Who Owns Culture?
Last fall, on the morning of October 12th, I woke before my alarm and tuned in to a livestream broadcast of oral arguments before the U.S. Supreme Court. This isnât how I normally spend my mornings. But the case they were hearingâa copyright infringement suit brought by the photographer Lynn Goldsmith against the Andy Warhol Foundationâwas one Iâve been following for some time, both because it has personal implications for my work as an artist and because it has the potential to shift the landscape of visual culture in broader ways. Whether we have traded screenshots with friends, retweeted memes, appreciated an apt sample in a song, read fan fiction, or danced for TikTok, we have engaged in the widespread implicit renegotiation of our communal relationship to cultural materials which is at issue in the case of the Andy Warhol Foundation v. Lynn Goldsmith. As I made my coffee, I found myself wincing at some of the back-and-forth between the lawyers and the Justices, and then talking back to the broadcast coming through the shrill speaker of my phone. I had been worrying about this day for months, and about this particular case for years, tracking developments closely as it ricocheted through the lower courts on its journey to SCOTUS.
As an artist who sometimes uses appropriation in my own work, repurposing elements from visual culture to comment on that culture itself, I couldnât help but follow the case because my own experiences with fair use have made me vigilant about the way the Warhol v. Goldsmith verdict could rattle its way through my own practice, jimmying bolts from the foundation of my work with found photography and language and shaking loose copyright trolls along the wayâshady emissaries for agencies that use image-crawling bots to scour the internet for related images and then demand fees from artists âon behalf ofâ license holders whose copyright, they claim, has been âviolated.â Fundamentally, copyright law was designed to foster creativity, and it does so by holding in tension a creatorâs right to profit from her work and the principle that some uses of pre-existing content must be permitted, to keep the law from effectively censoring creative work rather than protecting it. Because of my experiences navigating the unstable terrain of fair use in my own practice, I became fixated on how a Supreme Court ruling in the high-profile fair use case of a long dead, very rich artist would have lower-profile but nonetheless high-stakes implications for non-dead, non-rich artists like me. For this reason, I, along with several other working artists, filed an amicus brief with the Supreme Court over the summer. As I stood frozen in the morning light of my kitchen, clutching a cup of now cold coffee, I was listening closely, and holding my breath.
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The Warhol v. Goldsmith suit stems from Warholâs use of a photograph of the musician Prince taken by Goldsmith in 1981. Three years later, in 1984, the photo was licensed by Vanity Fair for Warholâs use as an artistâs reference in an illustration he created for the magazine, which Vanity Fair published with a credit to Goldsmith. Using Goldsmithâs photo, Warhol also made fifteen additional portraits which were sold off to various collectors, without credit or payment to Goldsmith. It was only upon Princeâs death in 2016 that Goldsmith became aware of Warholâs Prince Series; she contacted the Warhol Foundation about the unlicensed uses of her photograph. In response, the Warhol Foundation, which is based in New York, asked the U.S. District Court for the Southern District of New York for a summary judgment asserting that Warholâs work was permissible, because it transformed original sources in ways that were within his rights under the Fair Use Doctrine of the 1976 American Copyright Act.
The case has bounced through the legal system ever since. In 2019, Judge John G. Koeltl of the district court ruled that Warholâs artwork made fair use of Goldsmithâs image because Warhol âtransformed Prince from a vulnerable, uncomfortable person to an iconic, larger-than-life figure.â But when Goldsmith appealed this ruling to the Second Circuit, an appeals judge reversed the lower courtâs ruling, blasting as fundamentally non-transformative the âWarholianâ aesthetic of Warholâs Prince Series because Warholâs works still contained perceptible elements from Goldsmithâs photograph. The Second Circuit Court of Appealsâ decisionâthat Warholâs use of Goldsmithâs photograph was both not transformative and that it infringed on her market because âthe Warhol images are instantly recognizable as depictions of the Goldsmith Photograph itselfâârelied overwhelmingly on how the work looked, not what it meant. It relied, in other words, on the formal and not conceptual qualities of Warholâs work. This visual-only approach to art interpretation was almost immediately undermined by the Supreme Court itselfâwhich, ten days after the Second Circuitâs judgment, in March 2021, released its own contradicting ruling in a different copyright case wherein the justices argued that, âan âartistic paintingâ can be transformative even if it âprecisely replicatedâ another workâso long as it conveys a distinct message, such as âa comment about consumerism.ââ
If the threads of these arguments, decisions, and reversals sound tangled, thatâs because they areâand they get even more tangled the farther you follow them. As a non-lawyer, I was struck by the distinctly Warholian argument in the Supreme Courtâs ruling in that other case, which involved a dispute not between artists but big tech companies (Google and Oracle, respectively)âbut whose verdictâs logic was in fact partly supplied to the Court, as I later came to understand, by lawyers for the Warhol Foundation. The Google v. Oracle case had to do with fair use (and with lines of source code owned by Oracle that were exactly replicated in Googleâs Android operating system). The Warhol Foundationâs lawyers, recognizing the potential import of a ruling on this matter, collaborated with the Robert Rauschenberg Foundation to file an amicus brief with the Court. In that brief, Warholâs lawyers counseled the justices that some artistic works âneed to incorporate a ârecognizable allusion to its object through distorted imitationââ for their critiques to function. Thus were seeded ideas that Justice Breyer integrated into his decision, which reasoned that the Google caseâs outcome might have cascading effects in the art world.
Listening to the oral arguments in Warhol v. Goldsmith, that sunny morning in my kitchen, I was reminded that this is how amicus briefs are supposed to work. They filter viewpoints from the outside world into the courtroom, ideally leading to more practical, more pragmatic decisions that take into account how the issues laid out by the petitioner and the respondent affect those not directly involved in the case. I listened as the Warhol Foundationâs lawyer explained:
This case isn't just about Warhol. It's about the young and up-and-coming artists who want to be Warhol's successors. You know, the artists' amicus brief, I think, says that the average, you know, salary orâor earnings for a young artist is less than $50,000 a year. Think about what it would be like for that artist who wants to create new and innovative work that integrates preexisting images.
I recognized the statistic; the amount comes from a study by the Bureau of Labor and Statistics and is actually $49,960. I know because I am the one who said we should include such government statistics in the brief, to make the point that most working artists canât afford to fight pyrrhic legal battles defending our valid claims of fair use. Which is true. But I shouted at my phone when I heard the lawyer say it, because $49,960 is the average income of an artist in America at this time, not a young artist, and that elision infuriated me in general and worried me, especially, here. If even the Warhol teamâs working models for artists were so limitedâeither âyoung,â like the eager striver the lawyer invoked, or a household name, like Warhol himself, what good would the amicus brief do at all? The repercussions of this case are bigger than that. I am not young, and I never wanted to be Warholâs successor, either.
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As visual artists and musicians and video game designers and podcasters and collagists and documentary filmmakers can all attest, the question of what kinds of âborrowingâ of cultural artifacts will be judged fair use has long been tricky to predict. While section 107 of the Copyright Act of 1976 declared that using copyrighted work âfor purposes such as criticism, comment, news reporting, teaching, ⊠scholarship, or research is not an infringement of copyright,â confusion over how to balance the social value of these uses against the interests of copyright holders has remained. To help judges decide, section 107 enumerated âfour factorsâ they must consider before making a ruling, namely:
1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes; 2. The nature of the copyrighted work; 3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4. The effect of the use upon the potential market for, or value of, the copyrighted work.
But even with these discrete criteria, the appraisal of fair use has been fickle and vexed, and this volatility has real-world implications for artists, and indeed for anyone who uses elements of contemporary culture, in public, to try and explain or comment on the world today. Appropriations, in art as elsewhere, rely on recognition to do this; the artist presents something potentially familiar to the rest of us, inside her own work, to connect her working model of the world to our own. The murky and disputed nature of fair use rulings makes contemporary artists already vulnerable to censorship (both self- and externally-imposed), and to harassment from copyright trolls even when they arenât violating any law and their use of copyrighted material is fair. The practical takeaway from the contradictory body of rulings on fair use is that it is easier, and seemingly safer, not to risk exercising oneâs rights to fair use in the first place. This fraught legal climate already has a very real âchilling effectâ on artists who work with pre-existing materials; the Supreme Courtâs decision in Warhol v. Goldsmith could influence this effect in profound ways.
Judges ruling on fair use cases canât all be fluent in art history or theory and, while Warhol may have engineered this particular conceptual challenge, it is one that has long worried judges. In a 1903 ruling concerning copyright, Justice Oliver Wendell Holmes famously noted that âit would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations.â The issue, Holmes humbly reasoned, wasnât merely that âsome works of genius would be sure to miss appreciationâ; it was that â[other worksâ] very novelty would make them repulsive until the public had learned the new language in which their author spoke.â
This remains true today. And this is why âgut checksâ in the form of personal visual analysis, like that of the Second Circuit Court of Appeals, can seem as pragmatic a way as any for non-art experts to determine their rulings. But making sense of contemporary, conceptually-driven art based on only what your eyes register is like assessing an iceberg from the air. The legal reversals in the Warhol v. Goldsmith case therefore force the Supreme Court to rule on whether the âmeaningâ or âmessageâ of an artwork is part of the work, an assessment they already made back in 1994 in the context of pop music: In a well-known case, the court affirmed that 2 Live Crewâs reworking of Roy Orbisonâs âOh, Pretty Womanâ didnât violate copyright because 2 Live Crewâs parody version of the song expressed a new âmeaning ⊠or messageâ from the original.
And that idea, that the meaning of an artwork matters, is what Warholâs legal team argued before SCOTUS. But listening to the oral arguments, with the respective issues raised by Warholâs lawyer, then Goldsmithâs, and then the Assistant to the Solicitor General of the Department of Justice, it was as if there were three completely different cases being heard. Warholâs stake was in whether his work communicating something different than Goldsmithâs mattered in the law; Goldsmithâs lawyer narrowly argued about commercial licensing of images, and whether the Warhol Foundation could continue licensing reproductions of the Prince Series; while the DOJ pointed to all the ways a broad fair use ruling in favor of Warhol would undermine Hollywood and the publishing industry. The threads were tangled indeed. And which of those three lines through the case the justices will choose to follow, before they issue a ruling this spring, is anyoneâs guess.
But one thing these intertwined lines of inquiry and conflicting outcomes illustrate is how, whether you agree that Warholâs Prince Series is part of his lifelong conceptual art practiceâa practice that engaged with the popular culture/fame/photography feedback loop, and which thus produced portraits of Prince that differed from Goldsmithâs by definitionâall art is connected to visual culture and society through roots that run much deeper than academic arguments. Otherwise it wouldnât matter at all. Every day, we are rewriting our societal mores when it comes to how we repurpose popular content to express ourselves. We recognize the communicative power to be drawn from the difference between what âcontentâ can mean in its guileless before and recycled afterâwhether that content is a line of code, a pop song, or a photo of a celebrity. The Warhol v. Goldsmith case matters because a âvisual-onlyâ assessment of âtransformativenessâ both ignores how we communicate today and makes policing that communication an increasingly dubious effortâa fate that Supreme Court Justices warned about as early as 1975, when they noted that technology was changing and making the application of copyright law âambiguous.â In the Warhol v. Goldsmith decision that will come down this year, either SCOTUS will recognize that the hyper-connectedness of our visual culture today makes the context, meaning, and message of a work matter more than ever before, or its justices will reinvest in a restricted model of aesthetic value that visual culture has already made obsolete. Warholâs work mapped these interconnections, anticipating the self-cannibalizing popular culture we have inherited today. But itâs not him who will experience the consequences of the courtâs decision. It's the rest of us. âŠ
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