In the late 1970s and early ’80s, Lynn Goldsmith, a polymath skilled as a photographer and a musician, took pictures of many of the period’s prominent rock stars, including the Rolling Stones, Patti Smith, Bruce Springsteen, the Police, Talking Heads, and Prince. Some images are in vivid color, and others in black and white. Some were taken in unrecognizable, decontextualized spots; others were shot on rooftops in the heart of Manhattan, with New York City’s architecture providing the backdrop. All of them have the lush, analog softness of film, and, especially if viewed together as an entire collection, evoke a specific era in music and in the city.
Goldsmith’s prolific and historically significant output has deservedly been archived in various institutions. One of her images was also enshrined by Andy Warhol, who used a photograph she took of Prince as the basis for his illustrations of the musician. But at least in some legal and art circles, Goldsmith may end up being remembered not so much for her beautiful photographs, but for her legal dispute with the custodians of Andy Warhol’s art, which the Supreme Court will hear on October 12.
The dispute started when Goldsmith learned that her 1981 photograph of Prince, which she’d taken in a quick session in her New York studio, was the basis for Warhol’s illustrations of the rock star. In 2019, the United States District Court for the Southern District of New York ruled that Warhol’s image was protected by fair use. The appellate court reversed, principally on the grounds that Warhol’s image is not sufficiently transformative because it “retains the essential elements of its source material” and Goldsmith’s photograph “remains the recognizable foundation.” In other words, the original is too visibly baked into Warhol’s iteration.
To Goldsmith, the question is one of justice; her website describes her battle as a “crusade,” an impassioned effort to make sure that “copyright law does not become so diluted by the definition of fair use that visual artists lose the rights to their work.” If the Supreme Court agrees with her legal challenge, a doctrine that is central to our freedom of expression and cultural growth will be damaged and weakened, possibly for decades to come.
If you head over to Google Scholar, you’ll be greeted with an invitation to “stand on the shoulders of giants,” an old (as in medieval) homage to the trite but essential idea that art and science build on existing work. (Google presumably uses it because Newton referenced it in one of his letters.) If you’re a jazz musician, you channel a rich library of standards. If you’re an architect, you apply principles from earlier periods (or, in some tongue-in-cheek cases, other areas of culture). If you code, you leverage existing libraries. And so on. No one starts from scratch; no one creates in a vacuum: “A hundred times every day,” Einstein wrote, “I remind myself that my inner and outer life are based on the labors of other men, living and dead.”
But what if you’re barred from the building blocks that would allow you to create your project? What if you can’t access those original materials—say, a photograph of an emerging musician—because they’re copyrighted and, legally speaking, not free for the taking? If you live in the U.S., you have the option of contacting the owner and asking for permission. You may be ignored. You may receive permission. You may have to pay a license fee—if you can afford it (networks routinely charge thousands of dollars for short video clips, for example).
Or you could throw caution to the wind and exercise your fair-use rights, which allow you to use a reasonable amount of content without permission or payment.
The American doctrine of fair use isn’t as old as medieval clichés, but it’s respectably aged at nearly two centuries. (The English version, like a lot of English beer, is older but not necessarily better.) A paradigm example of fair use is an excerpt quoted in a scholarly work. In fact, that’s precisely what was at issue in the earliest American case, which was published in 1841 and concerned George Washington’s letters. Judge Joseph Story found the use infringing because of the sheer volume of letters that were copied, but the opinion also notes that “a reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism,” and enumerates the fair-use principles that courts apply to this day—and not just to books and letters but to photographs, music, films, paintings, software, and other copyrightable content.
One of the favorite shibboleths among advocates of free expression is that ideas are as free as the air. By itself, though, that maxim leaves out the reason for its own importance. Ideas need to remain free, because ideas like to connect to other ideas. They like to find different media, different combinations, different modes of expression, different audiences. The invitation to stand on the shoulders of giants is literally built into stained glass at the Chartres Cathedral, making the glass itself an example of the kind of meld that happens when ideas remain free to join other bodies. To a large degree, fair use lets that happen by allowing not only ideas but their expressions to meld, too. It’s not just Warhol and Prince. Fair use is the doctrine that allows us to record broadcast materials, permits filmmakers to incorporate clips of existing materials into their projects, and makes it possible for Google to show thumbnails of images when we do a search. Without it, our cultural experience would be markedly different, and certainly not better.
Fair use, in short, is the legal mechanism through which pieces of copyrighted materials move from one work to another without the owner’s imprimatur; it’s how the legal system allows us to stand on the shoulders of giants when we don’t have the money to pay the enterprising copyright owner for the privilege. It’s the legal vaccine that protects the flow of creativity, high and low.
So why attack it, like Goldsmith is doing, especially if you yourself are an artist who understands the importance of creative freedom?
Disputes around the scope of fair use are essentially grounded in two conflicting views of copyright law. Copyright maximalists—those who advocate for an expansive, impermeable, and sometimes even perpetual copyright—believe copyright owners should be able to charge for virtually every use of their works, much like a car-rental company charges for every rental. Copyright reformers, in turn, see this approach as too extreme. Artists should be rewarded, of course, but the fundamental and constitutional purpose of copyright—“to promote the progress of science and useful arts”—is realized not only when the general public has access to copyrighted materials, but also when generous pieces of copyrighted material can be broken off and used by downstream adapters for their own creations. To frame it in First Amendment terms, more speech is better, and an aggressive and overweening copyright regime creates chilling effects that harm us all.
Prince himself appears to have been a copyright maximalist: He notoriously used copyright to scrub unwanted content from the internet, and Universal Music, presumably at his behest, even went so far as to demand that YouTube remove a clip of a child dancing to one of his songs in a homemade video (a dispute that ultimately generated precedent helpful to fair-use advocates). Warhol, in contrast, viewed existing content as source material for his own work, which, of course, is what he did with Goldsmith’s photograph. Whether he would sue someone to protect his own work is another question, but he certainly viewed others’ intellectual property as artistic ingredient.
Prince, for one, seemed most interested in controlling his image when he launched his digital cleanup initiative. Some artists want to control the integrity of their art and how it appears in public. And for a lot of people, the incentive is economic: Copyright owners want to control their content so they can capitalize on its value. In all cases, though, an expansive fair-use regime threatens to undermine the copyright owner’s control by allowing other people to use the copyrighted content without permission (and without profit). Whether for dignitary, artistic-integrity, or pecuniary reasons, copyright maximalists don’t want an assertive fair-use doctrine that undermines their control.
And because those who see copyright as merely property, rather than speech, effectively reduce creative output to its commercial value, it’s an odd historical twist that Warhol’s art is potentially a target of the very commodification it highlights.
Goldsmith’s argument falls in the maximalist camp and may generate externalized costs: Because everyone benefits from a robust fair-use doctrine, while vindicating her interests, Goldsmith may turn everyone else’s into collateral damage.
Warhol’s image transforms Prince from the vulnerable and uncomfortable three-dimensional person we see in Goldsmith’s photo into a floating, two-dimensional, disembodied face emerging from smooth, richly saturated color. The same faint sadness lingers in both images, but, aesthetically, the two are far apart. Warhol’s image isn’t a mere replica, in other words—it adds substantial expressive content that conceptually and aesthetically distinguishes it from Goldsmith’s image. The similarities that are there are, in turn, immaterial: They’re mostly the mere result of Prince looking like, well, Prince, rather than Goldsmith’s interpretation of him.
Even if the two images were the same, moreover, their meanings would still be different. Goldsmith’s image highlights Prince’s androgyny and vulnerability. Warhol’s underscores the cold commodification of cultural icons. New meaning is the touchstone of conceptual art—it’s why Duchamp’s urinal isn’t a urinal anymore—and the touchstone of a fair-use analysis, too: If the secondary user adds new meaning, the use is eligible for the fair-use exception. And of course Warhol has to invoke Prince—and the photo of Prince—if he wants to comment on both the musician and the way he’s portrayed in the media.
If I were to include the original photo in this article and comment on it, I’d add some new meaning to it, which (depending on what exactly I said) should qualify it for fair use. This is effectively what Warhol did by converting a portion of the original image into a drawing. Instead of adding meaning with text in an article, he added meaning visually on canvas. That kind of use should be protected.
The Supreme Court might not be persuaded. It might find another basis to rule against Warhol, or simply agree with the Second Circuit’s assessment. But any outcome in Goldsmith’s favor that dismisses the fair-use arguments would be culturally dangerous. Because the Supreme Court’s decision will generate a principle that will apply beyond this dispute, Goldsmith is attacking not just this particular use, but potentially all forms of art that rely on similar techniques. This decision will shape not only other courts’ thinking, but also that of content creators and, as a result, the content itself.
When the Supreme Court finds a particular use to be fair, it provides a safe framework for that genre of creativity, as, for instance, it did with parody in Campbell v. Acuff-Rose Music, Inc., in 1994. Creators now feel confident in crafting parodies that use copyrighted materials: In 2001, for example, the Eleventh Circuit protected Alice Randall’s book parodying Gone With the Wind. But if the Court decides that a particular use is not fair, it will draw a punitive circle around other uses, too.
And any shrinkage in fair use creates chilling effects around the edges of the actual border. Content creators, especially independent ones who don’t have access to legal counsel, not only will abstain from doing the precise thing banned by the Court (e.g., drawing something based on a photo), but will also fear doing anything that approaches that particular use. In practice, it’s not just the specific use that will be attacked, but the entire class of similar uses.
Even relatively minor overzealous fair-use skirmishes can create undesirable outcomes. Netflix was recently sued because Tiger King used five seconds—yes, five seconds—of Ace Ventura 2 in one of its episodes (that dispute is ongoing). In the next iteration, will Netflix—or an independent filmmaker—decide to remove Hollywood content for fear of frivolous litigation? Will that cost us as audience members a giggle, a laugh, a small insight? What if 10 shows take out 10 clips, or 100 shows take out 100 clips? How many giggles, laughs, and insights will we lose? This is cultural death by a thousand cuts.
Consider instances that survived fair-use challenges: posters for Grateful Dead concerts in a book about the band’s history; the hilarious movie poster for Naked Gun 33 1/3: The Final Insult, which parodied Annie Leibovitz’s famous photograph of Demi Moore; playing John Lennon’s “Imagine” in a documentary about the perception of religion in popular culture. Our cultural history is plainly richer as a result of these integrations, just as it’s richer with Warhol’s image in it.
The Goldsmith camp could argue that it’s not attacking the broader doctrine of fair use but merely a single use that isn’t fair in the first place. That argument would be persuasive if this kind of use had already been deemed outside the bounds of the doctrine. But it hasn’t been; indeed, that’s precisely the question. Goldsmith is asking the Court to banish this type of use, and, by virtue of that prohibition, to constrain the doctrine itself. The challenge is directed not only at these images or this particular type of use, in other words, but at the shape and structure of fair use itself—which, from the perspective of anyone who advocates for free and open expression, is an attack on fair use itself.
This process usually happens out of sight, in courtrooms, private settlements, studios, and edit rooms. When content creators remove elements because they worry about lawsuits, they cover up their tracks, and we don’t see the empty spaces left behind. We don’t know what we don’t see, so we don’t miss it. But a diminished fair use leads to diminished content and a diminished cultural experience. And, to quote Roger Waters, is this the life we really want?
Warhol’s image is not infringing; the district court got it right. Goldsmith has a valid reason to be frustrated—she, like all creators, deserves recognition for her work. But Goldsmith’s desire for legal vindication goes too far. It threatens to diminish a doctrine that gives essential breathing room to creative expression. That’s an incongruous step given that, elsewhere on her website biography, Goldsmith says: “Creativity is based on breaking limiting thought patterns, busting through fear, taking risks.” The Court ought to fortify fair use precisely because the doctrine creates protected space for those risks, and allows creative risk-takers—and our culture—to thrive.