Art is Doomed

Joining in on the spirit of becoming the guy who writes a newsletter on a topic way over my head, I want to discuss the recent highly-awaited Supreme Court Decision on Andy Warhol Foundation v. Goldsmith, which wrapped up last week, ruling against the Warhol Foundation.

The case had long drawn criticism and concern from artists and experts regarding its spillover into other copyright cases on the matters of free use — particularly on the impact on the future of art, with AI looming in the background.

First, let’s look at the basics of the case:

Just a few years after Newsweek commissioned photographer Lyn Goldsmith to photograph Prince for a series for their magazine, Vanity Fair licensed one of the photos for Warhol to use as a “reference” for his own work.

Vanity Fair paid Goldsmith just $400 to license the work as an “artist reference.”

After Warhol’s death in 1987, ownership of his work transferred to the Andy Warhol Foundation for the Visual Arts.

In 2016, Condé Nast (Vanity Fair’s parent company) used another image from Goldsmith’s original work in a Warhol commemorative issue. While Warhol’s foundation received $10,250 for the reproduction of Orange Prince, Goldsmith received $0.

Hinging on Warhol’s long-celebrated practice of ‘repurposing’ IP — most famously with his silkscreen portraits, which often used previously produced photos and media to serve as base material for his work — the case sought to determine whether these “altered” photographs constituted copyright infringement, rather than fair-use.

I read it now I’m making you

👉 Last night I read this

A super interesting look at the public/social housing policies of Vienna and how it should provide a model for the rest of the world

• Lessons from a Renter’s Utopia

Key points from the SCOTUS decision

• The terms of the original Vanity Fair limited license included terms such as a “one time” use

• Goldsmith was unaware of the 2016 reproduction until she saw the cover of the magazine, featuring Orange Prince.

• After Goldsmith notified the foundation that they had “infringed on her copyright.” She was then sued by the foundation for a “declaratory judgment of noninfringement, or, in the alternative, fair use.”

• AWF argues that the works were sufficiently “transformative” which would become the crux of the case.

• Gorsuch (gross), a member of the 7-2 majority, wrote in his concurring opinion that “Nothing in the copyright statute calls on judges to speculate about the purpose an artist may have in mind when working on a particular project.” He also goes on to write: “Nothing in the law requires judges to try their hand at art criticism and assess the aesthetic character of the resulting work.“ (thank god, right-wing SCOTUS Justices writing art criticism would be a cursed text)

• The majority goes on to include “three contextual clues” that back up their decision:

  1. Fair-use precedent requires the court to determine whether the defense used copyrighted work for criticism, comment, news reporting, teaching, scholarship, or research.

  2. The copyright statute protects a copy-right holder’s right for making “derivative works.”

  3. The court is must determine whether consumers conceive of the secondary work as a “market replacement” or “complement that does not impair demand for the original

Significantly, the decision includes the following line, which has led many to believe this will be applied narrowly rather than have the cascading effects/precedent that many feared: “The Court expresses no opinion as to the creation, display, or sale of any of the original Prince Series works,” 

Ok, enough legal bullshit. What does this decision actually mean for artists?

The SCOTUS decision to rule against the Andy Warhol Foundation found plenty of critics.

Chief among these are concerns that this would set a precedent for the gutting of “fair use,” a key legal protection for artists that has been deemed sacred.

In Justice Elena Kagan’s dissent, she posited that the majority should “go back to school” as they don’t understand Warhol’s significance and talent, as well as just how much Warhol “added” to his adapted works.

Quote of the Week

“Art and love are the same thing: It’s the process of seeing yourself in things that are not you.”

 Chuck Klosterman

The case was ultimately limited to the “licensing issue,” which hones in on this case specifically and provided optimists with the hope that it will be limited in its wide-ranging effects, which in its extreme could gut creativity for artists who may be handcuffed by legal measures & limited in their scope of work due to legal threats.

As Noah Feldman writes in the Seattle Times: “The Supreme Court has sided with individual artists - but against art itself”

So while the judgement did fall in favor or artists and their ability to protect the future earnings and ownership over their IP, in doing so, artists are possibly barred from the common practice of generating “creativity by sampling and remixing existing works.“

A.I. implications weigh heavily on this case. Depending on whether or not this opinion proves to be as narrow as reported, its widespread enforcement could lead to a losing game of wack-a-moll between artists and A.I.-generated works based on their name.