The Andy Warhol Legal Diaries

Andy Warhol
Photo by David Lefranc/Kipa/Sygma via Getty
Eriq Gardner
March 21, 2022

These days, everyone gets fifteen minutes of fame, but not everyone scores a date with the U.S. Supreme Court. Will Andy Warhol? On Monday, the justices declined to take up several dozen cases discussed at a conference late last week, but teased the art world by deferring a decision on Andy Warhol Foundation for the Visual Arts v. Lynn Goldsmith. That would be the very hot legal dispute over whether Warhol is a copyright infringer. (Update 3/28: The Supreme Court will review this case.)

Warhol is a law nerd’s dream—even in death. A few years ago, his estate battled the Velvet Underground for the right to license the famous banana album cover. Around the same time, Warhol’s heirs defended an antitrust case for allegedly cornering the market on authentication of his works. And last year, while the world was watching Mathew Rosengart free Britney Spears, I was fascinated by the attorney’s other legal battle—a case over whether “re-screening” (similar to retouching) Warhol’s “Campbell’s Soup Cans” series rendered them fakes. When it comes to Warhol, there’s a lot to stare at in puzzled amazement. But it’s the Andy Warhol Foundation’s court fight with Lynn Goldsmith that is setting new legal ground.

Goldsmith is a photographer who licensed her images of the musician Prince to Vanity Fair in the 1980s. After Prince died, Goldsmith learned that Warhol had created a series of silkscreens using her photograph without permission. When Goldsmith complained, the Andy Warhol Foundation went to court to get a declaration of copyright fair use. At the District Court level, the Andy Warhol Foundation initially succeeded, but then last March, the U.S. Court of Appeals for the Second Circuit gave Goldmith the win.

Circuit Judge Gerald Lynch noted that it may have been true that Goldsmith wanted to portray Prince as a “vulnerable human being” while Warhol’s intent may have been to strip the musician of humanity and display him as a popular icon. But whether a work is transformative, and therefore perhaps deserving of being deemed a fair use, “cannot turn merely on the stated or perceived intent of the artist or the meaning or impression that a critic—or for that matter, a judge—draws from the work,” wrote Lynch. 

Instead, Lynch said, courts must examine how the works “may reasonably be perceived” and assess whether the secondary work “stands apart” from the primary source and “comprise[s] something more than the imposition of another artist’s style.” In this particular instance, the appeals court concluded, Warhol’s work “retains the essential elements” of the photograph “without significantly adding to or altering those elements.”

The art world was shocked. After all, this was not just any artist who was being deemed a copyright pirate. This was Andy Warhol, the Pop Art pioneer who fixed his gaze at everything from the mundane to the famous and also experimented with mass production. He’s arguably more relevant than ever. Just note all the discussion this past year about the value of art amid the rise of NFTs, or non-fungible tokens. The Bored Ape Yacht Club? Yeah, Warhol did that sort of thing a half-century ago. (Warhol is also now the subject of a new six-part Netflix docuseries from producer Ryan Murphy.)

The Andy Warhol Foundation, represented by Latham & Watkins, took its huge legal setback to the Supreme Court. A petition for certiorari (read here) invited the justices to revisit Acuff-Rose Music v. Campbell—a 1994 opinion that concerned rap group 2 Live Crew’s use of Roy Orbison’s Oh, Pretty Woman. That 27-year-old opinion articulated the factors that courts should consider when determining fair use. The Warhol Foundation focused specifically on how the Second Circuit had narrowly construed the purpose and character of fair use, and offered what appellate attorneys refer to, sometimes dismissively, as the “parade of horribles”—an account of all the worst possible consequences of a ruling.

The Warhol Foundation petition claims, for instance, that the Second Circuit’s rule “chills artistic speech by imposing the threat of ruinous penalties on artists who must predict—ex ante—whether their new work will be deemed too ‘recognizable’ to merit fair use protection.” It also warns that “it may now be unlawful for collectors to sell—and museums to display—a large swath of works of art that derive inspiration from other works, without fear of draconian consequences.”

An exaggeration? Perhaps. But in shooting for a review, the Andy Warhol Foundation attracted others in the art world to support the proposition that, of course, artistic meaning must matter. They were flabbergasted that courts were being directed to look only at the surfaces and disregard underlying meaning. “[I]f fair use does not even protect these familiar works despite volumes and indeed entire careers devoted to explicating their meaning, it is difficult to see how there can be any breathing room for new artists or forms of art that challenge a judge’s notions of what counts as art,” wrote a group of art law professors in an amicus brief.

Will artists soon have to take their chances anyway? On one hand, the high court recently tackled copyright fair use in a different dispute (Google v. Oracle) concerning the lifting of computer code—albeit without offering too much clarity. The justices may not want to revisit the topic so soon. It probably also doesn’t help that Stephen Breyer, the justice who would most likely be interested in this case, is retiring.

But then again, Andy Warhol is a law nerd’s dream. And why wouldn’t the justices want to take a break from considering environmental disasters and hot button social topics to ponder the future of artistic expression. Better Andy Warhol than some Bored Ape, no? 

The Supreme Court’s New Toy 

– Speaking of copyright law, U.S. Senators Thom Tillis (a Republican from North Carolina) and Patrick Leahy (a Democrat from Vermont) have just introduced legislation that would aim to identify piracy-filtering technologies and encourage adoption by online networks. Interestingly, the bipartisan proposal came less than a week after both Tillis and Leahy were honored at an inaugural awards ceremony by the Motion Picture Association. In fact, it was Leahy who gave Tillis a ride to the March 15 event in Washington D.C. Tillis then returned the favor during the ceremony by complimenting Leahy’s acting in The Dark Knight Rises. (Look it up.) The good vibes between the two evidently continued, and MPA’s investment in a pair of trophies has paid off. Will we see anything nearly as productive at the Academy Awards this coming Sunday?

– Back at the Supreme Court, practitioners are playing with a new toy—a linguistics tool that helps decode the meaning and intent of statutes. The tool is popping up in legal briefs and appears destined to be used by the justices. One proponent compares “corpus linguistics” to the introduction of the world’s most powerful telescope. “Certainly, astronomers could glimpse the heavens from earth before the Hubble was launched,” write a pair of law professors in a just-published article. “But the increased clarity and scope the Hubble brought to astronomic inquiries was revolutionary.” 

– Meanwhile, the justices also declined today to review a case about what happens when a government entity infringes copyrighted material. Three years ago, the justices ruled that states couldn’t be hauled into federal court by copyright owners because of the 11th Amendment to the U.S. Constitution. In Jim Olive Photography v. University of Houston, a follow-up case, a copyright owner attempted to at least hold the government responsible for a violation of the Takings Clause of the 5th Amendment. The Texas Supreme Court rejected that approach, seeing copyright infringement as different from the typical appropriation of physical things since stealing in this context didn’t mean an owner’s lost possession. Alas, the high court has decided not to disturb this precedent. Without further Congressional action, states are immune and that raises the prospect, as Justice Breyer mused a few years ago, that a local government could get into the streaming business by appropriating Marvel movies and charging $5 a pop.

More Johnny Depp Drama

Of all the lawyers I’ve gotten to know over the years, by far the nastiest is Adam Waldman, who was once a registered lobbyist for Russian oligarch Oleg Deripaska. Years later, he reportedly tried to cut a deal with the Justice Department for Wikileaks founder Julian Assange. But it was through his connection to Johnny Depp that he really became notable. According to court papers, Waldman was introduced to the actor by representatives of Saudi Prince Abdulaziz bin Salman to help with money problems. These connections may sound impressive, even if it adds up to nothing more than being the legal profession’s Forrest Gump. Since becoming Depp’s attorney, Waldman has navigated the actor towards a very litigious path while Depp’s career has fallen apart.

In Depp’s libel suit against ex-wife Amber Heard over her column in The Washington Post, which suggested that Depp had abused her, a judge booted Waldman from the case for leaking confidential materials. Later, Twitter suspended Waldman’s account for violating its privacy policy. I don’t think Waldman has done a particularly good job, and I once wrote a column recommending that Depp fire him. That said, at a summary judgment hearing later this week, on the road to a trial that’s scheduled next month in Depp v. Heard, he’s involved in a pretty cutting-edge legal issue where he could rightfully prevail.

Heard is pursuing counterclaims against Depp over what Waldman has told the press. Specifically, she wishes to hold her former spouse accountable for Waldman saying that she’s made “false allegations of domestic abuse” and perpetrated an “elaborate hoax to generate positive publicity [to] advance her career.”

Depp gives three key reasons why these counterclaims should be rejected. First, Heard has no evidence that he authorized his lawyer’s statements. Second, she can’t prove actual malice: that is, Waldman knew the supposed “hoax” was, in fact, true, that the domestic abuse did take place. And third, the statements are protected opinions.

I think the actual malice issue is the most interesting issue here and reminds me of a similar situation involving Bill Cosby and attorney Marty Singer. A few years ago, after ex-supermodel Janice Dickinson claimed being libeled when after she alleged being drugged and raped by Cosby, Singer put out a press statement calling the allegation “fabricated.” At the time, Singer added, “People coming out of nowhere with this sort of inane yarn is what happens in a media-driven feeding frenzy… We’ve reached the point of absurdity. The stories are getting more ridiculous.”

The defamation suit eventually failed because Dickinson couldn’t prove actual malice. As the judge noted, since Singer wasn’t present at the alleged rape, the only way he could know it actually happened contrary to the public statement is if Cosby admitted it to him. “However, evidence of this communication from Cosby to Singer comes within the attorney-client privilege,” the judge wrote. “Thus, Dickinson cannot obtain this information in discovery.”

It amounted to libel’s Catch-22. In the Depp case, it appears from court papers that Heard deposed Waldman to find out what he knew. Waldman confirmed he made press statements but wouldn’t add anything else for the record. Waldman relied on attorney-client privilege to shield his conversations with Depp.

Heard now wants to take the issue of actual malice to a jury. As soon as Thursday, we could find out if the Virginia judge adopts the same reasoning as the Cosby case or instead gives her a shot based on the lawyer who just couldn’t shut up.