The Warhol Diaries: Kagan v. Sotomayor

U.S. Supreme Court justices Elena Kagan and Sonia Sotomayor.
U.S. Supreme Court justices Elena Kagan and Sonia Sotomayor. Photo: Allison Shelley/Getty Images
Eriq Gardner
May 22, 2023

Modern art has always led to arguments over meaning and value—some might even say that’s the point—but who would have guessed that a fight over Andy Warhol would see two of the Supreme Court’s most liberal justices insulting each other in Latin? Alas, that happened last week in Andy Warhol Foundation for the Visual Arts v. Goldsmith, when Sonia Sotomayor and Elena Kagan stopped just short of declaring pistols at noon in a case that will influence the next few decades of creative expression in Hollywood and the arts. (Read the whole thing here, including Kagan’s second footnote where she asks the reader to measure Sotomayor’s “ratio of reasoning to ipse dixit,” which is SCOTUS-speak for bullshit.)

Despite some misreporting around the case, the majority did not rule that Warhol wasn’t entitled to paint his own rendition of a prominent photographer’s portrait of Prince. Actually, Warhol had explicit permission to do just that—albeit on a “one time” basis for a Vanity Fair article 40 years ago. The real problem stemmed from the Warhol Foundation’s 2016 licensing of other works that Warhol had apparently created based on the same photograph. Maybe best to think of them as outtakes. Anyway, as Sotomayor goes to pains to emphasize, the problem wasn’t the original creation but rather the licensing. The Foundation insisted that the entire Prince series constituted “fair use” due to the “transformative” nature of the artist’s works. It was the Supreme Court’s job to decide whether that argument held true.

Of the four factors that determine fair use, Sotomayor and Kagan clashed over what’s meant by the all-important first factor, “the purpose and character of the use.” Kagan argued that judges should consider the creative and communicative intentions of those using copyrighted works; her dissent praises Warhol’s artistic approach, highlighting the profound difference between his Prince painting and the original photograph. She also viciously critiqued the majority position, suggesting that it’s almost pointless to educate Sotomayor and the other justices who voted similarly (all but John Roberts) on the finer points of art. “For it is not just that the majority does not realize how much Warhol added; it is that the majority does not care,” she wrote.