For close to 30 years—up until last week—courts have wrestled with the question of when artists can borrow from previous works by focusing in large part on whether the new work was “transformative”: whether it altered the first with “new expression, meaning or message” (in the words of a 1994 Supreme Court decision). In blockbuster case after blockbuster case involving major artists such as Jeff Koons and Richard Prince, lower courts repeatedly asked that question, even if they often reached disparate results.
But in a major decision last week involving Andy Warhol, the Supreme Court pushed this pillar of copyright law to the background. Instead, the Court shifted the consideration away from the artistic contribution of the new work, and focused instead on commercial concerns. By doing so, the Court’s Warhol decision will significantly limit the amount of borrowing from and building on previous works that artists can engage in.
The case involved 16 works Andy Warhol had created based on a copyrighted photograph taken in 1981 by celebrated rock and roll photographer Lynn Goldsmith of the musician Prince. While Goldsmith had disputed Warhol’s right to create these works, and by implication the rights of museums and collectors to display or sell them, the Supreme Court decided the case on a much narrower issue.
When Prince died in 2016, the Warhol Foundation (now standing in the artist’s shoes) had licensed one of Warhol’s silkscreens for the cover of a special Condé Nast magazine commemorating the musician. Explicitly expressing no opinion on the question of whether Warhol had been entitled to create the works in the first place, the Court ruled 7-2 that this specific licensing of the image was unlikely to be “fair use” under copyright law.
This is not necessarily a problematic result, given that Goldsmith also had a licensing market. Yet despite the Court’s attempt to limit itself to the narrow licensing issue instead of deciding whether Warhol’s creation of the original canvases was permissible, the reasoning of the decision has far broader and more troubling implications.
To know what’s at stake, it’s important to understand the fraught doctrine of “fair use,” which balances the rights of creators to control their works against the rights of the public and other creators to access and build on them.
What’s sometimes lost is in this discussion is that copyright law’s purpose (perhaps surprisingly) is to benefit the public—benefit to an individual artist is only incidental. The theory behind the law is that if we want a rich and vibrant culture, we must give artists copyright in their work to ensure they have economic incentives to create. But by the same logic, fair use recognizes that a vital culture also requires giving room to other artists to copy and transform copyrighted works, even if the original creator of those works objects. Otherwise, in the Supreme Court’s words, copyright law “would stifle the very creativity” it is meant to foster. Thus, to win a fair use claim, a new creator must show that her use of someone else’s copyrighted work advances the goals of copyright itself: to promote creativity.
Unfortunately, the Warhol decision took this already complex area of law and made it even more complicated. Lower courts and legal scholars will be fighting for years about its applications. But one thing is clear: it is now far riskier for an artist to borrow from previous work.
Not only did the Court downgrade the importance of whether a new work is transformative, whether it “adds something new and important” (to use the Supreme Court’s words from a previous case). The Court also painted a bizarre picture of Warhol as an inconsequential artist. Surely the Justices of the Supreme Court know that Warhol changed the course of art history. But the Warhol who emerges in the majority opinion is a tame portraitist whose work is just not that different from the photographs on which it is based.
In the Justices’ formulation, Warhol is a “style,” an artist whose “modest alterations” of the underlying photograph brought out a meaning that was already inherent in it, whose work portrayed Prince “somewhat differently” from Goldsmith’s image. Justice Elena Kagan, in a scathing dissent, charged that the majority had reduced Warhol to an Instagram filter.
Nowhere in the majority opinion would you recognize Warhol as a once-radical artist, the one de Kooning drunkenly approached at a cocktail party to utter, “You’re a killer of art, you’re a killer of beauty.” Nowhere does one see the Warhol whom philosopher Arthur Danto called “the nearest thing to aphilosophical genius the history of art has produced.” That Warhol is the paradigm of an artist who brings new “meaning and message” to the work he copies, the very kind of artist that the now-diminished emphasis on transformative use was meant to protect.
Of course, this decision is not just about Warhol. For that matter, it’s not just about other pop artists, or about appropriation artists.
Any artist who works with existing imagery should now reconsider her practice. Hire a lawyer, maybe try to negotiate a license and be ready to move on if you get turned away or can’t afford the fee. The safest and cheapest route—a consideration particularly relevant to younger artists and those who are not rich and famous—is to just steer clear of referencing existing work. Maybe that’s the right direction for art; maybe copying and relying on past work should be discouraged. But given the centrality of allusion, emulation, and copying to the history of art, it’s hard to imagine that’s a good thing. This is particularly so in contemporary digital culture, where, as I have argued, copying has taken on even greater urgency in creativity. But like it or not, these are not questions that artists, critics, and art audiences get to decide. The Supreme Court just changed the future of art.