AWF v. Goldsmith (Pt. 5): The Dissent is a Very Dangerous Undertaking, Indeed.
We’re well outside of the narrowest and most obvious limits now.
RECAP! As ever, here are the key points from prior entries (which are still being inaccurately reported in the media):
The plaintiff in AWF v. Goldsmith was not Andy Warhol the artist, but The Andy Warhol Foundation.
Lynn Goldsmith - an accomplished, professional photographer - did not sue the Foundation; AWF sought a declaratory judgment against Goldsmith.
The Supreme Court did not rule on the artwork Orange Prince; it ruled on the use of a reproduction of Orange Prince on a magazine cover [have questions on 1-3, see Day 1].
The Andy Warhol Foundation spent over $2.1 million on legal fees between 2017 and 2021 for a case it brought to the courts, over a $10,000 licensing fee it received from a magazine [if the math seems off, see Day 2].
Goldsmith expressly disclaimed all remedies as to museum display, collector possession, and sales of Orange Prince. That is legalese for “Goldsmith did not sue AWF over the actual artwork Orange Prince and in fact seems to have always been fine with the artwork’s existence.” [if this is a needle scratch, see Day 3]
The majority opinion explains that a fair use exception (right or defense) must be assessed based on each instance of use and requires the substantiation of necessity [for more on fair use and necessity, see Day 4, or keeping reading!]
For the last entry in this series, we are covering the dissenting opinion.1
Why discuss the side that lost? While not legally binding, the reasoning of the minority justices influences public debate, frames arguments made by lawyers in lower courts, and in some cases, informs the viewpoints that ultimately lead to new rulings.
Kagan’s dissent is directed at a popular audience, which means you’re probably going to read a lot more about what the dissenters said than what the majority ruled.2
Let’s begin with Kagan’s ending:
“Still more troubling are the consequences of today’s ruling for other artists. If Warhol does not get credit for transformative copying, who will? And when artists less famous than Warhol cannot benefit from fair use, it will matter even more. Goldsmith would probably have granted Warhol a license with few conditions, and for a price well within his budget. But as our precedents show, licensors sometimes place stringent limits on follow-on uses, especially to prevent kinds of expression they disapprove. And licensors may charge fees that prevent many or most artists from gaining access to original works. Of course, that is all well and good if an artist wants merely to copy the original and market it as his own. Preventing those uses—and thus incentivizing the creation of original works—is what copyrights are for. But when the artist wants to make a transformative use, a different issue is presented. By now, the reason why should be obvious. “Inhibit[ing] subsequent writers” and artists from “improv[ing] upon prior works”—as the majority does today—will “frustrate the very ends sought to be attained” by copyright law…It will stifle creativity of every sort. It willimpede new art and music and literature. It will thwart the expression of new ideas and the attainment of new knowledge. It will make our world poorer.”
Who would possibly agree with the majority ruling if this parade of horribles is the result?3
Well, I still agree with the majority, because this is all highly unlikely. After reading the four previous posts and the analysis below, I hope you will agree with them, too!
1. A Dangerous Undertaking
Kagan's dissent is an engaging read full of pop culture needle drops and Renaissance name-checking. It is also the most egregious example I have ever seen of “the dangerous undertaking.”
Justice Oliver Wendell Holmes famously wrote: “It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.”4
Despite being “trained only to the law,” Kagan makes at least one thing clear: she is here to analyze some art.
All told, she spends approximately 6.5 pages on copyright law and devotes the other 29.5 pages to art analysis and aesthetic theory. Over those 29.5 pages, Kagan explains precisely how Orange Prince (The Artwork) was made. She conducts a formal analysis. She conducts an iconographic analysis. She dips into semiotics and flirts with critical theory.5
Kagan paints herself as an outcast sophisticate in a room full of Philistines, but her dissent relies on the kind of outdated art historical arguments that built the elitist, androcentric, absurd art world we have.
The dissent is not a legal opinion; it’s art criticism. And Kagan is entirely out of her depth.
But I’m not - so let’s keep going!
2. Kagan’s History of Copying is…Basic
Kagan spends an immense amount of space on the history of copying, which is largely inapposite to a legal analysis, as the works she discusses (a) were not subject to the kind of copyright laws we have now or, alternatively, (b) use references from the public domain, which is wholly legally and thus misguided for any discussion of the fair use defense.
For example, Francis Bacon’s Study after Velazquez’s Pope Innocent X, which incorporates a visual reference from 1650. 303 years apart!
I find such found these comparisons useful when teaching art history classes to 18-year-olds (and actually have used this very comparison in my slides). However, this pedagogical device is a willful misreading and misapplication of precedent in a Supreme Court dissent.6 There are rules about what we do and do not include in legal rulings, and this is why extensive art analysis is generally on the no-fly list.
Additionally, the legal definition of copying has changed greatly since 1510, when Kagan’s compressed example begins. In fact, the first “copyright” case in Italy (where Giorgione painted Sleeping Venus, another work that appears in the dissent) happened in 1511. Albrecht Durer was extremely pissed at Marcantonio Raimondi for copying his work, and the Venetian Senate recognized the harm posed to Durer!7
Furthermore, had you failed to notice, we’re not in Italy or France. The first “fair use” case in the United States didn’t happen until 1841. So, anything before 1841 or from another non-common law country is an ahistorical attempt to convince you of a “timeless” embrace of copying by artists across the globe that has just now been scurrilously rejected by seven ignorant American justices.
It’s bunk.
3. Kagan Believes in the Value of the Artist’s Touch.
Buckle in.
Kagan opens her argument with: “Andy Warhol is the avatar of transformative copying.”8
Judges and justices don’t usually make such sweeping statements. But…rolling with Kagan’s basic history of copying and applying “transformativeness” as a timeless concept…to understand why anyone might think that a Warhol is transformative just because Warhol made it (or applied his “style” to it), we need to back up and understand the basic history of conceptual art.
Here it a very short intro.
In 1917, Marcel Duchamp turned a urinal upside-down, wrote a pseudonym on it, and entered it into an art exhibition. He continued recontextualizing similar objects, calling them “Readymades,” and said of them, “an ordinary object elevated to the dignity of a work of art by the mere choice of an artist.”
Marcel Duchamp, Fountain, porcelain, 360 × 480 × 610 mm, 1917 (this replica made in 1964), Tate Gallery
Earth-shaking at the time, but if a Brooklyn MFA student puts a single coffee cup in the middle of a gallery in 2023, the New Yorker will probably make fun of her. Why? Because an artist identifying a quotidian object as art is not earth-shaking anymore because transformativeness is often historical and contingent.
Gold Marilyn - which no serious art historian or legal scholar believes is in danger of being charaterized as copyright infringement, even after the majority opinion - was transformative when it was made in 1962 because nobody had ever made anything like it before. No one had yet commented on celebrity culture and consumerism in Warhol’s way. In 1962, when Monroe’s death was still a fresh wound, Warhol used the visual language of Medieval iconography to enshrine Saint Marilyn in the public imagination. Brilliant.
Warhol used the general technique over and over again, until it became a recognizable style that is universally recognized today. But style is not protected by copyright law.9
And in 2023, commenting on celebrity culture and the commodification of famous humans is not exactly avant-garde. It wasn’t even avant-garde in 1984, when Warhol made The Artwork.
I want to keep this essay focused on the case, so here is a long footnote about value and reproduction.10 Let’s keep moving, shall we?
While Warhol the artist wanted to be a machine, it is in any estate’s financial interest that we understand everything the artist touched to have value. The paintings, the silkscreens, the photographs, the Polaroids, the letters, the diaries. These items, as explained in Day 2, are valuable to collectors on the basis of their connection to Warhol. The more impressive Warhol is, the more valuable the objects are.
But, as we also explained in Day 3, market value has no legal bearing on transformativeness. However, aesthetic and intellectual value do. Practically, these values are intertwined with market value, because an artist’s value rises when he is aesthetically and intellectually valued by collectors, museums, and art historians. The “new insights” and “new aesthetics” described in fair use jurisprudence are the coin of the realm at art fairs.
It was radical and shocking and awesome when Duchamp made art out of bicycles and urinals. In 1917. Do you want a tech guru who thinks he’s Duchamp to be allowed to call your art his art because he’s a self-appointed genius? In 2023?
Dear reader, what kind of world do you want to live in?
4. Kagan Elides Artists and Estates, to No Helpful End.
I mentioned the Foundation’s financial interests above, so let’s address that issue before moving on.
My law practice works exclusively with creatives, and we have two main specialties - intellectual property and estates. We do both because as a trained art historian, I know they are related fields, and it is essential for creatives to protect their magic and craft their legacy. However, we know that the creative and the estate are not the same.
Right away in the dissent, Kagan writes: “By the time of the licensing, Warhol had died, and the Warhol Foundation had stepped into his shoes. But for ease of exposition, I will refer to both the artist and his successor-in-interest as Warhol.”
It’s rhetorically convenient, but this is a great example of what happens when you let a person “trained only to the law” loose on art.
Allow me to further convince you that an artist and his estate are not the same, and may have very different goals:
I have no idea what Jean-Michel Basquiat would think of washable rugs imprinted with his paintings. He died in 1988, at age 27, of a heroin overdose, without a will. Therefore, his artworks passed by law to his estranged parents, and then to his sisters, who presumably made a deal with Ruggable.
There is nothing wrong with making a deal with Ruggable. In fact, that is where intellectual property and estates overlap in my law practice.
See, artists don’t usually benefit from high financial rewards in their early lifetimes (not breaking news if you are a practicing artist). Therefore, one justification for the existence of copyright is economic equalization: the MBA gets rich quickly in private equity, while the MFA gets rich in his old age, or sometimes only after death. For example, Paul Cézanne and Richard Prince found success later in life. Copyright lasts for the artist’s life plus 70 years, and thus Beyoncé’s “great-great-grandchildren already rich.” The Ruggable deal is exactly the kind of licensing deal that provides for art families in the way investments provide for private equity families. 100% the point of copyright law (which is why my practice does both).
Back to Kagan’s point - we understand Warhol as a titan of the art historical canon today, but step back and ask yourself why. Yes, he’s immensely talented, but why does Warhol loom so large in the public imagination when he was accepting Time commissions just a few years before his death?
What did I tell you about artists’ estates?
Who is responsible for ensuring that Warhol takes his “rightful” place in history?
Who controls the circulation of Warhol artworks unsold after his death?
Who controls the licensing of Warhol artworks?
Who can refuse access to the Warhol archives?
Who loans Warhol artworks to museum exhibitions?
Who oversees the Andy Warhol Museum?
If you answered - The Andy Warhol Foundation - you’re correct!
So, please ask yourself: who is served by the collapse of Basquiat the painter and Basquiat’s Estate? Who is served by the collapse of Warhol and the Foundation?
The answer is not Etsy print sellers, TikTok creators, elementary school teachers, or any of the manifold other cohorts who depend on fair use.
The answer is The Art Market.
Wait, is that another term of art, like The Artwork and The Cover? Yep. Let’s keep going.
5. Kagan Does Not Care About Artists Beyond the Blue-Chip Market.
Despite what you read in the New York Times, “The Art Market” is not the only market for art (this is not breaking news if you are a working artist or regional gallery owner).
There are art markets - plural.
And the overwhelming majority of working artists (i.e., the vast majority of legal subjects affected by AWF v. Goldsmith) sell work outside “The Art Market,” a term that refers only to the market for “blue-chip” art (i.e., the kind shown at the Venice Biennale and hung in LACMA; the kind bought by people who buy yachts; the kind declared an asset in a portfolio and locked up in The Geneva Free Port…you get the point).
So who is included in The Art Market?
Let me be very frank with you. If you’re a female artist, you’re probably not going to sell your work in The Art Market. That’s not fun to hear, but it’s true. “In 2022, a stunning $11 billion worth of artwork was sold at auction. Of that number, male artists’ works made up $9.7 billion, while women artists’ works accounted for just over $1 billion: just 9.3% of the overall total.”
See the big green Pac-Man shape? Those are the men who eat up the vast majority of sales at auction. Males also dominate NFT sales (77%) and museum collections (87%) (and unsurprisingly, 85% of artists in museum collections are white and 88% of people hired for museum executive roles are white).
So, on any given day, half the population is more likely to be in Goldsmith’s position than Warhol’s. Even though Goldsmith is an extremely successful professional whose work is in the collection of the Museum of Modern Art, she’s more likely to count on licensing income than blue-chip gallery income.
This is relevant to the dissent because Kagan could not be less interested in how artists like Goldsmith make a living. Kagan doesn’t even seem to realize or care that artists outside the blue-chip market exist.
Or perhaps she thinks their work is shit, and not worth the same level of protection as Warhol’s.
Which brings us to…
6. “The Genius Exception”
Raw materials, you say? Yep, Kagan is bringing it back!
Kagan dramatically deploys a quietly appalling justification for the unpaid reuse of another human being’s creative output when she writes: “Look at how (as Judge Leval’s seminal article put the point) the original was “used as raw material” and was “transformed in the creation of new information, new aesthetics, new insights.”
The Genius Exception is offensive and intellectually lazy. Furthermore, it’s neoliberal bullshit.11
Is there any other academic field in which it is still permissible to equate a human being’s creative production with raw materials?
7. Kagan Does Not Understand “Necessity,” Legally or Aesthetically.
As I discussed in Day 4, the majority opinion moves away from the Genius Exception (and raw materials) to revive the nearly-dead requirement of “necessity,” an aspect of fair use jurisprudence that tends to distress legal scholars and art historians.
The pearl-clutchers, again: “We cannot demand that artists explain themselves! Artists do not know what they’re doing in the moment of creation! We cannot require geniuses to tell us their process!”
Ladies and gentlemen, my counterargument:
That’s 1,000+ pages of artists explaining themselves.12 It’s assigned in countless art history courses. It’s frequently cited by the very writers of briefs amici who claim artists can’t explain themselves.
Necessity demands we return to a form of art historical analysis that went out of fashion for quite some time: biographical analysis. It’s still really popular in legal circles. In fact, we call it “testimony” or “deposition,” and we often require it!
Richard Prince makes necessity perfectly clear in his writings, commentary, and deposition records. Also, in the screenplay he wrote to accompany Canal Zone. Here are 48 pages of translated Richard Prince explaining necessity (he has obviously been helped by art experts and lawyers). Here is some untranslated Richard Prince. Here are some pulled quotes.
“I loved the look, and I loved the dreads.”
“A balls-out, great, unbelievably looking great painting that had to do with a kind of rock-and-roll painting on the radical side, and on a conservative side something to do with Cézanne’s bathers.”
“I’m trying to make a kind of fantastic, absolutely hip, up-to-date, contemporary take on the music scene”
“Often I adopt a unique persona to go along with my works of art often portraying myself as a rebel, an outsider, or an outlaw. Adopting this unique persona allows me to discover and create new things.”13
It’s oblique, but if you’re an art historian trained to read artists’ writings, you can pierce the fog.
As curator Lisa Phillips wrote, “Pictures are a personal guide to finding orientation in life, whether physical, psychological, political, or sexual.”14 Richard Prince used Patrick Cariou’s photographs in Canal Zone because they turned him on. He thought Cariou’s pictures were sexy. He thought his friends’ pictures were sexy. He liked them even better when they were mingled.
That’s so simple, isn’t it?
We can’t choose our sexual preferences or turn-ons. You cannot make a person who likes men like women.15 You can’t make a person who likes blondes like brunettes. Some sexual proclivities are even more hyperspecific; this is why PornHub and RedTube have extensive filters. This is also why PornHub and RedTube have paid subscriptions. That’s how copyrighted content works - if you want the specific thing, you’ll probably have to pay for it.
Copyright law poses no problem if Richard Prince wants to get off on pictures of Rastafarians, blow them up to monumental proportions, and mix them with pornography and his friends’ photos. None, zero, zilch.
Copyright law may pose a problem when Richard Prince wants to exhibit the end result at the then-biggest art gallery on the planet and sell the end result for giant piles of money, all without compensating or acknowledging Patrick Cariou.
Except that, even after AWF v. Goldsmith, this is may be a fair use because Patrick Cariou’s work was necessary to Prince’s erotic excitement, which was necessary to the creation of Canal Zone.
I don’t have a problem with any of this. Personally, I’d still like to see Prince pay or at least acknowledge Cariou, but he doesn’t have to. Practically, post AWF v. Goldsmith, Prince is going to have to come to some kind of agreement (license or permission) with Cariou because every time Canal Zone is reproduced anywhere (magazine cover, postcard, Ruggable), it’s a new use and that use may not be protected.
Um, yes. Annoying, I know. This is a creative constraint.
But why does Kagan want to excuse the Foundation and artists like Prince from this kind of constraint? In what other legal field do we absolve legal subjects of the responsibility for explaining their decisions to break the law? In what other legal field do we say, “Break the law and take what you like, as long as you’re sufficiently famous!”
Which brings us to the dissent’s conclusion, when Kagan asks: “If Warhol does not get credit for transformative copying, who will?”
My answer: someone who can make a decent argument for necessity, that’s who.
And to conclude…
Dear reader, you are too smart for this dissent.
I believe that “aware appropriation and denatured, sterile appropriation are opposites.”16
I believe appropriation artists are capable of explaining their purpose of using another artist’s work (or at least asking an art historian to help).
I believe that together we can find ways to both protect, but also collaborate and create together through permissions, licensing, constraints, and when necessary, fair use.
I believe that the world will be richer - not poorer - if we cease labeling people as geniuses and raw materials, and respect individual creativity as valuable and protectable.
And now, I leave you with our questions from Day 1:
Who stands to benefit from an assertion of fair use?
Who will be characterized as mere “raw material”?
What are the consequences of our work?
What possibilities does our work serve?
What power structures is our work holding up?
I’m deeply interested in your answers to these questions. Tell me below, or find me at info[at]devosdevine.com
I’ll be posting every Friday about copyright, intellectual property, art, and creativity.
Hope to see you again soon.
A dissenting opinion disagrees with the majority opinion because of the reasoning and/or the principles of law the majority used to decide the case. A dissent does not create “binding precedent,” meaning that lower courts are not obligated to follow its rules. It does not become case law. A dissent can be used as “persuasive authority” by a lower court, meaning that a court may follow it, but is under no obligation to do so.
Kagan’s dissent is also directed at Sotomayor, but that’s its least interesting feature. Colleagues disagree all the time.
A parade of horribles is “a rhetorical device where one argues against taking a certain course of action by listing a number of extremely undesirable events that would result from it.”
The rest of the unabridged quote reads: “At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke. It may be more than doubted, for instance, whether the etchings of Goya or the paintings of Manet would have been sure of protection when seen for the first time. At the other end, copyright would be denied to pictures which appealed to a public less educated than the judge. Yet if they command the interest of any public, they have a commercial value -- it would be bold to say that they have not an aesthetic and educational value -- and the taste of any public is not to be treated with contempt. It is an ultimate fact for the moment, whatever may be our hopes for a change.” Ah yes, the quote that titled a thousand student notes. Bleistein v. Donaldson Lithographing Co. 188 U.S. 239 (1903) ]
Sadly, she never approaches post-colonial or feminist theory. Things might have turned out differently.
This is why battles of the experts suck. Contemporary art experts are persuasive writers trained to make extremely compelling arguments based on largely illusory principles. We use complex language from various fields - philosophy, aesthetics, literature, and more - to convince people that an object with no obvious value is incredibly valuable. That’s fine for The Art Market (except that The Art Market is rife with fraud), but it’s not an acceptable way to approach the formation of copyright laws that apply to all creators in all markets.
She also states (and this is the nadir of the dissent): “For Warhol, as this Court noted in Google, is the very embodiment of transformative copying.” Except that the Court never uses the word “Warhol” in Google v. Oracle. Kagan provides a long string citation that infers Warhol might be meant. I am deeply interested in this and will get back to you.
You can sometimes register a trademark for that.
Walter Benjamin’s 20th-century theories of reproduction are indispensable to all of this. Benjamin explains that “the aura of a work of art derives from authenticity (uniqueness) and locale (physical and cultural)…"even the most perfect reproduction of a work of art is lacking in one element: Its presence in time and space, its unique existence at the place where it happens to be" located…in being unique, the original work of art is an objet d'art independent of the mechanically accurate reproduction; yet, by changing the cultural context of where the artwork is located, the existence of the mechanical copy (an art-product) diminishes the aesthetic value of the original work of art. In that way, the aura — the unique aesthetic authority of a work of art — is absent from the mechanically produced copy.” The Work of Art in the Age of Mechanical Reproduction
In English: we perceive more value in artworks when the artist actually touched them. Early modern artists priced on this model; Rubens’ whole pricing scheme was organized around the degree to which Rubens himself engaged with the many, many copies in varying media that his studio produced. This is why you’ll rarely (never?) find a painting attributed to RUBENS the person in a museum. It’s the “School of Rubens” or “Studio of Rubens” because he didn’t make anything alone and charged an astronomical amount for “the’s artist’s touch.” As in, he painted on some highlights and charged more. This is normal, by the way. Half the clients in my practice don’t make their work themselves. It’s fabricated in a factory, because it’s massive or technical, and can’t be done by one person.
Here’s my favorite quick take on that subject: George Monbiot, “Neoliberalism – the ideology at the root of all our problems,” The Guardian, April 15, 2016.
Kristine Stiles and Peter Selz, eds, Theories and Documents of Contemporary Art, 2nd Edition. Kristine Stiles is my mentor, and arguably the world’s foremost authority on artists’ writings.
I’ll add the pages when I’m back in my office later this week.
Lisa Phillips, “No Man’s Land,” 1993 Whitney Biennial, p59.
I realize Governor DeSantis intends to try, but science says he’ll fail!
Jaron Lanier, You Are Not a Gadget, p276.