One of the U.S. Supreme Court’s far-right justices revealed a side of himself that few would have imagined, as he brought a lighthearted moment during the Oct. 12 hearing on the “fair use” doctrine in copyright law.
“Let’s say that I’m both a Prince fan, which I was in the ’80s,” Justice Clarence Thomas said, posing a hypothetical question to one of the lawyers.
Before Thomas finished his question, Justice Elena Kagan interrupted: “No longer?”
With the chamber erupting in laughter, he replied, “Only on Thursday nights.”
“Mmm hmmm,” Kagan responded.
Below is an audio recording of the hilarious exchange.
The case before the high court involves the question of whether pop art icon Andy Warhol’s estate owes rock ‘n’ roll photographer Lynn Goldsmith a licensing fee for basing Warhol’s portraits of Prince on one of her works.
There’s no question that Warhol used Goldsmith’s 1981 photo of Prince as his inspiration. Scotusblog.com reports that Vanity Fair asked Warhol to use Goldsmith’s picture as a reference for an illustration of Prince. The magazine paid Goldsmith a $400 license fee and credited her as the source of Warhol’s illustration, “Purple Prince.”
More than 30 years later, after Prince’s death in 2016, Vanity Fair’s parent company, Condé Nast, published a different image from Warhol’s Prince series, silkscreened in orange instead of purple. Warhol’s estate charged the publisher a $10,250 licensing fee but didn’t pay Goldsmith. She believes the estate owes her a licensing fee.
According to USA Today, the high court’s ruling could dramatically change the interpretation and enforcement of copyright protections, which could impact the multi-billion dollar entertainment industry and artists.
Goldsmith argues that Warhol's silkscreen images of Prince were based too closely on a photograph she took of Prince before the Purple Rain artist became a global superstar.
Below is a reproduction of Goldsmith’s black and white picture of Prince and Warhol’s secondary work based on her photo.
Warhol's foundation asserts that Warhol’s artwork falls under the fair use doctrine, which permits reproduction of copyrighted material without permission in some circumstances. They say that Warhol’s silkscreens qualify for fair use because it was transformative and conveyed a different message than Goldsmith’s original photograph.
But Goldsmith’s lawyers have argued that the fair use doctrine is unworkable, partly because it requires judges to evaluate whether secondary artwork is transformative enough compared to the original artwork that inspired it. They would like the court to also consider other factors, such as whether the two artworks are competing for the same consumers.
Some of the justices appeared to side with Warhol. Chief Justice John Roberts suggested that Warhol’s secondary work satisfied the fair use stands.
“It’s not just that Warhol has a different style. It’s that, unlike Goldsmith’s photograph, Warhol sends a message about the depersonalization of modern culture and celebrity status,” Roberts said, according to The New York Times.
Others appeared to align with the arguments of Goldsmith’s lawyers. Justice Samuel Alito questioned whether judges are qualified to “determine the message or meaning of works of art like a photograph or a painting.”
Justice Sonia Sotomayor underscored that photographers and artists compete in the same market, attempting to sell their work to publishers.