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COPYING RIGHTS: Warhol v. Goldsmith

"When you come to a fork in the road, take it. -- Yogi Berra

May 18 - Reading through today's news about the Supreme Court ruling on Andy Warhol v. Lynn Goldsmith is both dramatic (as in theatrically) and a big old dose of Wait... What?

News readings will generally not suffice to explain what happened, because the accounts mostly mirror the confusion of the high court's effect.

The effect: the Supreme Court may have made the right decision for the wrong reasons; but it may have not made the right decision, either.

Truth & consequences

To be more clear than what has been published so far, slow your role as a reader, and note this: the 7-2 vote in favor of Goldsmith's claim of copyright infringement reveals that Vanity Fair did not appropriately compensate Goldsmith for using Warhol's imagery based on Goldsmith's work, in a purpose apparently indistinguishable from what Goldsmith's own purpose would have been in using Goldsmith's imagery based on Goldsmith's work.

Right away we have to ask, why didn't Vanity Fair compensate Goldsmith appropriately?

The first of three "correct" answers is that the Warhol Foundation provided the Warhol work to Vanity Fair without a licensing agreement that would have included Goldsmith as a beneficiary. On the surface, this might seem like either an oversight or a theft, but both of those ideas miss the real point. The real point is that if the work provided by the Warhol Foundation did not get used by the recipient (Vanity Fair) to make money, then the copyright infringement case likely would never have occurred. It's important to say this out loud, because it is the closest thing to a rational underpinning of the Court's decision to take its majority stand based on "purpose".

The purpose in question was to make money commercially. And while that particular purpose was not disputing that the Warhol work was objectively derivative of Goldsmith's, it stood on pretty firm ground that there was a commercial right abused. The right was to have the first chance to offer a solicited property for gain. In the case at hand, the presumption of this right is unambiguously granted to Goldsmith unless there are criteria that qualified the property in demand as not being Goldsmith's. The Warhol Foundation "copied" (mimicked) Goldsmith's right to make the first offer.

The second correct answer, then, is that Vanity Fair was not legally compelled to compensate Goldsmith. This is because Goldsmith was not the provider, and because Vanity Fair's qualifications for its own purpose were not met by Goldsmith's product. Vanity Fair specifically wanted a product that had the "character" found in the Warhol work -- elements that artistically commented through a "flat, impersonal, disembodied, mask-like" portrayal of the subject, on iconic mythology, and on the culture's appetite for it.

And the third correct answer is that at the very least, any party using Warhol's work commercially has always known that it is a calculated legal risk. Both the Warhol Foundation and Vanity Fair knew it and had already factored that into their respective business models. So, whether right or wrong, that is in fact why they didn't compensate Goldsmith in the transaction: they didn't need to, even if they should have. They decided to take the risk.

Understanding the above means that we can focus on the events more clearly. The Supreme Court ruled on the basis of business ethics, not on the basis of artistic authorship. It did not need to base its decision on whether the Warhol work was sufficiently transformative of the Goldsmith work to qualify as having "a new meaning".

Meaning what?

The test here -- the Supreme Court's own test -- says that to be transformative the work must "add something new, with a further purpose or different character, altering the first with new expression, meaning or message.”

Yet at the very same time, Justice Sotomayor exclaimed that "such perceptions are inherently subjective".

Let's take a beat here to realize that if this is the case, it does not mean that party X's subjectivity overrules party Y's subjectivity. That is, the Court itself (party X) was not in a position to decide whether the Warhol work was transformative any moreso than was the "client" of the transaction, Vanity Fair.

That spectacular self-contradiction is our cue that the 7-2 decision is probably not a landmark decision nor one that is a tectonic shift. The Court did not rule on whether Warhol's work was "transformative". It actually ruled only on the business ethics of a given circumstance, and on the implications of allowing that to be a tolerated precedent in the market. It only thought that it based its ruling on transformation criteria. Well, what do they call these high court rulings? Opinions.

Appearance versus Reality

But is Warhol's work transformative or not? Subjectivity notwithstanding, we might argue that there are certainly large populations that are insensitive, and therefore indifferent, to the alterations that Warhol performed on the Goldsmith-created image. As a philosophical reflection, we won't get confused by saying that if a measurable difference of characteristics has no impact of significance experiencing the one work versus the other, then who cares? Transformed is not an applicable term for something that has no effective difference from its predecessor.

But yes, we still want to understand when it does apply, and there are only two ways to get there. One is by market research. The other is to switch to the producer side of the matter and compare the intention of the makers when it comes to meanings.

It is pretty safe to say, in pseudo-legalese, that Lynn Goldsmith's intention that formed the Goldsmith photograph used by Warhol was not the intention Warhol had that formed the artwork made by Warhol using Goldsmith's photograph.

In a hypothetical examination looking to verify that, we would naturally separate the protagonists from each other, take direct independent statements from each of them, and compare the statements. This is a completely different perspective than one that is primarily concerned with what the market may or may not decide to use. The market does not define the product; the market defines acceptance.

If the key issue is whether the product is a "copy" or not, the test is for a validated difference in meaning that is explicitly attributable to the intentional influence on form exerted by the maker. Normally, this is just the sort of thing that we expect art critics to do for us, whether the artist is agreeable to it or not.

But as Adam Liptak reported in the New York Times (May 18, 2023):

"The majority does not see it,' Justice Kagan wrote. 'And I mean that literally. There is precious little evidence in today’s opinion that the majority has actually looked at these images, much less that it has engaged with expert views of their aesthetics and meaning.' "

The Supreme Court usually has the option to refuse to take a case.

In this round, it refused to actually debate the issue of whether Warhol's work was transformative. Had it really debated, there would be evidence in the opinions. What we saw, instead, is that the Court, knowing it did not need to actually settle the transformation issue, let non-critical observers think that it did (one prong of the fork) while actually ruling on the commercial issue (the other prong) as if the transformation issue was not contested. It took the calculated risk and did what it wanted to do.

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