuable artwork.

But of course, there’s another way to see this outcome, Adam, which is that a new generation of artists born into the aftermath of a ruling like this sees borrowing from previous artists as too risky and it unleashes a wave of original creative art and music and literature that is not as reliant on everyone and everything from the past. I would call that the glass half full interpretation of the Supreme Court case.

Right. That is a very nice, optimistic idea that’s at odds with millennia of experience of how art works.

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

Thank you, Michael.

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We’ll be right back.

Here’s what else you need to know today. With just days left before the US hits the debt ceiling and can no longer pay its bills, negotiators for Democrats and Republicans are increasingly focused on the idea of spending caps which would limit future spending as the basis for a deal that would raise the debt ceiling and end the crisis.

Such spending caps, if agreed to by both sides, would allow Republicans to claim they have won spending concessions from Democrats and allow Democrats to argue they’re being fiscally responsible without letting Republicans slash spending on cherished domestic programs. Without a deal, the United States will hit the debt ceiling next week.

And on Monday, the European Union fined Meta, the parent company of Facebook, $1.3 billion and ordered the company to stop transferring data collected in Europe to the United States. The EU found that Meta had failed to comply with a 2020 ruling that European data shipped to the US was not sufficiently protected from American spy agencies. Meta said it will appeal the fine.

Today’s episode was produced by Rob Szypko, Diana Nguyen, and Sydney Harper. It was edited by John Ketchum and MJ Davis Lin, contains original music by Dan Powell and Elisheba Ittoop, and was engineered by Chris Wood. Our theme music is by Jim Brunberg and Ben Landsverk of Wonderly.

That’s it for “The Daily.” And just a reminder, all this week you’re going to see our new show “The Headlines” right here in “The Daily” feed. We made it for you. I hope you like it. To find it, go to nytimes.com/AudioApp. I’m Michael Barbaro. See you tomorrow.