On Wednesday morning, the Supreme Court heard oral argument in a case that could redefine the legal concept of transformative fair use.
Back in 1994, the Court had a landmark ruling on transformative fair use that has stood until today.
In Campbell v. Acuff-Rose Music, Inc.,the Court held that the petitioner’s artistic creation of a rap parody version of a popular Roy Orbison song was transformative fair use because it took the Orbison song and transformed it by adding a new purpose, meaning, or message.
And this is exactly where we find ourselves today. In the last 28 years, courts across the nation have had to decide how to apply Campbell to other cases where transformative fair use was argued.
So on Wednesday, the Supreme Court was faced with this:
On the right is a photograph of Prince taken by Lynn Goldsmith in 1981.
On the left is a 2016 Vanity Fair cover, created by Andy Warhol in the 1980s, which uses the Goldsmith photo.
How Warhol used this image is up to your imagination and, now, to the Supreme Court.
The imagination of the lower court, in this case, was that Warhol had made transformative fair use of the Goldsmith photograph so there was no intellectual property violation.
The Second Circuit, in a panel decision, reversed, holding that Warhol’s use wasn’t transformative. The Court wrote that the Warhol Prince Series of photographs illegally used the Goldsmith photograph as a “recognizable foundation” of the work and imparted no new “message or meaning.”
But, logically, any fan of Warhol knows that anything he touched took on a new message and meaning.
Krenar Camili, a New Jersey lawyer, argues that:
The rationale for the Court’s decision here should lie in Campbell as well as Google Inc. v. Oracle Corp. Am., the fair use decision from last year’s Supreme Court term. What should make the Prince case a landmark case is the nature of artistic interpretation itself. Art initiates life but sometimes it also imitates art.”
Tim George, a Pennsylvania lawyer, agrees:
“Andy Warhol remains one of the most unique and uniquely American artists of the past hundred years. For him to take a photograph and re-create it in his own style is to transform the piece. This is what the transformative fair use doctrine is all about.”
I am a massive Prince fan and a very minor Prince historian. I’ve studied his career, know his entire discography, and used to see him regularly in concert. What this background allows me to share is something central to Prince’s own persona.
Prince was a person who liked to be seen as what he fundamentally was - a chameleon. Throughout his career, Prince moved as easily between musical genres as he did between personas. Prince adopted a different mental, emotional, and artistic space in moving between eras such as The Revolution, New Power Generation, Third Eye Blind, and the Artist Formerly Known As Prince, just to name a few.
Given who Prince was, that there is a landmark legal case today on transformative fair use seems fitting and another fine way to honor his legacy as one of the greatest transformative artists in music history.
Yet this seemed to be entirely lost on the Justices during oral argument on Wednesday.
While counsel for the Warhol Foundation justifiably argued that that if they lose this case it could chill the creation of new work, the Justices didn’t seem to be buying it.
This work was, counsel argued, “an examplar of the dehumanizing effects of fame and popular culture.” The piece the picture accompanied was on the theme of Prince’s Purple fame - that’s why Warhol created this piece, known as “Orange Prince” here.
Yet the Court seemed unconvinced that Warhol’s work met the “new and important” standard, which the Google case determined it needs to.
Another aspect of oral argument that worked against Warhol’s counsel is that the Court didn’t see how these two photographs and artists weren’t in direct competition. Justice Sotomayor said “they both sell photographs to magazines” which is true. But it’s also logic that could dramatically impact artists.
This is where the court will hang its hat. Both Warhol and Goldsmith were in the same business here - selling their art to magazines. This speaks to the issue of purpose. Essentially, counsel for Goldsmith argued that this is an unlicensed use and that while Warhol paid to use photographs in the past, his foundation just failed to do so here. And that’s how this will ultimately go.
About Aron Solomon
A Pulitzer Prize-nominated writer, Aron Solomon, JD, is the Chief Legal Analyst for Esquire Digital and 24-7 Abogados. He has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world. Aron has been featured in Forbes, CBS News, CNBC, USA Today, ESPN, TechCrunch, The Hill, BuzzFeed, Fortune, Venture Beat, The Independent, Fortune China, Yahoo!, ABA Journal, Law.com, The Boston Globe, NewsBreak, and many other leading publications.
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