Judge Kagan accuses Judge Sotomayor of hypocrisy in Warhol’s decision

• The Supreme Court ruled on Thursday in a copyright law case featuring art by Andy Warhol.
• In dissenting the 7-2 majority, Justice Kagan accused her colleagues of hypocrisy.
• Written for the majority, Kagan said Sotomayer’s decision would “thwart the expression of new ideas.”

In her scathing opposition to the Supreme Court’s ruling Thursday against artists in the copyright case featuring The Prince’s Portrait by Andy Warhol, Justice Elena Kagan took aim at her colleagues, accusing them of hypocrisy and stifling creativity, all while quoting Julie Andrews’ beloved film “The Sound of Music.”

court to rule 7-2 v. The Andy Warhol Foundation in the high-profile case, determining that the iconic artist had infringed Lynn Goldsmith’s copyright on her portrait of the Prince by creating the orange silkscreen print of the image. The Warhol print was later licensed to media giant Condé Nast for $10,000 and used on the cover of a magazine, commercial use of the print being the basis of the copyright claim.

Attorneys for the Warhol Foundation and the dissenting justices, Kagan and Chief Justice John Roberts, argued that the artist’s interpretation of the image altered the original image enough for it to be considered “fair use”, not subject to copyright claims. The majority, in an opinion written by liberal Justice Sonia Sotomayor, disagreed.

In her majority opinion, Sotomayor wrote, “A use of a copyrighted work may be fair, among other things, if the use has a purpose and character sufficiently different from the original.” “In this case, however, the original Goldsmith’s photograph of Prince, and the AWF reproduction of that photograph in a photograph licensed for a special issue of a magazine dedicated to Prince, share substantially the same purpose, and the use is of a commercial nature.”

Supreme Court representatives did not immediately respond to Insider’s request for comment.

Kagan, with Roberts agreeing, objected to the majority’s characterization that Warhol’s print was not significantly different from Goldsmith’s, citing the social commentary attributed to Warhol’s work and the labor-intensive screen-printing process as determining factors for the work.

“There is precious little evidence in today’s opinion that the majority actually looked at these images, let alone engaged with expert opinions about their aesthetics and meaning,” Kagan wrote.

Anyone could have cropped, flattened, traced and colored the image, Kagan said, as the famous artist Warhol did. Instead, she said, Warhol did what artists do, and built on existing materials to create their own new works.

“The majority try to minimize the visual differences between a Warhol silk-screen and a Goldsmith’s portrait by rotating and then superimposing the former,” Kagan writes. “But the majority tries too hard: their manipulated image actually reveals the importance of cropping and facial reorientation that went into Warhol’s image.”

Quoting the 1965 film The Sound of Music, Kagan wrote: “Nothing comes from nothing,” opponents note, “Nothing can ever happen.” So somewhere in copyright law, there has to be an “escape valve” to create something good.

Kagan also referred to a 2021 judgment, Google LLC v. Oracle America, Inc. , where the same group of judges noted Warhol’s artwork as protected under fair use, only to retract those arguments in this latest ruling.

“The majority claim not to be embarrassed by this embarrassing fact because the specific reference was to his soup cans, not his celebrity photos,” Kagan wrote. “But the distinction between ‘commentary on consumerism’—which is what most describe on his soup plates—and commentary on celebrity culture, that is, turning people into consumer goods, is quite the cutting of the bullshit.”

While for the majority Sotomayor argued that the ruling was made because of Warhol’s star status and the use of his print for commercial purposes, Kagan argued that its effects would go far beyond major names and instead kill innovation due to any artist’s fears of breaking the law.

“It will stifle creativity of every kind,” Kagan wrote. “It will hinder new art, music and literature. It will thwart the expression of new ideas and the realization of new knowledge. It will make our world poorer.”