Supreme Court Justice Elena Kagan published on Thursday her scornful dissent over a copyright case concerning the implications of the fair-use doctrine and transformability, where she complained that a majority ruling by fellow Democrat appointee Sonia Sotomayor would "stifle creativity of every sort."
"It will impede new art and music and literature. It will thwart the expression of new ideas and the attainment of new knowledge. It will make our world poorer," Kagan wrote.
Sotomayor, along with six other justices, found that the Andy Warhol Foundation (AWF) had infringed on a copyrighted picture taken by photographer Lynn Goldsmith.
Goldsmith, who in 1984 granted a limited license to Vanity Fair for the one-time use of the photo as a basis for a Warhol silkscreen, sued for copyright infringement after the AWF licensed the image, titled "Orange Prince," to Conde Nast in 2016.
"Lynn Goldsmith's original works, like those of other photographers, are entitled to copyright protection, even against famous artists," the court said in the majority opinion. "Such protection includes the right to prepare derivative works that transform the original."
"The use of a copyrighted work may nevertheless be fair if, among other things, the use has a purpose and character that is sufficiently distinct from the original."
"In this case, however, Goldsmith's original photograph of Prince, and AWF's copying use of that photograph in an image licensed to a special edition magazine devoted to Prince, share substantially the same purpose, and the use is of a commercial nature," the court said.
Chief Justice John Roberts joined Kagan in her dissent.
"It is not just that the majority does not realize how much Warhol added; it is that the majority does not care," Kagan wrote. "In adopting that posture of indifference, the majority does something novel (though in law, unlike in art, it is rarely a good thing to be transformative)."
"Before today," she continued, "we assessed 'the purpose and character' of a copier's use by asking the following question: Does the work 'add[] something new, with a further purpose or different character, altering the [original] with new expression, meaning, or message?'"
Kagan also wrote that when the work did add something new "to a significant degree, we called the work 'transformative' and held that the fair-use test's first factor favored the copier. But today's decision — all the majority's protestations notwithstanding — leaves our first-factor inquiry in shambles."
Solange Reyner ✉
Solange Reyner is a writer and editor for Newsmax. She has more than 15 years in the journalism industry reporting and covering news, sports and politics.
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