Before The Supreme Court Destroys The Internet, It Might First Destroy Art

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.

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Comments on “Before The Supreme Court Destroys The Internet, It Might First Destroy Art”

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25 Comments

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Anonymous Coward says:

Bias?

I miss the days when the articles showed less obvious bias. The combination of political bias and in depth analysis is a bit odd. Usually I see one without the other. Tech Dirt is an odd publication to act as a mouthpiece for the “social justice” movement. I used to think it was about technology.

It’s quite perplexing.

This comment has been deemed insightful by the community.
Rico R. (profile) says:

Re:

As long as I’ve been reading Techdirt, it has always been opinionated. And since when is copyright a “social justice” issue in that sense of the word? Copyright has typically been apolitical. Both good and bad copyright policies come from both sides of the aisle. Besides, no news article can be “unbiased”. Every article’s author will have some feeling of bias towards that particular issue, and even if they try to filter out their own opinions, their bias will still be present to some degree.

This comment has been deemed insightful by the community.
Stephen T. Stone (profile) says:

Re:

I miss the days when the articles showed less obvious bias.

And I miss the days when one political party in the U.S. wasn’t hell-bent on turning the country into a fascist nation-state dedicated to forced births and denying people of color the right to vote, but here we are.

PaulT (profile) says:

Re:

If only someone would present a counter-argument that was based in logic, facts and verifiable data, this site wouldn’t be so biased against people like you.

“I used to think it was about technology.”

People who paid attention, however, understood that it was an opinion blog intended to address subjects relating to law, society and other things not specifically related to tech, albeit things that often cross over into that subject.

“It’s quite perplexing.”

Which doesn’t mean that anyone else has a problem. If you’re confused and nobody else is, that doesn’t mean there’s a conspiracy, it might just mean you missed something.

This comment has been deemed insightful by the community.
Anonymous Coward says:

If the case goes the wrong way, the traditional publishers have a way to control markets, cross license derivative works, and license to those they choose to publish. Self publish, and the will find something your work is derivative of. That way they restore their role as the gate keepers of culture. Assigning licensing rights would become part of the publishing contract.

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ThorsProvoni (profile) says:

Has Masnick Every Read the Constitution?

The Intellectual Property Clause from the US Constititon.

Article I, Section 8, Clause 8:

[The Congress shall have Power . . . ] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Masnick might find it useful to read this section of the Constitution Annotated.

Scary Devil Monastery (profile) says:

Re:

Masnick probably has read the constitution. You, otoh, seem to not grok english.

“Shall have power”. Means it’s optional. Not mandated.

This is why the similarly phrased articles and amendments don’t obligate congress to introduce any specific taxation rate, for instance.

And you completely missed the bit where it says “to promote the progress of science and useful arts” where, by any definition, intellectual property fails the litmus test.

Copyright is a rent-seekers dream. Nothing more. Nothing less.

But I see your ill-conceived and embarrassing ‘gotcha’ is already voted into oblivion as it deserves.

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ThorsProvoni (profile) says:

Did the Author Every Read the Constitution?

The Intellectual Property Clause from the US Constititon.

Article I, Section 8, Clause 8:

[The Congress shall have Power . . . ] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

The author might find it useful to read this section of the Constitution Annotated.

This comment has been flagged by the community. Click here to show it.

This comment has been deemed insightful by the community.
Stephen T. Stone (profile) says:

Re:

US copyright law is weak in comparison with copyright law in other countries

Good. Copyright is an enemy of free expression and culture, especially when used as a tool of censorship (e.g., DMCA takedowns of legally protected speech). Copyright maximalism only ever plays into the hands of the corporations that own and control a majority of copyrights (and the works associated with them), all of which would sooner kill you where you stand and drain your bank account to make up for the trouble you caused them than give up anything to the public domain.

I’ve never seen anyone defend copyright in a way that doesn’t also defend moneyed interests using copyright to stifle speech and kill the public domain. But hey, maybe you’ll do what literally every other copyright maximalist who’s ever commented here has never been able to do⁠—after all, you’re doing a bang-up job of proving how social media is a common carrier~.

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Anonymous Coward says:

Re:

US copyright law is weak in comparison with copyright law in other countries

Is that so?

I thought that a predominant argument put forth by the RIAA and MPA was that the US enjoyed strong copyright laws, which is why US-produced entertainment is so popular around the globe at very high quality compared to other places like Europe.

Now you’re saying that the US actually has weaker copyright law compared to other countries. So weaker copyright law actually leads to better entertainment being produced – and more of it, at that? Is that the argument you’re trying to put forth? It’s probably not the argument you want to put forth, but if you’re trying to argue that even stronger copyright law is required… you’re doing a terrible job of it.

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ThorsProvoni (profile) says:

Re: Re: Not Making an Argument

Until I filed Martillo v. Twitter, I did not really do work with copyright unless a copyright issue related to patent law or to telecommunications law, but I have a number of colleagues, who work both in the area of US copyright law and also in the area of international copyright law. All seem to agree that the US has one of the weaker copyright regimes among nations.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: Re: Re:2

Because to liars like “Mr. Provoni”, strong copyright law can be used for force, sorry, compel certain speech onto platforms that have clearly exercised their 1A rights to not associate with someone who espouses clear and actual Holocaust denial.

Besides, the entire world’s copyright regimes are modelled after the “weak” American model. Some states simply abuse that weakness to that the state has PLENTY of control over copyright when needed. Like China for instance.

Anonymous Coward says:

Re: Re: Re:

All seem to agree that the US has one of the weaker copyright regimes among nations.

And the same pro-copyright camp also claim that US copyright laws as they stand are the reason for why US-produced entertainment is so heavily sought after, consumed and exported worldwide. Especially in comparison to Europe, which they have historically claimed to have weaker copyright laws by comparison.

If what you claim is true and the US does indeed have weaker copyright laws, it stands to reason that those same “weaker” conditions have allowed for stronger US culture to be created. So, again, is that the argument you actually want to push here? Do you want to scupper your own entertainment industry because you think some execs in the RIAA haven’t been deep-throated enough?

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Verisimilidude (profile) says:

Photographer's rights in commercial transactions

I usually find Techdirt’s view of the facts of a case deep and the analyses insightful even if I don’t agree with where they end up (which happens rarely). Here however I think they have missed the proper view of the facts and their analysis ends up in the wrong place.

This case is (should be?) about the rights of a photographer to control their copyright when the work is used by a licensee. It is a high skill take someone’s photo and capture the right expression, mood, and nuance desired by a client. And the publishers who commission this work do not really pay all that well when summing over the work of one photographer for a year. It is the rare publisher that will buy “all rights” and pay residuals for additional uses. Usually, as appears to have occurred in this case, they will buy “one time use” for a single image while wanting to see a “spread” of images from a commissioned shoot. And often they may not even have the courtesy of telling the photographer which image they have licensed or send them a copy of the publication where it appears.

So here the commissioned image was passed on to another artist who, under commission, made a transformation under the license granted by the photographer. The publisher in effect told the second artist “Make something that emphasizes what the photographer captured.”

The second commissioned artist did more than the license that the photographer was paid for allowed them to do. It seems to me straightforward that if the second artist wants to profit from this they should pay the photographer.

I can see the point that if Warhol had been inspired by seeing Prince on a magazine cover that he should be able to claim fair use and get his artistic inspiration from the visual aspects of the society he lives in. And take their chances on whether they could sell that work as opposed be being paid to transform a specific work.

Hopefully the Supreme Court can come up with a way to distinguish a commercial chain like we have here from the right to be artistically inspired by our surroundings.

And photographers are often victims of IP run amok too. Photographing graffiti can get them in trouble if the photo is sold. Some companies have trademarked the exteriors of their buildings and insist that a license fee be paid before a post card can be sold. Art Directors will cut up one photographer’s work and then commission another photographer to reproduce it down to the time of day and position of background figures.

Photographers need to control the use of their work. Artists need to have a clear definition of inspiration from the culture and “inspiration” by commercial contract.

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