Judge Kagan accuses Judge Sotomayor of hypocrisy in Warhol decision

  • The Supreme Court on Thursday ruled on a copyright law case featuring works by Andy Warhol.
  • In her dissent against the 7-2 majority, Justice Kagan accused her colleagues of hypocrisy.
  • Kagan said Sotomayor’s decision, drafted for the majority, “will inhibit the expression of new ideas.”

In her scathing dissent from the Supreme Court’s Thursday ruling against artists in a copyright case featuring a portrait of Prince by Andy Warhol, Justice Elena Kagan took aim at her colleagues, accusing them of hypocrisy and stifling creativity, while quoting Julie Andrews’ beloved film “The Sound of Music.”

The Court ruled 7-2 against the Andy Warhol Foundation in the high-profile case, ruling that the iconic artist infringed Lynn Goldsmith’s copyright in her portrait of Prince by creating an orange silkscreen of the photo. Warhol’s print was later licensed to media giant Condé Nast for $10,000 and was used on the cover of a magazine, and commercial use of the print was the basis of the copyright claim. ‘author.

Warhol Foundation attorneys and dissenting justices Kagan and Chief Justice John Roberts argued that the artist’s interpretation of the photograph altered the original enough to be considered “fair use” and not subject to copyright. The majority, in an opinion written by liberal Justice Sonia Sotomayor, disagreed.

“The use of a copyrighted work may nonetheless be fair if, among other things, the use is sufficiently distinct in purpose and character from the original,” Sotomayor wrote in his majority opinion. . “In this case, however, Goldsmith’s original photograph of Prince and AWF’s use of that photograph in a licensed special edition magazine image devoted to Prince essentially share the same purpose and the use is of a commercial nature.”

Supreme Court officials did not immediately respond to Insider’s request for comment.

Warhol, goldsmith

Prince’s photography by Lynn Goldsmith; Screenprint by Andy Warhol of Prince, featured on the cover of a Condé Nast magazine.

Supreme Court documents

Kagan, with Roberts agreeing, took issue with the majority’s characterization that Warhol’s print was not substantially different from Goldsmith’s photograph, pointing to the social commentary attributed to Warhol’s works and the high-pressure serigraphy process. labor intensity as determining factors of the work.

“There is very little evidence in today’s opinion that the majority actually viewed these images, let alone engaged with expert opinions about their aesthetics and meaning,” Kagan wrote.

Anyone, according to Kagan, the majority suggested, could have cropped, flattened, traced and colored the photo as iconic artist Warhol did. Instead, she argued, Warhol followed the artists and relied on existing materials to create their own new works.

“The majority attempt to minimize the visual differences between Warhol’s serigraph and Goldsmith’s photograph by rotating the first image and then superimposing it on the second,” Kagan wrote. “But the majority tries too hard: his manipulated image actually reveals the importance of the cropping and reorientation of the face that went into Warhol’s image.”

Quoting the 1965 film “The Sound of Music”, Kagan wrote: “‘Nothing comes from nothing’, dissent observes, ‘nothing ever could’. So somewhere in copyright law, there must be a “relief valve” to create something good.”

Kagan also pointed to a 2021 decision, Google LLC v. Oracle America, Inc., where the same panel of judges referred to Warhol’s artwork as protected by fair use, only to later revisit those arguments in this final decision.

“Majority claim not to be bothered by this embarrassing fact because the specific reference was to his soup cans, rather than his celebrity pictures,” Kagan wrote. “But to make a distinction between a ‘commentary on consumerism’ – that’s how the majority describes his soup canvases – and a commentary on celebrity culture, i.e. the turning of people into objects of consumption is to cut the baloney quite thin.”

While Sotomayor, for the majority, argued that the decision was made because of Warhol’s superstar status and that his print was being used for commercial purposes, Kagan argued that his impacts would go far beyond the big names and would instead crush innovation on artists’ fears of breaking the law.

“It will stifle creativity of all kinds,” Kagan wrote. “It will hinder new art, music and literature. It will thwart the expression of new ideas and the acquisition of new knowledge. It will make our world poorer.”


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