Justice Kagan accuses Justice Sotomayor of hypocrisy in Warhol decision

US Supreme Court Associate Justices Elena Kagan and Sonia Sotomayor on stage during Women’s History Month.
AP Photo/Pablo Martinez Monsivas

  • The Supreme Court on Thursday ruled in a copyright law case featuring art by Andy Warhol.
  • In his dissent against the 7-2 majority, Justice Kagan accused his colleagues of hypocrisy.
  • Kagan said Sotomayor’s decision, written for the majority, “would stifle the expression of new ideas.”

In her scathing dissent from the Supreme Court’s Thursday ruling against artists in a copyright case featuring a prince portrait by Andy Warhol, Justice Elena Kagan lashed out at her colleagues, accusing them of hypocrisy and stifling creativity, all dear Quoting Julie Andrews from the movie “The Sound of Music.”

The court ruled 7-2 against the Andy Warhol Foundation in the high-profile case, determining that the iconic artist had infringed on Lynn Goldsmith’s copyright of her own portrait of Prince by making an orange silk-screen print of the photo. Warhol’s print was later licensed to media giant Condé Nast for $10,000 and used on the cover of a magazine, and commercial use of the print was the basis for a copyright claim.

Counsel for the Warhol Foundation, and the dissenting Justices, Kagan and Chief Justice John Roberts, argued that the artist’s interpretation of the photograph had sufficiently altered the original to be considered “fair use” and is not subject to copyright claims. The majority, in an opinion authored by liberal Justice Sonia Sotomayor, disagreed.

Sotomayor wrote in his opinion for the majority, “The use of a copyrighted work may still be fair if, among other things, the use has a purpose and character that is substantially different from the original.” “In this case, however, Goldsmith’s original photograph of Prince, and the use of that photograph by AWF in an image licensed for a special edition magazine dedicated to Prince, share substantially the same purpose, and the use is a commercial of nature.”

Representatives for the Supreme Court did not immediately respond to Insider’s request for comment.

Prince photo by Lynn Goldsmith; Andy Warhol’s silkscreen print of The Prince, featured on the cover of Condé Nast magazine.
supreme court documents

Kagan, concurring with Roberts, took issue with the majority’s characterization that the Warhol print was not significantly different from Goldsmith’s photograph, citing social commentary for Warhol’s works and the labor-intensive nature of screen printing as defining factors of the work. referring to the process.

Kagan wrote, “Today’s opinion is that there is little evidence that the majority have actually seen these images, much less that it is linked to expert views of their aesthetics and meaning.”

Anyone, Kagan said the majority suggested, could have cropped, flattened, traced and colored the photo as the iconic artist Warhol did. Instead, she argued, Warhol did as artists did, and built on existing materials to create his own, new works.

“The majority attempt to minimize the visual disparities between Warhol’s silkscreen and Goldsmith’s photograph by rotating the former image and then superimposing it onto the latter,” Kagan wrote. “But the majority is trying too hard: its manipulated photo really reveals the importance of cropping and facial reconfiguration that went into Warhol’s image.”

Quoting the 1965 film “The Sound of Music,” Kagan wrote: “‘Nothing comes from nothing,’ observes the dissent, ‘Nothing can ever happen.’ So somewhere in copyright law, there has to be an ‘escape valve’ to make something good.”

Kagan cited a 2021 decision, Google LLC v. Oracle America, Inc. where the same group of judges referred to Warhol’s artwork as protected by fair use, only to walk those arguments back in this latest ruling.

Kagan wrote, “Most people claim not to be embarrassed by this embarrassing fact because the specific reference was to their celebrity images rather than their soup cans.” “But to draw a distinction between a ‘commentary on consumerism’ – which is how the majority describe his soup canvases – and a commentary on celebrity culture, ie the turning of people into objects of consumption, is stretching the baloney too thin.”

While Sotomayor, for the majority, argued that the ruling was due to Warhol’s superstar status and the use of his prints for commercial purposes, Kagan argued that its effects would reach far beyond the prominent names and were instead a matter of law. Will crush innovation on any performer’s fear of infringement.

“It would stifle creativity of every kind,” Kagan wrote. “It would stifle new art and music and literature. It would stifle the expression of new ideas and the attainment of new knowledge. It would impoverish our world.”

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