"Chief Justice John Roberts name-dropped the artists Piet Mondrian and Josef Albers. But the contrast between the case, in which Warhol is accused of changing too little of Goldsmith’s [photograph of Prince], and the Court itself, which is lately accused of changing far too much, created a tense sort of levity.... The Warhol Foundation wants the Court to stick closely to those words. It asserts that Goldsmith’s naturalistic black-and-white photo depicts Prince as 'fragile and vulnerable,' and seeks to 'humanize' him. By contrast, the Foundation argues, Warhol’s silkscreen process created 'a flat, impersonal, disembodied, mask-like appearance' that comments on the dehumanizing nature of celebrity. In other words, Goldsmith depicts Prince intimately but Warhol conveys an image of an icon.... The legal narrative... is an unwitting commentary on what happens when courts decide what things mean: a flattening of human reality and experience.... Alito mused that 'maybe it’s not so simple' to determine the meaning of a work—months after eliminating abortion rights.... The question hanging over this term is how the Court, which wants to appear as unoriginal as possible, will be affected by enacting so many transformations."
From "The Supreme Court’s Self-Conscious Take on Andy Warhol/In a copyright case, the Justices revealed their own anxieties about interpreting precedents" by Jeannie Suk Gersen (The New Yorker).
Justice Thomas wasn't randomly showing off his pop culture savvy. He had a good question.
From the transcript:
Posts
44 comments:
So?
was the "warhall foundation" NOT planning on making a profit from their copying of the original?
The "contrast to the Court itself" is a really tortured analogy.
"The "contrast to the Court itself" is a really tortured analogy."
Warhol flattens the reality of Goldsmith's photo and the Court flattens the reality of real life.
I presume the author and her editors believed this was brilliant.
The two pictures, other than being of the same person, are pretty different. The basic work was done by the camera, by chemicals and light (and God), and there should be very limited rights to that. The rights, if any, should accrue to what the artist does with the picture beyond the basic representational recording of the image. That is, the fact that Prince is the subject of both pictures should be of no concern to the court.
And given that, removing the coincidence of the subject, the two pictures are quite different, I see no justification for finding for the Warhol Foundation. It doesn't own photography, even photography of famous people.
Abortion rites have not been eliminated. Women and girls can still elect to abort a baby conceived with her consensus (i.e. first choice). Planned Parenthood et al can still cannibalize and redistribute a viable human life for medical progress and profit. As slavery and diversity [dogma] rights before, human rites have undergone social progress with democratic consensus.
Alito didn’t eliminate abortion rights. He just sent the issue to the legislature; either state or federal.
Just stop lying. We’re own to your lies.
I suspect tim maquire will call me a troll with a 3rd grade education. but when he said..
I see no justification for finding for the Warhol Foundation. It doesn't own photography, even photography of famous people.
i kinda wonder how much he read of this assignment?
1: It's a great question
2: The lawyer was NOT read for that question.
Which is appallingly incompetent. How could they never think "someone's going to give us a 'transformation of use' hypothetical"?
Maybe the transcript is wrong, and the lawyer wasn't really stammering like that. But I associate that kind of stammer with "oh God, I never thought of that, and it kills us" rather than "damn, I was afraid someone would ask that."
Ann Althouse said...
Warhol flattens the reality of Goldsmith's photo and the Court flattens the reality of real life.
I presume the author and her editors believed this was brilliant.
I believe the author and her editors are midwits, so I believe you're right that they think it's "brilliant".
In reality it's pathetically stupid. But that's not obvious when you're a midwit
n.n said...
Abortion rites have not been eliminated.
so, you're saying that the Warhall foundation should do some portraits based on baby fetuses?
I supposed those might be interesting
tim maguire said...
The two pictures, other than being of the same person, are pretty different. The basic work was done by the camera, by chemicals and light (and God), and there should be very limited rights to that. The rights, if any, should accrue to what the artist does with the picture beyond the basic representational recording of the image. That is, the fact that Prince is the subject of both pictures should be of no concern to the court.
And given that, removing the coincidence of the subject, the two pictures are quite different, I see no justification for finding for the Warhol Foundation. It doesn't own photography, even photography of famous people.
Tim, you have that entirely reversed. The Warhol Foundation is saying that Andy was entirely free to take Goldsmith’s photograph of Prince, use it to make a painting, and then make money off that painting not giving anything to the person who took the photo that was the basis of the painting.
So your 1st paragraph says the Warhol Foundation should win, not lose
Personally, I think Warhol should lose. His work completely relies on the previous copyrighted work. He's not making a parody of the previous work, he's not doing a commentary on the previous work, he's just using it as a source for him to make money off of..
I think Justice Thomas's question goes straight to the point of why the Warhol Foundation is wrong. If someone writes a book, and you make a movie based on that book, you have to pay the author for the rights to do so.
This is no different
Doesn't the Warhol argument for the sufficiently transformative nature of his own input into the derivative work actually stand in contrast to the Supreme Court withdrawing its own historic influence over public policy in Dobbs?
It is a universal law that when there is money to be made, BS will accrue. I could not detect in that exchange any stable analytical principles at work, other than "same shoe, different foot". Thomas' question neatly forced counsel for the Warhol Foundation to address the sword/shield distinction. Warhol Foundation wants to dodge liability for infringement by claiming even minor changes should shield it. But when the Foundation wants to use its intellectual property rights against infringers (a sword), in this case against Thomas' "Go Orange" poster, counsel will not promise to recognize any shield, and just dances around.
Thomas impresses: exposing both the hypocrisy and the poor preparation of counsel for the argument.
Since Scalia died, this has been a Thomas court. Roberts is a stooge.
I guess the arguing attorney doesn't know that Norman Lear is still alive and therefore, can't turn over in his grave at this time.
"I presume the author and her editors believed this was brilliant."
It would have been worth a B in a sophomore essay at the University of Oregon in the 1970's. She must have been taking lessons from Maureen Dowd - "compare and contrast".
The rule cannot be that "I am special and anything I touch is therefore transformed." He had his schtick. If (when) he's too lazy to create an original then he should pay the copyright holder.
Slightly OT: Has anyone listened to the Malcolm Gladwell podcast about how museums hoard artifacts and specifically how the the Warhol museum does? Good stuff about the strange hoarder whose junk is now hoarded by other hoarders.
So it appears, right or wrong, that POTUS will likely permit Andy Warhol’s work that conveys a meaning or message different from Lynn Goldsmith’s photo, by flattening dimension, shading, and nuance on what happens when a human being’s personality is flattened for consumption in popular culture.
I suppose that this is consistent with the U. S. Supreme Court’s 1964 opinion in Times v. Sullivan that values free speech over truth in political ads.
From The Bulwark: Attack Ads Are Darkening the Skin Tone of Black Candidates
While those responsible claim innocent technical problems, the larger pattern is consistent. So is the effect: heightened white racial anxieties.
It’s working. Once ahead in the polls, Democrat Mandela Barnes, the lieutenant governor of Wisconsin, is now trailing Republican incumbent Ron Johnson in the state’s race for U.S. Senate . . . . One factor is an onslaught of negative messaging that seeks to paint Barnes as a crime-loving radical. A key word here is “paint.”
Neither Barnes nor his campaign has publicly commented on the mailer with the altered image, and they declined [an] invitation to do so. That’s how intent they are on playing “the race card” for their own wicked political ends.
Similar issue, interesting description of it Instagram, an artist and the $100,000 selfies
"Alito mused that 'maybe it’s not so simple' to determine the meaning of a work—months after eliminating abortion rights...."
I would have stopped reading right there, because Suk Gerson is making a ridiculous and content-free comparison. This is a polemic, and she isn't very good at polemics. Abortion rights were not eliminated. Don't believe it? Come to Illinois.
I am not sure who should win or lose - Warhol clearly used the photograph as the basis, hence it is a "derivative work" of the photograph. But the parts that he did use - the way Prince's face looked in the photograph - were not the creation of the photographer. The photographic elements that were the creation of the photographer in this case seem to be the angle, the color and shading choices involved with the development of the film, maybe the choice of clothing (not sure who dressed him for the shoot) - of these three things, only the angle of the shot was used by Warhol.
Also, the case involves a series of Warhol silkscreens, which abstract the face in a variety of ways and to a variety of degrees, ranging from simple outlines to colorized versions, none of which approximate the coloration of the photograph.
In other words, I question what scope of protection should be afforded a photograph where the subject matter of the photograph was not put together by the photographer. I think that is a much more interesting question than that of whether further use is "transformative," and likely one that would be much easier to legally define.
I don't understand why its funny to be a fan of a musician who can do this:
wait for it
https://www.youtube.com/watch?v=6SFNW5F8K9Y
"Alito didn’t eliminate abortion rights. He just sent the issue to the legislature; either state or federal. Just stop lying."
The constitutional *right* was in fact eliminated. It is however possible for legislatures to create a right via statute — a statutory right.
The Court did not recognize a new right, a right to life in the unborn. If that had happened then it wouldn't be possible to use statutory law to get a different result.
I think it's quite nice that even though they wildly disagree with one another the justices do seem to get along in a rather collegial way. It's almost as though they are adults. Imagine that!
It sounds as though Mr. Martinez, on behalf of the Warhol Foundation, is reserving the right to give Warhol's copyright holders a veto power over other artists' doing to Warhol what Warhol did to other artists.
"Transformative meaning" and "substantially creative," in this use, are smokescreens. In effect, the artist in whom they have a financial stake is to be treated as divinely anointed; other artists are not allowed to do what he did (unless the Foundation gets a cut: then they too will have the divine afflatus).
Warhol, a fine craftsman in his own right, made his fame and fortune by appropriating the images of other artists. It's not the art but the fame and fortune that the Foundation is interested in: We've got ours, pull the ladder up.
Greg the ClassTraitor writes, "This is no different."
And he is entirely correct. The Warhol Foundation has deservedly lost this one. Pay the man, already. Andy Warhol was an avaricious little cuss who skirted copyrights and trademarks for a living. The unspoken deal was don't sue me and I'll make your stodgy old brand cool, such that hipster poseurs will buy your stuff just to glom onto the Warhol factor.
Well, the deal is threadbare, old, and busted, but Warhol's foundation wants to keep its endowment well into the nine-figure range in order to fund those obscenely high staff salaries.
PS
Are we back on the abortion thing here, or did n.n. misplace his comment?
"The constitutional *right* was in fact eliminated."
You are right, but Suk Gersen says that abortion rights were eliminated without the qualifier "constitutional", which is why I think this is a strained polemic. What does a dispute over use of an image have to do with questions of personal autonomy and life and death? What does it have to do with whether the Supreme Court in 1974 went way beyond its remit in exercising "raw judicial power" (as Justice White put it)?
This article approaches bathos.
Mandela Barnes is the Lieutenant Governor of Wisconsin and has been in that office for two years. All things considered, it can hardly be a surprise to Wisconsin voters that Mandela Barnes is a black guy. Barnes has to live with his own campaign, which appears to be sinking, but maybe he'll pull it out. Who knew that he was a law-and-order guy?
The Bulwark is run by grifters that soak liberals who want to think the Bulwarkers are "good" Republicans, who will accept losing as their just role in life. It is the Lincoln Project model. I hope you sent them a big check, Gadfly.
Greg The Class Traitor said...Tim, you have that entirely reversed...So your 1st paragraph says the Warhol Foundation should win, not lose
I was wrong about who was the plaintiff and who was the defendant. That's a minor concern. My point stands--there should be little or no protection for the elements of the photos that are the same.
"Alito mused that 'maybe it’s not so simple' to determine the meaning of a work—months after eliminating abortion rights...."
I guess I'm straying off topic, but the main point I got out of the article is that after 6 years of making everything and anything about Trump, we are entering a world where everything and anything (whether a local school board meeting or 2024 election) will be about abortion. Including a case involving copyright law.
"The constitutional *right* was in fact eliminated. "
The constitutional "right" in fact, never existed. There has never been an inalienable right to kill your offspring other than one manufactured by the statutory usurpation performed by the USSC in 1973. All the Dobbs decision did was remove that veneer of "right" and allow the States to create that statutory right.
I love Clarence Thomas so much.
If the court rules against the Warhol group they can get Beiden to issue an executive order saying that by prosecutorial discretion, prosecuting artists for copying other peoples work is a "low priority." Or that civil suits in artistic intellectual property areas must go through a 20 year counseling process before they can be heard, to encourage efficiency.
It might get Hunter a seat on the board.
If the next president tries to cancel the executive order the DC Federal Courts will find that the new president can't, for various reasons of administration, cancel the order.
It’s working. Once ahead in the polls, Democrat Mandela Barnes, the lieutenant governor of Wisconsin, is now trailing Republican incumbent Ron Johnson in the state’s race for U.S. Senate . . . . One factor is an onslaught of negative messaging that seeks to paint Barnes as a crime-loving radical. A key word here is “paint.”
gadfly loves crime-loving radicals. You must not live in a dangerous neighborhood.
Isn’t Warhol’s work “ transformational” use?
I wrote "draftsman" not "craftsman" -- damn transformative autocorrect.
A piece of art created with an image someone else created strikes me as very similar to sampling in music. Of course the original creator should be paid.
https://en.wikipedia.org/wiki/File:Barack_Obama_Hope_poster.jpg
Interestingly, the Obama hope poster designer had to pay the lowly AP pool photographer beaucoup bucks in 2011 for his re-interpretation of the ap photog’s image. How on earth did this diva’s spat make it to the Supreme Court?
A piece of art created with an image someone else created strikes me as very similar to sampling in music. Of course the original creator should be paid.
Ever since the Red Wedding episode of GoT, reaction videos (videos of people watching TV and movies or listening to music) have been a big thing on Youtube. The same controversy is playing out.
So when Thomas does speak up in oral arguments he's ... not stupid, huh?
Fox News said in 2020:
> Famously quiet Supreme Court Justice Clarence Thomas on Monday asked questions during the court's remote oral arguments, marking just his third time speaking during the sessions in over a decade.
(That article lists the other "most recent" times (then) that Thomas asked questions: Once in 2019, and once in 2016, and that one in 2016 was the first time in 10yrs.)
(So, he's speaking up more often? Maybe he got some coaching to deal with glossophobia?)
gahrie said...
Ever since the Red Wedding episode of GoT, reaction videos (videos of people watching TV and movies or listening to music) have been a big thing on Youtube. The same controversy is playing out.
If you ONLY show the people's reactions, dont' show / play what they're reacting to, then I would say there should be no copyright issues.
If you include the copywriter music / video, then I think there should be a copyright issue
gadfly said...
So it appears, right or wrong, that POTUS will likely permit Andy Warhol’s work that conveys a meaning or message different from Lynn Goldsmith’s photo, by flattening dimension, shading, and nuance on what happens when a human being’s personality is flattened for consumption in popular culture.
1: SCOTUS, not POTUS
2: No, SCOTUS seems strongly likely to make Warhol's estate pay
From The Bulwark:
Why didn't you get something from the National Enquirer? it's far more credible
It’s working. Once ahead in the polls, Democrat Mandela Barnes, the lieutenant governor of Wisconsin, is now trailing Republican incumbent Ron Johnson in the state’s race for U.S. Senate . . . . One factor is an onslaught of negative messaging that seeks to paint Barnes as a crime-loving radical. A key word here is “paint.”
No, the key words here are "crime-loving radical", because that's what he actually is.
He celebrated the George Floyd riots. Now he's paying for it, as he should
So, every single thing wrong. Well done, gadfly
gahrie said...
Ever since the Red Wedding episode of GoT, reaction videos (videos of people watching TV and movies or listening to music) have been a big thing on Youtube. The same controversy is playing out.
If you ONLY show the people's reactions, dont' show / play what they're reacting to, then I would say there should be no copyright issues.
If you include the copywriter music / video, then I think there should be a copyright issue
They're relying on the fair use exception which revolves around the same exact issue... how much change/addition needs to be done to qualify as "basing on" instead of "stealing"?
But...what happens on Thursday nights??? Is that the weekly Supreme Court poker game/dance party? Does Justice Thomas DJ?
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