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.