During a year in which the Supreme Court has captured more national attention than usual, the focus paid to what could be a monumental case of fair (or unfair) use has been somewhat muted. In the case, Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, the Justices will make a judgment on the transformation of art and what level of transformation can avoid claims of copyright infringement.
The district court in this case spent much of its opinion focusing on Warhol’s transformation of Prince “from a vulnerable, uncomfortable person to an iconic, larger-than-life figure.” But on appeal, the 2nd Circuit Court of Appeals accused the district court of assuming the role of “art critic and [seeking] to ascertain the intent behind or meaning of the works at issue.” The appeals court stated that the new work must “[stand] apart” from the inspirational original work with a “fundamentally different and new artistic purpose and character.”
During Roman Martinez’s oral argument for the petitioner, the Justices persistently questioned the importance of the ‘meaning’ of a work of art. They also analyzed whether the worldwide recognition and fame of the petitioner, in hindsight a ‘genius’, unfairly favors the works of established artists resulting in their works being considered transformative.
The Justices pushed Martinez on whether the artist’s ‘meaning’ should be weighed heavily in a fair use evaluation while asking how a judge should determine such a meaning. Martinez’s central argument seemed to be that Campbell’s precedent doesn’t require the court to determine exactly the intended meaning of the work, it just asks the court to establish that there is the possibility for new meaning to be extracted from the work. Justice Kagan pushed back on this argument, commenting on the lack of specificity.
I think this argument for Martinez is one that opens the door for too little protection for artists. Martinez did add that the new meaning would be “reasonably” perceived, but art is incredibly subjective to the viewer, so the idea that someone could extract new meaning says less about the artists’ transformation of a work and much more about the perspective of the viewer. After all, beauty is in the eye of the beholder.
In putting the onus on judges to determine the meaning of an artist’s work, I think the more dangerous possibility is that established artists will be given more leeway in transformation than artists who are little known or at the beginning commencement of their careers. As Lisa Blatt said, “Fame is not a ticket to trample other artists’ copyrights.”
Justice Kagan pointed to the hindsight bias that might affect cases under the evaluating criteria suggested by the petitioners:
I mean, now we know who Andy Warhol was and what he was doing and what his works have been taken to mean. So it's easy to say that there's something importantly new in what he did with this image. But, if you imagine Andy Warhol as a struggling young artist, who we didn't know anything about, and then you look at these two images, you might be tempted to say something like, well, I don't get it. All he did was take somebody else's photograph and put some color into it.
Martinez claimed that Kagan’s reasoning actually supports petitioner’s argument that finding transformation in this case will support emerging artists. But when I consider the case before the court, I recognize that I’m familiar with Warhol and his art, even though I am no visual art aficionado. His name and legacy echoes throughout the art world. To the contrary, before analyzing this case and despite having studied music in depth for many years, I had never come across Ms. Goldsmith, who is considered a groundbreaking music photographer. While the petitioners may deny it, this is a David and Goliath situation. Ms. Goldsmith’s work had been used, without credit, by Warhol. At some point, lesser known artists should be given credit where credit is due. I think the court should give that credit here and find in favor of Goldsmith.
 Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 382 F. Supp. 3d 312, 326 (S.D.N.Y. 2019).
 Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 992 F.3d 99, 114 (2d Cir. 2021).
 Transcript of Oral Argument at 29, Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, S. Ct. (2022) (No. 21-869).
 SCOTUS Bears Copyright Arguments Over Andy Warhol's Silkscreens of Prince, CBS News (Oct. 12, 2022), https://www.cbsnews.com/minnesota/news/scotus-hears-copyright-arguments-over-andy-warhols-silkscreens-of-prince/ [https://perma.cc/M6Y2-BLRH] [https://web.archive.org/web/20221130205435/https://www.cbsnews.com/minnesota/news/scotus-hears-copyright-arguments-over-andy-warhols-silkscreens-of-prince/].
 Transcript of Oral Argument at 37, Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, S. Ct. (2022) (No. 21-869).