First Supreme Court Opinion to Contain Nudes (in Color, Yet, and 3 of Them)?

That's today's dissent in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, written by Justice Kagan and joined by Chief Justice Roberts (see pdf pp. 81-83). But I read the U.S. Reports only for the articles.

Note that at least one lower court decision, Cariou v. Prince [not the same Prince] (2d Cir. 2013), anticipated this. Law review articles had done the same, I'm sure (I did, for instance, in my Thinking Ahead About Freedom of Speech and Hostile Work Environment Harassment, 17 Berkeley J. Emp. & Lab. L. 305 (1996)), but I believe the Warhol dissent was the first Supreme Court decision to do this. Please let me know if there's some other precedent I've missed.

Comments

[Dilan Esper]

Interestingly, there's a pretty active scholarly debate about whether one of the paintings Kagan includes depicts masturbation as well as nudity.

Having said that, I said on Twitter and will say here that Kagan's dissent is the best dissent I have ever read. It's worth reading in full.

[David Nieporent]

Huh. No. This is the first time I remember Sotomayor so thoroughly trouncing Kagan in an argument.

[Alpheus W Drinkwater]

We don't get those two arguing like this very often.

[Bob from Ohio]

"best dissent I have ever read"

shrug. Boils down to lèse-majesté against Warhol, the majority does not recognize great art.

[Sarcastr0]

So far I’ve only read The Footnote. Guess I’m going in for the full case!

Edit: It's a copyright case. IP law is part of what drove me out of the biz.
Maybe if Baude talks about it in his podcast...

[Bill Poser]

If the Court is hoping to encourage more people to read its decisions, it needs to get some more up-to-date and attractive illustrations.

[Mr. Bumble]

“Chief Justice Robots” ???
An AI Chief?

[The Margrave of Azilia]

That would explain quite a lot.

[Eugene Volokh]

D'oh! Fixed. I must have Chief Justice Robots on my mind.

[Dilan Esper]

I for one welcome our new robot overlords.

[Dan Schiavetta]

You mean “protectors”!

[Mr. Bumble]

@ Eugene Volokh:
From the abstract:
If the software can create persuasive opinions, capable of regularly win-ning opinion-writing competitions against human judges—and if it can be adequately protected against hacking and similar attacks—we should in principle accept it as a judge, even if the opinions do not stem from human judgment.

Has anyone tried this?

[The Margrave of Azilia]

Wow, you had to scroll past a lot of text to get to the good stuff.

[nystateofmind]

Who is Chief Justice Robots? Did AI or Josh Blackman write this post?

[Bob from Ohio]

Funny thing is that Lynn Goldsmith's photos are hardly creative. Passport picture quality.

Of course the same could be said about Warhol's over-rated lazy art.

[Dan Schiavetta]

Might be the first time I agreed with you. Warhol wasn’t an artist. He was a vampire.

[Bored Lawyer]

“hardly creative”

But that’s enough for copyright protection.

Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity. 1 M. Nimmer & D. Nimmer, Copyright §§ 2.01[A], [B] (1990) (hereinafter Nimmer). To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, “no matter how crude, humble or obvious” it might be. Id. § 1.08[C][1].

Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991)

[myself]

I'm skeptical of this argument.

Certainly there's artists who are over-rated. But there's definitely a real talent required to make something seemingly simple that is still visually compelling.

[Frank Drackman]

Hey Now!!!!!!!!

[SRG]

I think all the justices had fun writing their opinions in this case. It certainly reads like it.

FWIW I went to a Warhol exhibition in Malaga a few years ago and I confirmed one impression, that he is not a great artist but an entertaining one, and formed another, that his "traditional" works - paintings and sketches - showed more artistic talent that he is given credit for, but they're still not great.

[BillyG]

If the court is up to date enough to include photos (in color even!) it should be up to date to use standard margins.

[Bored Lawyer]

Better yet, it should dispense with the ridiculous requirement to print briefs (with color-coded covers, like in kindergarten!) and just have them electronically filed. Ditto the Courts of Appeal.