Supreme Court Justice Elena Kagan chided her liberal colleague Justice Sonia Sotomayor for her majority ruling that she said would “stifle creativity” and leave “in shambles” a fair use test that is often used in copyright cases.
Sotomayor’s 7-2 decision gave a win to concert photographer Lynn Goldsmith, who alleged that print and silkscreen artist Andy Warhol infringed on her copyright when he used one of her photos of the singer Prince for his transformative artwork.
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Kagan, an appointee of former President Barack Obama, and Chief Justice John Roberts, an appointee of George W. Bush, were the only justices to dissent from the majority’s decision. Notably, it marked the first time the pair dissented together in a 7-2 vote, according to Adam Feldman, founder of Empirical SCOTUS.
Kagan wrote that the majority’s decision “hampers creative progress and undermines creative freedom. I respectfully dissent.” She added that their ruling for Goldsmith would “make our world poorer.”
“It will 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, one of three liberal justices on the high court, wrote.
Kagan’s dissent was also abnormal in that it marked only the third time in the Supreme Court’s 7-2 decisions that Kagan has dissented from Sotomayor, a colleague with whom she often agrees.
Court watchers on Thursday found Kagan’s rebuttal of Sotomayor’s opinion to be highly abnormal for justices that are typically so closely aligned.
Additionally, the court’s newest liberal justice, Justice Ketanji Brown Jackson, joined a concurrence with Trump-appointed Justice Neil Gorsuch that cited “contextual clues” in the copyright statute that the pair believe support the majority’s readings of the law.
Notably, the majority stressed that it was considering only the use of Goldsmith’s photo in the Warhol print sold to Conde Nast, which was separate from Warhol’s previous use of the photograph on a 1984 cover of Vanity Fair.
“In particular, the court expresses no opinion as to the creation, display or sale of any of the original Prince Series works,” Sotomayor wrote.
Intellectual property attorneys told the Washington Examiner that the majority decision only “narrowly limited” the interpretation of fair use and that this decision likely would not impede on Warhol’s other works in museums and public displays.
“Other uses of Warhol’s silkscreens, such as displaying Warhol’s Orange Prince in a nonprofit museum or a book, were not considered by the Court and Gorsuch’s concurrence suggests that such uses might be considered fair use because they do not act as commercial substitutes,” Stephanie Bunting Glaser, counsel at Patterson Belknap Webb & Tyler LLP, told the Washington Examiner.
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However, other intellectual property experts stressed that the ruling on Thursday would upend the question of whether a challenged use is “transformative,” or at least make that now a matter of “secondary importance,” Bruce Ewing, head of Dorsey & Whitney’s Trial Department, told the Washington Examiner.
“Indeed, the entire body of case law that has focused the fair use inquiry on the issue of whether a challenged use is or is not transformative is now of questionable validity,” Ewing added.
