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 isn’t how I normally spend my mornings. But the case they were hearing—a copyright infringement suit brought by the photographer Lynn Goldsmith against the Andy Warhol Foundation—was one I’ve 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 couldn’t 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 way—shady emissaries for agencies that use image-crawling bots to scour the internet for related images and then demand fees from artists “on behalf of” license holders whose copyright, they claim, has been “violated.” Fundamentally, copyright law was designed to foster creativity, and it does so by holding in tension a creator’s 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.
The Warhol v. Goldsmith suit stems from Warhol’s 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 Warhol’s use as an artist’s reference in an illustration he created for the magazine, which Vanity Fair published with a credit to Goldsmith. Using Goldsmith’s photo, Warhol also made fifteen additional portraits which were sold off to various collectors, without credit or payment to Goldsmith. It was only upon Prince’s death in 2016 that Goldsmith became aware of Warhol’s 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 Warhol’s 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 Warhol’s artwork made fair use of Goldsmith’s image because Warhol “transformed Prince from a vulnerable, uncomfortable person to an iconic, larger-than-life figure.” But when Goldsmith appealed this ruling to the Second Circuit, an appeals judge reversed the lower court’s ruling, blasting as fundamentally non-transformative the “Warholian” aesthetic of Warhol’s Prince Series because Warhol’s works still contained perceptible elements from Goldsmith’s photograph. The Second Circuit Court of Appeals’ decision—that Warhol’s use of Goldsmith’s photograph was both not transformative and that it infringed on her market because “the Warhol images are instantly recognizable as depictions of the Goldsmith Photograph itself”—relied overwhelmingly on how the work looked, not what it meant. It relied, in other words, on the formal and not conceptual qualities of Warhol’s work. This visual-only approach to art interpretation was almost immediately undermined by the Supreme Court itself—which, ten days after the Second Circuit’s judgment, in March 2021, released its own contradicting ruling in a different copyright case wherein the justices argued that, “an ‘artistic painting’ can be transformative even if it ‘precisely replicated’ another work—so long as it conveys a distinct message, such as ‘a comment about consumerism.’”
If the threads of these arguments, decisions, and reversals sound tangled, that’s because they are—and 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 Court’s ruling in that other case, which involved a dispute not between artists but big tech companies (Google and Oracle, respectively)—but whose verdict’s 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 Google’s Android operating system). The Warhol Foundation’s 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, Warhol’s lawyers counseled the justices that some artistic works “need to incorporate a ‘recognizable allusion to its object through distorted imitation’” for their critiques to function. Thus were seeded ideas that Justice Breyer integrated into his decision, which reasoned that the Google case’s 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 Foundation’s 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 or—or 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 can’t 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 team’s working models for artists were so limited—either “young,” 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 Warhol’s successor, either.
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 “borrowing” 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 “for purposes such as criticism, comment, news reporting, teaching, … scholarship, or research is not an infringement of copyright,” 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 “four factors” 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 aren’t 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 one’s rights to fair use in the first place. This fraught legal climate already has a very real “chilling effect” on artists who work with pre-existing materials; the Supreme Court’s decision in Warhol v. Goldsmith could influence this effect in profound ways.
Judges ruling on fair use cases can’t 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 “it would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations.” The issue, Holmes humbly reasoned, wasn’t merely that “some works of genius would be sure to miss appreciation”; it was that “[other works’] very novelty would make them repulsive until the public had learned the new language in which their author spoke.”
This remains true today. And this is why “gut checks” 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 “meaning” or “message” 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 Crew’s reworking of Roy Orbison’s “Oh, Pretty Woman” didn’t violate copyright because 2 Live Crew’s parody version of the song expressed a new “meaning … or message” from the original.
And that idea, that the meaning of an artwork matters, is what Warhol’s legal team argued before SCOTUS. But listening to the oral arguments, with the respective issues raised by Warhol’s lawyer, then Goldsmith’s, 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. Warhol’s stake was in whether his work communicating something different than Goldsmith’s mattered in the law; Goldsmith’s 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 anyone’s guess.
But one thing these intertwined lines of inquiry and conflicting outcomes illustrate is how, whether you agree that Warhol’s Prince Series is part of his lifelong conceptual art practice—a practice that engaged with the popular culture/fame/photography feedback loop, and which thus produced portraits of Prince that differed from Goldsmith’s by definition—all art is connected to visual culture and society through roots that run much deeper than academic arguments. Otherwise it wouldn’t 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 “content” can mean in its guileless before and recycled after—whether that content is a line of code, a pop song, or a photo of a celebrity. The Warhol v. Goldsmith case matters because a “visual-only” assessment of “transformativeness” both ignores how we communicate today and makes policing that communication an increasingly dubious effort—a 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 “ambiguous.” 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. Warhol’s work mapped these interconnections, anticipating the self-cannibalizing popular culture we have inherited today. But it’s not him who will experience the consequences of the court’s decision. It's the rest of us. ♦
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