The Supreme Court recently granted appellate review in the case of Warhol v. Goldsmith, asking the somewhat alarming question of whether Warhol’s color portraits are illegal art. Specifically, the court case asks whether Andy Warhol is a copyright infringer or a copyright fair user when he made one of his infamous color prints of the musician Prince (for a Vanity Fair cover) from a black and white photographic portrait made earlier by Lynn Goldsmith on assignment for Newsweek.
In the copyright and visual art communities, Warhol v. Goldsmith is a big deal. The Court of Appeals for the Second Circuit sided with the photographer, reasoning that the Warhol print was an unlawful derivative version of the underlying photograph, raising the specter that many (if not all) Warhol prints made in the same manner are unlawful. That is a scary concept for art collectors and museums as well as for artists who work in similar genres. But should anyone else care? And why does the Court? In the current climate when abortion access, voting rights, religious freedom, affirmative action in higher education, and the legality of state gun regulation are actively debated at the Supreme Court, why is a copyright case about contemporary art and photography a priority? Have the Supreme Court justices suddenly stumbled upon a new favorite (and previously obscure) legal field of intellectual property? Or is something else going on?
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The Supreme Court, it seems, thinks intellectual property law, a federal statutory domain in the first instance, is a field in need of clarification.
It turns out the Supreme Court has been granting certiorari in intellectual property cases at a pace we haven’t seen before. In the first three-quarters of the 20th century, the Supreme Court decided only a few IP cases a decade, but in the last 20 years, the Supreme Court has more than doubled its IP caseload. The Supreme Court, it seems, thinks intellectual property law, a federal statutory domain in the first instance, is a field in need of clarification. In doing so, it is reshaping intellectual property law in light of changing technological and cultural trends for a new century.
For example, the Court has decided issues about whether genetic material can be patented and owned (Myriad), trademark law forbidding the registration of derogatory trademarks is consistent with the First Amendment (Tam), and copying key parts of computer code without paying or permission for use in a new technological environment is piracy (Google v. Oracle). Now the Court has decided to weigh in on Warhol and avant-garde art.
Most people know very little about IP, or they used to. Intellectual property law was previously a domain of technicians, a legal specialty that was isolated in practice and in law schools. Now, IP law is a central part of legal education, and law schools are building IP and technology law centers at a rapid clip to highlight the importance of the field in contemporary legal practice. It is such a prevalent legal field that is not only in law schools but also taught in business schools, graduate science and humanities programs, undergraduate schools and even high school.
The mainstreaming of IP leads it from an obscure corner of the law to a public consciousness that even teenagers acquire as they are admonished for reposting photographs without permission, encouraged to be “entrepreneurs and inventors” at early ages, and put © symbols on their papers or artwork to assert copyright control. These phenomena transfigure copyrights, patents, and trademarks into subjects of everyday importance. Today it is unexceptional to read about IP in news headlines or for it to be the subject of popular television shows.
The internet’s ubiquitous copying capacity may be an existential threat to intellectual property law. But everyday creators and innovators cannot live without the internet.
So maybe the Supreme Court wants to get in on this action, but why Warhol v. Goldsmith? Yes, the case is about resolving the doctrinal legal tension between a copyright owner’s right to control the preparation of derivative works and the secondary author’s right to transform those works into a new message for a new audience. But the case is about more than that. Today, in the internet age of user-generated content, 3-D printing, viral expression and digital transformation of the public sphere — with authors, inventors, users, and consumers all gloriously mixed up — IP is about more than markets and money. When we talk about IP today, we are talking about free speech, access to information and health care, the right of repair, fair wages and equal dignity. And when the Supreme Court, a narrator of national values, involves itself in IP disputes, it wraps its doctrinal discussions with these fundamental issues that sustain democracy, promote institutional resilience and sometimes also redirect our focus to the commonweal.
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The internet’s ubiquitous copying capacity may be an existential threat to intellectual property law. But everyday creators and innovators cannot live without the internet. And while, copying and dissemination of technology is nothing new, what is new is that the Supreme Court has more to say about it. The Constitution speaks of IP in terms of promoting “progress of science and the useful arts.” When the Court decides cases about IP currently, “progress” is explained by deeply rooted constitutional values like equality, privacy, democratic accountability, self-determination and distributive justice.
When we talk about IP today, we are talking about free speech, access to information and health care, the right of repair, fair wages and equal dignity.
And this, I surmise, is why the Court has granted review of Warhol v. Goldsmith. Will this case be about a solo photographer whose work was exploited without permission and payment by a celebrity artist (a question of equality, fair wages, and imbalance of power)? Will it be about free access to information and images that are already in the public domain (e.g., the features of Prince’s face) and the right of all speakers to make new expressions from that information, be it cutting-edge art or quotidian communication? Will the case focus on how photography is essential to the marketplace of ideas but media and news organizations fail to sustain the photography profession (a question of the resiliency of democratic institutions), whereas the art market thrives with sales of NFTs in the millions of dollars? Or might the case focus on how the contested question isn’t for a judge but for the jury, who may be as good (if not better) at evaluating the “meaning” and “message” of art, be it Warhol’s or Goldsmith’s?
Which value will predominate in the debate between the photographer and the Warhol estate is anyone’s guess. But for certain is that when the Supreme Court speaks about IP today, it will amplify these other core constitutional values in terms that demonstrate the urgency of art and science to social justice today.
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