The Patron Saint of Superheroes

Beginning October 12th, the Supreme Court will hear arguments for Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.

The case is convoluted but in short: Lynne Goldsmith photographed Prince, and Warhol used her photograph to make his own artwork. (I blogged a lot about this in spring 2021.)

Did Warhol infringe on Goldsmith’s copyright?

When a first court said no, Goldsmith appealed.

When the next court said yes, Warhol appealed.

Now the Supreme Court will give a definitive ruling.

According to SCOTUSblog.com, the issue is:

“Whether a work of art is “transformative” when it conveys a different meaning or message from its source material (as the Supreme Court, U.S. Court of Appeals for the 9th Circuit, and other courts of appeals have held), or whether a court is forbidden from considering the meaning of the accused work where it “recognizably deriv[es] from” its source material (as the U.S. Court of Appeals for the 2nd Circuit has held).”

More generally, SCOTUS will clarify the parameters of fair use in art.

Or at least that’s the hope. Agreeing with the historically low opinion the U.S. population has of the McConnell-packed Supreme Court’s recent behavior, my hopes are low. (The Court’s majority somehow did not notice that the Constitution does not acknowledge let alone confer rights to so-called unborn people [the 14th Amendment applies to “persons born”], and yet it ruled that such constitutionally non-existent people’s rights trump the rights of actual people who are pregnant.)

The above issue summary implies that if the Court decides that transformative meaning can’t be considered for recognizably derivative images, Goldsmith wins; and conversely, if the Court decides that transformative meaning can (and presumably therefore must) be considered, Warhol wins.

That, unfortunately, ignores a third possibility: transformative meaning must be considered, and Goldsmith wins because Warhol’s work fails the transformative test.

It ignores (or at least obscures) a forth possibility too: Warhol wins by passing the transformative test.

It’s the test that’s desperately needed. Without it, the parameters for copyright infringement will remain ambiguous, and threats of lawsuits will continue to control artistic behavior. In short, artists need to know what is and what is not adequately transformative when developing artwork from a source image.

The history of similar legal cases (and non-cases) adds to the confusion.

Warhol’s Warhol-defining Marilyn artworks are recognizably derived from a photograph taken by Eugene Korman to publicize the 1953 film Niagara. Korman was employed by 20th Century Fox, but neither ever sued Warhol for copyright infringement, suggesting that Warhol’s art was meaningfully transformative.

Similarly, in the 2014 KIENITZ V. SCONNIE NATION AND UNDERGROUND PRINTING, circuit judges ruled that a recognizably derivative image fell under fair use because:

“Defendants removed so much of the original that … only the smile remains. Defendants started with a low resolution version posted on the City’s website, so much of the original’s detail never had a chance to reach the copy; the original’s background is gone; its colors and shading are gone; the expression in Soglin’s eyes can no longer be read; after the posterization (and reproduction by silk-screening), the effect of the lighting in the original is almost extinguished. What is left, besides a hint of Soglin’s smile, is the outline of his face, which can’t be copyrighted.”

That argument strikes me as unfortunate nonsense, since I suspect most viewers would categorize the second image as recognizably derived from the first, and its consists of more than just an outline of a head and a hint of a mouth. It captures the subject’s likeness. SCOTUS ruled in 1997 that infringement occurs if the copied portion is “the heart of the work,” and they ruled again last year that: “even a small amount of copying may fall outside of the scope of fair use where the excerpt copied consists of the ‘heart’ of the original work’s creative expression.” Since the face in the poster is recognizably derived from the face in the photograph, does that mean the poster copied the “heart” of the original? I suspect yes. And yet I would also think the poster fell under fair use (though mainly for other aspects of the 4-part doctrine, since the poster was used to parody a government official).

The degree of transformation is the unaddressed problem.

For his Obama political poster HOPE, Shepard Fairey used a photograph taken by Mannie Garcia while covering a press conference for the Associated Press. The Associated Press sued, and Fairey eventually settled out court, agreeing to pay the AP $1.6 million.

Fairey’s image retains more detail from its source than does the non-infringing Kientz example, but not much more. Where is the line for infringement? Not knowing means copyright-holders can easily intimidate artists with just the threat of lawsuits.

For the tribute album Kind of Bloop, Andy Baio used a pixilated version of the photograph of Miles Davis taken by Jay Maisel that appeared on the cover of the 1959 Miles Davis album Kind of Blue.

Baio thought he was safe because the pixilated version reproduced the source image “at a dramatically reduced resolution that incorporates few of the photograph’s protectable elements.” That seems to align with the Kientz ruling. But litigation is expensive even when a defendant wins, and the risks of losing can be financially catastrophic. So Baio settled out of court.

I’m not aware of similar court cases involving comic books, and yet the history of “swipes” runs from the medium’s beginning:

And continues into its present:

Which only intensifies the need for SCOTUS to create a test for legally minimal transformativeness.

The image on the right is derived from the Picasso painting on the left. Because it is not “recognizably” so, I assume I have not infringed on any copyright:

But in the second pair, the image on the right is an early stage in my transformation process.

Does it infringe? I have no idea. But if SCOTUS does its job right, I will after their Warhol v. Goldsmith ruling.

My Picasso example is moot, but others aren’t.

In 2014, the Associated Press threatened to sue George Zimmerman over a painting recognizably derived from a photograph of prosecutor Angela Corey taken by Rick Wilson:

To be clear, this is the same George Zimmerman who (in my opinion) got away with (third-degree) murder when he was acquitted after fatally shooting Trayvon Martin in 2013. I don’t really care if AP sues him or not. But I do care about the broader legal implications.

“If you put George Zimmerman’s picture inside Rick Wilson’s, there’s no question it’s the exact same photo,” the AP attorney claimed. “It’s just that he’s put some red screen on it, and you can’t do that. The U.S. Supreme Court has come and said that you can’t do it, and he’s going to have a hard time fighting it.”

Although it seems true that “Zimmerman clearly directly copied an AP photo to create his painting,” as the AP alleges, he did not just “put some red screen on” the photo, and it is not “the exact same photo” because it is not a photo at all.

Also, no, the U.S. Supreme Court has not come and said that you can’t do it — or that you can either.

That’s what we’re waiting for.

My best guess: SCOTUS sides with Warhol, but fails to explain in a manner that will clarify infringement for potential future cases. Alternatively, the Court sides with Goldsmith and still fails to explain in a manner that will clarify infringement for potential future cases. Either way, I predict they dodge the needed work of determining a standard for meaningful transformation.

But on a more hopeful note, at least Justice Jackson will be part of the process.

[And if you’re curious how that process went during the oral arguments, continue here.]