Sotomayor and Kagan "Go Back To School" Each Other in Warhol v. Goldsmith

Does The Relationship Between Justices Sotomayor and Kagan "Have Much Of A Future"? Or was this just their "Fifteen Minutes" of Flame Wars?

As a general matter, the Court's progressives vote in lockstep. Last term, Justice Sotomayor agreed with Justice Kagan, at least in part, in 90% of the cases. (The only higher affinity was between Chief Justice Roberts and Justice Kavanaugh at 97%.) In all cases that matter, Sotomayor and Kagan must unite. They are both are left-of-center, but approach the law from radically different perspectives. Sotomayor is firmly committed to her progressive principles, and preaches that message to adoring fans around the globe. In many ways, Sotomayor is like a liberal Justice Thomas--and I mean that as a compliment. By contrast, Kagan is the shrewd tactician who never loses sight of how to achieve her goals over the longterm. I often wonder how many of the votes she casts she actually believes in. In that regard, Kagan is like a liberal Chief Justice Roberts--and I don't mean that as a compliment.

Like the South Bronx and the Upper West side, these two jurists are neighbors, but are worlds apart. And over time, I suspect that quiet conflicts have built up on the left. It must be tough always having to hold your nose and vote together. There have been lots of fortune cookies and paper bags over the years.

Yesterday, those simmering tensions seem to have boiled over in Andy Warhol Foundation v. Goldsmith. Justice Sotomayor wrote the majority opinion for a 7-member majority. Justice Kagan wrote a dissent, which was joined by the Chief Justice. The majority opinion stretched 38 pages, and the dissent was about the same length. (Though the page-count was padded by many pictures.) Both opinions responded to each other, over and over again. And the tone was sharp, and at times, mean. It reads like a Twitter flame war. Let me summarize the case, in the spirit of my past imagined group chats. And, in the spirit of the case, I borrowed liberally from the actual decision without citation.

@Sonia: Apparently @Elena took an art history class in college and an IP seminar in law school and thinks she's an expert on everything. But we are following *actual* law here.

@Elena: Did you actually read Campbell and Google? Did you actually see Warhol's artwork? Warhol is not an Instagram filter. #NothingComesFromNothing

@Sonia: We are judges, not art critics. Goldsmith's photo and Warhol's artwork serve the same essential purpose--a photograph in a magazine article. #NoFairUse

@Elena: They're not similar. #Disembodied #Rotated You doctored the images to make them look similar in #Figure6! #WarGold

@Neil and @KBJ: You two need to take a Twitter timeout.

@Sonia: Elena is focusing on a case that is not even before the Court! #SleightOfHand #Misstatements #Exaggerations

@Elena: Sonia's opinions is getting ratio'd because of its ipse dixit. #SelfRefuting

@Sonia: And, by the way, I actually litigated intellectual property issues. Did you ever litigate anything @Elena?

@TheChief: Yeah, I want to get in on this. I'll join Elena's opinion which gratuitously attacks a member of my Court. #Institution

You're welcome. I just saved you from having to read eighty pages. In candor, Justice Gorsuch's short concurring opinion, which was joined by Justice Jackson, should have been the opinion of the Court. It managed to make all the right arguments in a few page, without this JV-squabbling. Would it have been so hard for everyone else to jump ship? Justice Thomas, assuming he made this assignment, would probably take this one back. I also think had Justice Breyer still been on the Court, he could have defused these clap-backs. The Stevens paper consistently show Breyer lowering the temperature. Now that role falls to (checks notes) Gorsuch and Jackson?

This opinion "will not age well." It does not have "much of a future." Justices Sotomayor and Kagan both need to go "back to school." I hope this "fifteen minutes" of flame war is over.

On a related, tea-leaf-reading notice, I observed that Justice Kagan looked especially dour during oral arguments in Jack Daniels, another IP case. Her narrow view of "parody" and comment about not having a sense of humor makes much more sense now. Kagan's defeat in Warhol spilled over into the whiskey case--or is it squeaked other into the chew toy case. I read so many puns, mixed metaphors, parentheticals, and em-dashes in the Kagan dissent that my brain hurts. I like to think Justice Scalia could have written a far more forceful dissent in about 10 pages. Nothing comes from nothing, but sometimes less is more.

Comments

[AmosArch]

The Court just screwed over tons of youtubers, twitter artists, and t shirt makers.

[Kazinski]

Probably.

But if they are using copyrighted work for commercial purposes isn’t that the whole point of Copyright?

The grounds of the decision are actually quite narrow: “In this Court, the sole question presented is whether the first fair use factor, “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.”

So I think using this decision in a case where the use is truly transformative, parody, commentary, or educational then they’re ok.

But the t-shirt vendors are probably screwed.

In this case it seems like maybe using the Warhol painting might have been in competition with the original:
"In 2016, petitioner Andy Warhol Foundation for the Visual Arts, Inc. (AWF) licensed to Condé Nast for $10,000 an image of “Orange Prince”—an orange silkscreen portrait of the musician Prince created by pop artist Andy Warhol—to appear on the cover of a magazine commemorating Prince.

They might have been ok if the magazine was commemorating Warhol.

[AmosArch]

I think fair use can be tightened up a little in commercial cases but they should do something about the ridiculous copyright lengths which made fair use necessary in the first place.

[Kazinski]

Actually they should dial back copyright to 35 years max.

Both their copyrights would have expired 4 or 5 years ago, and we'd all be able to 'party like it's 1999'(1982).

[MatthewSlyfield]

Any adjustment in copyright terms has to come from Congress not the courts.

[KeithK]

One could make a reasonable argument that the current duration of copyrights violates the constitutional authorization of "for limited Times". (The fact that the court has previously rejected this argument is beside the point...)

[CJColucci]

Really? Make it.

[Dilan Esper]

Actually, since originalism is in vogue these days, it can be pointed out that the original copyright term passed by Congress in 1790 was 14 years plus 14 years renewal for a total of 28.

So just like we look to history and tradition to see what gun regulations are permissible, one could look to that and say that "limited times" refers to terms comparable to 28 years. Note the first Patent Act had a 14 year term, and now its at 20. If Congress passed a Patent Act providing for life plus 70, that might be unconstitutional too under original meaning.

[KeithK]

See Eldred vs. Ashcroft (2002). The argument there was that extending copyrights violated the Copyright clause rather than explicitly saying that the term itself was unconstitutional. Dilan's comment shows how one could frame the argument in originalist grounds. Eldred found that the law was constitutional but it was 7-2 with dissents, not an unsigned per curium.

[David Nieporent]

The fair use doctrine long long long preceded ridiculous copyright lengths.

[Alphonse Gaston]

Didn't Jerry Ford discover that?

[Bored Lawyer]

"They" means Congress, which extended Copyright duration to absurd lengths.

[Intelligent Mr Toad]

RE: "We are judges, not art critics."

Clarence Thomas has a history of criticizing male nude photographs.

[bernard11]

sometimes less is more.

Physician, heal thyself.

[Anon]

But I can’t die happy until I know who wins the abortion debate

[Rev. Arthur L. Kirkland]

You genuinely can't foresee how the modern marketplace of ideas will handle that one?

[Religion and Politics, my life]

When you go to God , try out that 'it was only a debate to me" thing and see how it goes.

[bernard11]

Are you saying He is pro-life?

I might have a few issues of my own to raise with Him.

[Vryedni]

Physician, heal thyself

+1.

I enjoyed this passage:

In candor, Justice Gorsuch's short concurring opinion, which was joined by Justice Jackson, should have been the opinion of the Court.

"In candor?" Has this dude ever given us anything but his unedited, candid opinion, as if every thought that passes through his head is worthy of publication?

[Alpheus W Drinkwater]

I'm not sure what he meant by "in candor," but I do agree with him that Justice Gorsuch's concurrence was the most convincing argument. Bickering about how transformative Warhol's work was seems pointless, and as Gorsuch points out, not required by the text of the statute.

[Longtobefree]

What difference, at this point, does it make?

[Armchair Lawyer]

Kagan does seem a bit off in her opinion.

Here's the facts.
1. A photographer licenses her photo to an artist, for a one time use.
2. The artist then uses it multiple times for multiple different uses.
3. The artist (or his foundation) then sells the resulting art works (or images thereof) multiple times.

[cMh]

"Kagan is like a liberal Chief Justice Roberts–and I don't mean that as a compliment." You should, because Kagan and Roberts are the only two members of the court (except perhaps Jackson, whose record is too sparse to know yet) who still are worthy of respect. All the others have become nothing but partisans using whatever means at their disposal to force their policy preferences on the country, no matter what history, tradition, and words actually require or allow. Kagan and Roberts, by contrast, at least occasionally seem to be able to rise above partisanship in their votes and opinions.

[Rev. Arthur L. Kirkland]

Let Blackman have his fun. After the culture war's victors regain control of the Court, Blackman will be sad to the point of a suicide watch. This shit seems to be all he has in life.

[CJColucci]

A frequent blog commenter named Loki13 had a rule of thumb: In contested cases, whenever Roberts and Kagan agree, they are probably right.

[hoppy025]

One's an ugly lesbian Puerto Rican and the other is an ugly lesbian Jew.

[Intelligent Mr Toad]

You are confused- you are thinking of your mother and your father.

[blue heron]

I rarely see women commenters on this page. Is it because the commenters tend to be incel sexists or merely racists and anti semites?

[Vryedni]

I'm not sure the majority are either, but those like hoppy are both.

[Alphonse Gaston]

I think it's a matter of interest and priorities. My wife wonders why I spend so much time typing on the internet, instead of doing something more productive.

[hoppy025]

Because women are too busy yapping on the phone or watching reality TV.

[Dan Schiavetta]

There are many, many Bronx liberals and many, many Upper West Side liberals. And then there are the many, many Harlem liberals. The left wing is a diverse place.

[SimonP]

Only a Staten Islander living in Houston would describe the UWS and South Bronx as "neighbors." I think he probably meant the UES, but even that would be wrong.

[Rev. Arthur L. Kirkland]

He puts every bit as much thought and skill into this as he does with Today in Supreme Court History.

[Rev. Arthur L. Kirkland]

"I'll take Anachronisms for two hundred, Alex."

Referring to the women by first name, but to the man as The Chief . . .

[bzzzzzzz] What are . . . what are things a white, male, obsolete, right-wing blog might do or say?

[ding, ding] That is correct!

Announcer: "Clingers gonna cling! We'll be back tomorrow, and every day, with more stale, ugly, conservatism . . . until replacement, of course."

[Tan]

What drivel is this? Eugene Volokh and co. should consider vetting Balckman's posts every now and then.

[Tan]

I mean, imagine the guy who wrote this blog post being your law professor.

[Rev. Arthur L. Kirkland]

You'd be at South Texas College of Law Houston, one of the worst law schools in America.

I feel sorry for the poor bastards . . . but bad decisions have consequences.

[Rev. Arthur L. Kirkland]

Prof. Volokh knew precisely what he wanted when he added Prof. Blackman to the Conspiracy and he has received it.

Carry on, clingers.

[Kazinski]

I think Goresuch is spot on here:

"Ms. Goldsmith seeks to license her copyrighted photograph to exactly these kinds of buyers. And because the purpose and character of the Foundation’s challenged use and the purpose and character of her own protected use overlap so com pletely, Ms. Goldsmith argues that the first statutory factor does not support a fair-use affirmative defense. - - - -
As I see it, the second view of the law is the better one.... the first statutory fair-use factor instructs courts to focus on “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.”

If you compare the use of this derivative work by Warhol to the Campbell's soup can, its easy to see the soup can work is not in competition with the original, here the the original and the derivative are in direct competition for commercial use.

[Tan]

Yes, and that's why AWF should lose under factor four. But this was (supposed to be) a factor one case.

[Alpheus W Drinkwater]

The Gorsuch concurrence is directly addressing the factor one requirement that the court consider "the purpose and character of the use." I don't understand your assertion that the concurrence would apply more to factor four.

[JonFrum]

This is the ultimate victory of feminism - I've lived long enough to see a SCOTUS catfight. 'They are women, hear them roar!'

[KeithK]

I wonder if Thomas assigned this opinion assignment was an exercise in game theory. Let Sotomayor flame on a case that is maybe less important in the grand scheme of things. Not that there's any rule saying that her opinion here prevents her from writing other majority opinions for the term but it's tradition to spread them out among the justices.

[Religion and Politics, my life]

THey are both unimpressive 3rd-rate legal minds.
Sotomayor argued that under COVID “We have over 100,000 children, which we’ve never had before, in serious condition, and many on ventilators.” It was 5 000.

Kagan --- without giving my view, let liberal and Libertarian friends justify her Ramos v. Louisiana decision, where Alito contested the Supreme Court’s 6–3 decision striking down split verdicts, which allow conviction by a nonunanimous jury.

[Rev. Arthur L. Kirkland]

Religion and Politics, my life

To what do you describe your religiosity?

Gullibility?

Childhood indoctrination?

Inability to handle the reality-based world?

An overheated fondness for fairy tales?

The old-timey right-wing bigotry?

Choose reason. Be an adult. Or, at least, please try.

[Religion and Politics, my life]

Your billboard-sized stupidity gives me great hope. Not one thing you said is anything more than sticking your tongue out.
But let's keep your moronic and juvenille writing out in front, shall we 🙂

[David Nieporent]

"Hur, dur, I repeat things that I heard on Fox News. I is smart."

[Randal]

In which Josh (again) demonstrates his confusion of ideology for principle.

(As cMh already pointed out.)

CJColucci also beat me to the observation that this is the perfect case for testing out Loki's Law: If Kagan and Roberts agree, that's the correct opinion, otherwise whichever one Alito is against.

I think it holds up. Kagan/Roberts had the better argument here.

[jdgalt1]

If the Justices, or their proxies or impersonators, are going to start Tweeting at each other, we will need to find or create a legalese version of UrbanDictionary.com (a site that is very helpful when you need to look up some coined word or abbrev that turned up in a Tweet or even a Usenet post).

I'd like to hear if there is a site that translates Ebonics.

[Just Eric]

Comparisons to Sotomayor insult all other justices. The wise Latina is all about identity and feelings over legal reason. Gorsuch's gender-bending contortions to please the rainbow delusion nation run a distant second on current court.