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Hello everyone. We made

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we get started, I want to take a minute to remind

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1:27

Now, onto the show.

1:36

I'm Julia Longoria. This is

1:38

More Perfect. This

1:45

is pop art icon, Andy Warhol.

1:48

In

1:51

other words, you have no vision of the past,

1:53

the artistic trend, no vision of the

1:55

future trend. You're just doing whatever you feel

1:57

like.

1:59

Well, yeah.

2:11

We'll hear argument first this morning in case

2:14

number 21869, Andy Warhol Foundation versus

2:18

Goldsmith.

2:19

The ghost of Andy Warhol visited

2:21

the Supreme Court this term. While

2:24

most of the other cases were filled

2:26

with heated conversations in

2:28

legal use, here

2:30

You make it sound simple, but maybe

2:33

it's not so simple, at least in some cases. The justices

2:35

found themselves debating the meaning of form.

2:38

What is the meaning or the message of a

2:41

work of art? And color. But I'm sure there's

2:43

an art critic who will tell you there's a great difference

2:45

between blue and yellow. And

2:47

I think what a court would have

2:48

to do — Because at the center of this case are

2:51

two pieces of art. I

2:54

don't know, I never call my stuff art. See?

2:57

It's just work. Okay,

3:00

at the center of the case are two pieces of

3:02

work. One looks like a photograph and one looks like a painting.

3:04

But it looks like someone painted that from the

3:07

photograph. The photograph is

3:09

a black and white portrait of a face

3:11

that's familiar to a lot of people.

3:17

The musician and cultural icon,

3:19

Prince. And I'm a fan, so I recognize

3:22

the image right away. It

3:26

was taken by celebrity photographer Lynn

3:29

Goldsmith in 1981. The

3:33

other is the same image

3:35

of Prince's face, but the whole

3:37

thing is colored in orange.

3:38

It's got an unmistakable

3:42

Warhol look.

3:46

Going into the case, a question

3:49

at the center seemed to be, was

3:52

Warhol's portrait transformative?

3:55

Transformative? Define

3:58

that. form

4:00

Goldsmith's original photo into something

4:02

so new and different, that

4:05

it was okay for the Warhol Foundation

4:07

not to have paid her or gotten

4:09

her permission to use the photo first. The

4:12

image on the left is just a simple photograph,

4:15

a nice photograph. The image on the right

4:18

turns it into art. I don't know. No.

4:22

You can clearly still see

4:23

the original image and it's pretty clear. I

4:26

don't know.

4:29

They're almost not from the same planet.

4:32

That last voice is art critic Jerry

4:35

Saltz from New York Magazine. I

4:37

would argue the photograph

4:39

was just a drawing, just

4:42

a sketch, just an inspiration.

4:46

I believe that these

4:49

works of art that Warhol created

4:52

totally 100% transform the original product.

5:03

To Jerry, there's no question.

5:06

The Warhol is transformative.

5:10

I actually happen to disagree with you, I think.

5:14

In my own opinion, I'm 100% right. You

5:18

in my opinion are very,

5:21

very conservative. And

5:25

I am radical. I quickly

5:27

learned this case is kind of fun to talk about

5:30

because it shakes up traditional liberal

5:32

and conservative divides.

5:34

If you're starting to talk to people about it, it's

5:37

really hard to predict who they're going to side

5:39

with. Let's just say I'm the conservative

5:42

one to make this easy and you're

5:44

ultra radical. It is fun to be

5:46

a radical, isn't it? Yeah, you're

5:48

the radical, I'm the conservative.

5:51

Okay? Okay, cool. I

5:53

hate the idea that Justice Alito

5:57

and those other dweebs are

5:59

disgusting.

5:59

this because to me it's not

6:02

a legal issue, it's a

6:04

taste issue. The

6:06

legal question was whether the Andy Warhol

6:08

Foundation violated the photographer's

6:11

copyright. And in the oral

6:13

argument, you can hear the justices trying

6:15

not to sound like

6:17

art critics. How is a

6:20

court to determine the message or meaning

6:22

of works of art like a photograph

6:25

or a painting? How does the court

6:27

go about doing this?

6:34

So this week on More Perfect, we're

6:37

going to find out how they go about doing this.

6:40

Interpreting art. We

6:42

have the artist Andy Warhol, who

6:44

claims he's not making art, the

6:47

photographer, who claims Andy Warhol's

6:49

a copycat, and

6:52

the Supreme Court justices who insist

6:54

they are not art critics.

6:57

And watching the judges tiptoe into

7:00

the squishy world of art, where

7:02

right is left and left is right, allows

7:05

us, honestly, a break

7:08

from all the depressing partisan

7:10

politics. And

7:13

possibly a more clear-eyed

7:15

look at how the U.S. Supreme Court

7:18

actually makes decisions.

7:21

Don't get it wrong.

7:49

Yeah,

7:52

I mean... We're

7:55

talking like the size of a hydrogen atom. Little black holes

7:57

everywhere from Radiolab. Wow. Listen

7:59

wherever.

7:59

you find podcasts.

8:27

Warhol's

8:32

transformative meaning puts points

8:34

on the board under factor one of

8:36

the four factor balancing test.

8:38

In practice, maybe less fun. If

8:41

you look at Judge Laval's article on page 1111... Producer

8:44

Alyssa Eads waded into the weeds...

8:47

Test one, two, three. Test one, two, three. ...to

8:49

rescue the fun. One, two, three, four.

8:52

This seems to be recording. You

8:54

can trace the origin story of the Andy Warhol

8:56

case back to this man. My

8:59

name is Pierre Laval. I'm

9:01

a judge of the United States Court of Appeals

9:04

for the Second Circuit. When

9:06

Judge Laval was in law school, at a

9:09

certain school in Boston... At the Harvard Law School,

9:11

everybody told me that copyright

9:13

is the most fun course in the school.

9:16

I should definitely take it in my third year.

9:19

And I thought to myself, that

9:21

would be immature of me. I should choose

9:23

a course that will be useful to me in the future.

9:26

And then it turned out that not too far into

9:28

the future, I became a federal judge...

9:32

With responsibility to decide copyright

9:34

law, and I didn't know anything about copyright

9:36

law.

9:37

Judge Laval should have taken the fun class.

9:40

So, wait, why is copyright fun

9:44

for law students? Right. So, copyright

9:46

is this area of the law where there's a lot of creativity,

9:49

kind of. Because the Constitution doesn't say

9:52

a whole lot about it. I just want to, like, for

9:54

a second, just bear with me. I want to pull

9:56

out, metaphorically, my pocket Constitution,

9:58

but really just going to look it up. article one

10:01

copyright. So

10:03

here it is. Congress can promote

10:05

the progress of science and useful arts

10:08

by securing for limited times to

10:11

authors and inventors the exclusive right

10:13

to their respective writings and

10:15

discoveries.

10:16

Sounds like a blast. Yeah

10:21

so it's a lot of words. Basically

10:23

the Constitution wants to advance arts

10:26

and sciences right for the whole of society

10:29

and the way that it gets there is by saying

10:31

we're gonna protect creators

10:33

from copycats but that protection

10:35

is also limited and

10:37

over the next 200 years judges

10:40

decide it's okay to copy

10:42

sometimes. There are times when stuff

10:45

might be fair to use. Fair

10:47

use is entirely created

10:50

by judges. I mean eventually

10:52

it was adopted into the law

10:55

but in the 80s when LaValle is getting

10:57

his first copyright cases judges

10:59

had been largely improvising

11:01

their answer to what is fair to

11:04

use on an opinion by opinion basis.

11:07

None of those judicial opinions

11:09

ever undertook to tell you

11:11

how do you discern whether

11:14

a use is fair use or not.

11:16

Yeah how are you supposed to tell? Seems

11:19

like...

11:20

Yeah. I

11:22

don't know. So

11:26

judges were essentially deciding from

11:28

the gut and that's that's

11:30

not a good thing for the law.

11:33

LaValle says usually judges

11:35

have a way of avoiding making decisions

11:38

from the gut. When a case comes

11:40

before a judge the judge must

11:43

decide for one side or the other and

11:46

in order to do that in a manner

11:49

that

11:50

tells the world this is being done according

11:52

to law rather than just according

11:54

to how I feel at this particular

11:56

moment the judge has got

11:58

to explain the decision

11:59

in terms of generally applicable

12:02

standards. Generally applicable

12:05

standards. In other words, the

12:07

judges want to be able to say, we're

12:09

not making this stuff up. We got rules.

12:12

This is an inescapable part

12:15

of the judge's job. He says standards

12:18

are the building blocks of judging. I

12:20

mean, it's like an engineer thinking about

12:22

what materials are going to be

12:25

adequate to hold up a bridge

12:27

when trains and cars

12:30

and trucks and so on are crossing

12:32

the bridge.

12:33

A legal standard sturdy

12:35

enough to apply to all different kinds of

12:37

situations, movies, books,

12:39

music, podcasts, that use

12:42

stuff from other places. Laval

12:45

thinks that like engineers, judges

12:47

can stress test a standard

12:49

to make it objective.

12:51

If you don't do that, if you just say, well,

12:53

this seems right to me, you

12:55

have not fulfilled your function and

12:58

there's an increased likelihood that

13:00

the bridge will collapse under bad

13:02

conditions.

13:06

And in cases involving fair use, Laval

13:09

says there was no general standard.

13:12

So he decided to build the bridge

13:14

himself. I undertook to

13:17

at least make steps in

13:20

the direction of outlining what standards

13:23

should be for determining whether something is

13:25

or isn't a fair use.

13:27

He came up with an idea for a new

13:29

standard. Transformative use.

13:32

When might it be okay to copy

13:34

someone else's work? When

13:37

the copy transforms the original.

13:44

In 1990, Pierre Laval writes this

13:46

hugely influential law review article

13:48

essentially saying,

13:52

should seek to communicate something

13:55

very different from what the original

13:57

author was seeking to communicate.

14:00

and that the work should add new

14:02

information, new aesthetics, new

14:05

insights and understandings.

14:07

Which honestly, I don't know, is

14:10

still kind of vague? So

14:12

the thing that's trying to be described as complex

14:15

and it's, I don't claim that

14:17

the word transformative is all you need

14:19

to know to answer all the questions.

14:23

It's a stab in the direction

14:26

of explaining what it

14:28

is about a certain type of copying

14:31

or using of another's work that

14:33

will help you get in the door of fair

14:36

use of permitted copying as

14:38

opposed to prohibited unauthorized

14:41

copying.

14:43

This transformative

14:46

test takes the copyright world

14:48

by storm. This little idea

14:50

in a law review article makes it

14:53

big and finds its way to the

14:55

Supreme Court. Through a case

14:58

about music.

15:03

Okay, so picture this, it's the 1980s, the

15:06

parties are wild.

15:09

The girls was doing what they call twerking

15:11

now, they was just calling the shake dancing back

15:13

then. And there's this little hip hop group

15:16

making a big name for itself and

15:18

that group is Two Live

15:20

Crew. My name

15:22

is David Hobbs, also

15:25

known as DJ Mr. Mix. If

15:28

there's no me, there's no Two

15:30

Live Crew, that's my intro.

15:34

Mr. Mix grew up just outside LA. He

15:37

was always musical. Oh yeah, when I was a kid,

15:40

there was a guy that played the saxophone called

15:42

Junior Walker. He was really dynamic

15:44

and I would see him on TV.

15:49

He learned to play the saxophone when he was a kid,

15:51

sort of mimicking records by ear. I

15:53

would take records from my pops collection

15:56

and bring them back to my room and try

15:58

to figure out the notes of player. along with

16:01

the melodies that I heard on the records.

16:02

He gets to take some music classes in

16:05

school, but instead of turning

16:07

it into a career right away, he

16:09

joins the Air Force.

16:11

And it's in the Air Force that he

16:13

gets introduced to hip-hop. Rock,

16:15

rock, rock. He's stationed in England. Hey,

16:18

hey, hey. And are

16:20

you ready? Hey, hey, hey. Are

16:22

you ready? Are you ready? Are

16:25

you ready?

16:25

The breakdancing group, Rock Steady Crew,

16:28

came to England to

16:31

do an exhibition. And

16:34

I went to one of them. And

16:36

they had a DJ with them.

16:38

And this is the first time Mr. Mick sees

16:41

somebody DJ. And

16:45

he's just, like,

16:45

hooked. When I

16:48

actually seen him do it, and

16:50

I seen one hand was on the record going

16:53

back and forth in

16:55

a scratching motion the same way, like, you would scratch

16:57

your arm. Yeah. Okay, so

16:59

now I get to understand why they call it scratching.

17:05

So he leaves England, the Air Force stations

17:08

him back in California. I

17:10

went and got me two makeshift turntables

17:12

and a makeshift mixer and started

17:14

practicing in the barracks, honing

17:17

my skills.

17:20

Just like when he was a kid with the

17:22

saxophone, listening to his dad's records,

17:25

imitating the stuff that he was hearing, you know, he's

17:27

now taking something and

17:30

making it into his own thing.

17:32

I'll put it to you this way. The

17:34

way that hip hop originated, you

17:37

took a record that people already recognized,

17:43

and you do it your own way. Or

17:46

you take elements from it to make it

17:48

a little more unique based on what it is that

17:50

you did.

17:54

Fast forward, Mr. Mix forms two live crew with some friends,

17:56

and they're blowing up in my... Miami.

18:01

And their music and their shows

18:04

are super raunchy.

18:10

They had this album called As Nasty

18:13

As They Want To Be, which was banned

18:15

by a federal judge for being obscene.

18:18

But their thing was like being

18:20

outrageous. Like, how

18:23

far could you push it?

18:26

So in this spirit of humor, they're

18:28

taking things they think will be recognizable

18:31

and making

18:34

fun of them. And

18:37

in 1989, they land on

18:40

the Roy Orbison song as something

18:42

that

18:45

would be fun to

18:47

rip and mix.

18:49

Girl, you

18:51

know you ain't right. You tell me woman,

18:54

you was out with my boy last night.

18:58

Childish humor. That's what

19:00

we were doing. But it was childish

19:03

humor in a way Roy could be. A

19:05

lot of money was making. But I guess

19:07

their beef was that we didn't get permission

19:10

from them to do it.

19:15

And to no one's surprise,

19:17

they get sued. And

19:19

they end up in the Supreme Court. We'll

19:21

hear argument first this morning on number 92, 1292. And

19:25

the question is, can 2 Live

19:27

Crew's version of Pretty Woman be considered

19:30

fair use

19:31

as a parody? That

19:34

is the purpose of parody, to borrow

19:36

from the original and then to imitate

19:38

and ridicule the original, which

19:40

is what happened in this case.

19:42

The process is taking the roof

19:45

of the record and saying some funny

19:47

stuff based off of what the original

19:50

actually is. So we were making

19:52

a parody, but we didn't really think about it

19:54

in that way. Like that's what we were really doing.

19:57

We now reverse and remand. A

20:00

parody like other comment and criticism

20:03

may claim to be fair use. And

20:05

the Court of Appeals... So Justice David

20:07

Souter writes the opinion, and all

20:09

nine justices sign on to it. He

20:12

says this

20:12

parody is a clear example

20:15

of fair use. And he

20:18

declares, a new standard.

20:20

To make these kinds of decisions, judges are

20:22

supposed to gauge whether, and to what extent,

20:25

a new work is

20:27

transformative. And he

20:29

puts a citation after that.

20:31

LaValle. Well, I was pretty thrilled.

20:34

Why? Well,

20:37

because they took my article and used

20:39

it kind of as a blueprint. This

20:42

was a victory for a two-live crew and

20:44

for Pierre LaValle, who became a giant

20:46

in the fun area of the law, much

20:49

to his surprise. And

20:51

weirdly, it seems to me like Justice

20:54

Souter is taking LaValle

20:57

and sort of remixing him in a way.

21:00

Totally, totally. That is part

21:02

of what judges do. They're adding

21:04

on to each other's work. They're seeing what's come before.

21:07

They're taking things other people have said and putting it

21:09

in new context, writing new stuff.

21:12

And now similar

21:14

cases that come after it are decided

21:17

using LaValle's transformative use

21:20

standard. It becomes the beating

21:23

heart of fair use law.

21:31

Then

21:31

Warhol comes along. Well, then what's

21:33

the difference between a photograph

21:36

and a painting? That's a big difference. There is no

21:38

difference. Yeah, I like photographs

21:40

better.

21:42

Arguably the most famous

21:44

American artist of the last hundred years

21:47

whose signature style is based on

21:49

appropriating and transforming

21:52

other people's images. And

21:54

the question now is, almost 30 years

21:57

after the Supreme Court handed a victory

21:59

to a

21:59

What will

22:02

this particular court make of

22:04

Warhol's work?

22:05

That's after

22:07

the break.

22:31

From WNYC Studios, this is More Perfect.

22:35

I'm Julia Longoria.

22:38

Judges have always had a hard time

22:40

figuring out how to rule on cases

22:43

in the squishy world of

22:45

art. That area

22:47

of the law is dominated by vague

22:49

questions like, is it fair?

22:53

So when one judge, Pierre Laval,

22:55

added the arguably more specific

22:57

question, is it transformative?

23:01

Judges were into it. The

23:03

Supreme Court used it to decide a case

23:05

about a hip-hop parody, and they made

23:07

Laval's transformative standard go

23:10

platinum.

23:12

Which brings us to the Andy Warhol

23:14

case. Here's producer

23:16

Alyssa Eads. So

23:18

it's the very powerful Warhol

23:20

Foundation versus Lynn Goldsmith. In 1981,

23:23

I made a studio portrait of Prince. The

23:28

photo is black and white. It's Prince

23:30

from the waist up, white shirt suspenders.

23:34

He looks sort of vulnerable

23:37

with this really direct stare

23:39

into the camera. And at the time,

23:41

it's still early on in Prince's career,

23:44

so he's this up-and-coming artist.

23:47

Then, a few years later...

23:54

Prince is an icon at

23:56

the top of the charts. Vanity

23:58

Fair wants to feature him in the show.

23:59

in the magazine, and they hire

24:02

Andy Warhol to do a portrait of

24:04

Prince. Now I do some, you

24:08

know, portraits of people. And

24:10

Warhol takes Goldsmith's vulnerable

24:12

black and white photograph, and he

24:15

makes Prince's gaze look stronger,

24:18

almost unshakable. And

24:20

he makes Prince purple, he disembodies his head,

24:23

changes a few things here and there, and Vanity

24:25

Fair runs it.

24:26

They credit Goldsmith for the use of the photo,

24:29

and they pay her $400. So

24:32

far, everything's fine, right? Everyone's been

24:35

paid, everything's fine. Yeah, everything's

24:37

fine. Everything's fine for quite a

24:39

while until 2016.

24:41

There is breaking news from Minnesota. The

24:43

singer, songwriter, and musician known

24:46

as Prince has died.

24:48

There's all these outpourings of remembrances.

24:51

A great musician, a great producer,

24:54

great songwriter. Possibly the most talented,

24:57

charismatic, entertaining, influential,

24:59

and... Lynn Goldsmith is seeing all this

25:01

coverage, just like anybody else, and

25:04

she comes across the cover of a magazine

25:07

about Prince. And I look at it and I

25:09

think, that's really familiar looking.

25:12

And I looked in my

25:14

files, because I never forget

25:17

someone's eyes.

25:18

It's another Warhol silkscreen.

25:21

This one is orange, but she can tell

25:24

it's still her photograph of Prince. So

25:27

she sees this and starts to say, what

25:31

is that? I

25:33

never saw that before.

25:36

By this point, Andy Warhol had passed

25:38

away. So I called up the

25:40

Warhol Foundation and

25:43

I said, you know, I've discovered

25:45

this. Here's the original

25:48

invoice. Here's the original picture.

25:51

And I'd like to talk to you about

25:53

it.

25:54

One thing leads to another.

25:55

We'll hear argument first

25:58

this morning in case number... 21, 869, Andy Warhol,

26:00

found it. And

26:03

it ends up at the Supreme Court. Mr. Chief Justice,

26:05

and may it please the Court. The Warhol

26:07

lawyer goes first. The stakes for

26:09

artistic expression in this case are high.

26:12

A ruling for Goldsmith would strip protection,

26:15

not just from this print series, but

26:17

from countless works of modern and contemporary

26:19

art.

26:19

He says the Court should be doing the

26:21

same thing they did in the Two-Life Crew case.

26:24

If you look at Judge Laval's article on page 1111... And

26:27

he says Warhol, transformation?

26:30

He passed that test. He transformed

26:33

Prince into an icon. A

26:35

picture of Prince that shows him as the exemplar

26:37

of sort of the dehumanizing effects of celebrity culture

26:40

in America. But

26:41

the justices push back on this

26:44

whole idea. Is that enough

26:46

of a transformation? Under Laval's

26:48

test, how can judges tell

26:50

if the meaning or message has been transformed

26:53

enough? How can a court

26:55

even tell what the meaning or message of a piece

26:58

of art is?

26:59

Should it receive

27:01

testimony by the photographer

27:03

and the artist that you do call

27:06

art critics as experts? How

27:08

does the Court go about doing this?

27:10

Justice Alito suggests the Court can't

27:12

really do the work of art critics.

27:15

And then you hear Chief Justice Roberts

27:18

start to do what the Supreme Court does

27:20

in almost every case. Let's

27:23

suppose that you put a little smile

27:25

on his face and say this is a new

27:27

message. The message is Prince

27:30

can be happy, Prince should be happy.

27:31

He begins to throw out hypotheticals.

27:35

And they use these hypotheticals to stress-test

27:38

the transformative standard.

27:41

Laval's Bridge. Supposing

27:44

that we subject this bridge to

27:47

predictable

27:49

serious stresses, stresses of

27:51

tornado force winds, trains

27:54

loaded with heavy cargo, collision

27:57

happening on the bridge, and use

27:59

our...

27:59

mathematical tests

28:02

and whatever else they are to see

28:04

whether is it going to hold up under those

28:06

circumstances.

28:09

— If you didn't know this is what the

28:11

justices do... — Let's say somebody

28:14

uses a different color. — It might sound

28:16

like they're just going off the rails.

28:19

Here's Clarence Thomas. — Let's say

28:22

that I'm both a Prince fan,

28:24

which I was in the 80s, and...

28:28

— No longer. — Well... — Well...

28:35

— So... — Only

28:40

on Thursday night. — But

28:43

let's say that I'm also a Syracuse

28:46

fan.

28:47

— And he's like, what if I make a giant

28:49

orange Prince head poster for

28:51

a Syracuse game? — And

28:54

I'm waving it during the game with a big

28:56

Prince face on it. Go orange. — Go

28:59

orange. Is that transformative?

29:02

— If a work is derivative. — Then

29:05

Amy Coney Barrett brings up Lord of the Rings.

29:08

— Lord of the Rings, you know, book to movie.

29:11

— I don't think that Lord of

29:13

the Rings has a fundamentally different meaning

29:15

or message, but I would have to probably... — The movie?

29:17

— Seems like she's a fan. — But I would

29:19

probably have to learn more and read the books and see

29:21

the movies to give you a definitive judgment on that.

29:24

And I recognize reasonable people could probably disagree

29:26

on that.

29:27

— It goes on like that for a while until...

29:31

— Thank you, counsel. — Thank you. — Ms.

29:33

Blatt. — Thank you, Mr.

29:35

Chief Justice, and may it please the court. — Goldsmith's

29:38

lawyer gets up to speak. — If Petitioner's

29:40

test prevails, copyrights will

29:42

be at the mercy of copycats.

29:45

— And she argues the whole new meaning

29:47

and message part of the transformative test is

29:50

kind of bullshit. — Anyone could turn

29:52

Darth Vader into a hero or spin

29:55

off all in the family into the Jeffersons. — Without

29:58

paying the creators a dime.

30:00

She's like, if anyone can take something

30:02

and make a tiny little change and call it theirs,

30:05

then basically there's no copyright

30:07

protection for anything. Your

30:10

test lies madness in

30:12

the way of almost every photograph to

30:14

a silk screen or a lithograph or any editing.

30:17

I guarantee the airbrush pictures of me look

30:19

better than the real pictures of me, and they have a very

30:21

different meaning and message to me.

30:24

John Roberts is like, isn't Warhol

30:27

doing something bigger? It's

30:29

not just that Warhol has a different style.

30:31

It's a different purpose. One is to commentary

30:34

on modern society. The other is to show

30:37

what Prince looks like.

30:38

But Goldsmith's lawyer is

30:40

like, you're missing the point. So

30:43

what I think all this goes wrong is you're just

30:45

focusing on meaning and message

30:47

independent of the underlying use. In

30:49

other words, this isn't about aesthetics.

30:53

This is about money and

30:55

the market. Even Warhol followed

30:57

the rules. And he did not take a picture himself.

31:00

He paid the photographer. His

31:02

foundation just failed to do so here.

31:12

If you

31:12

could just summarize briefly, because this

31:14

was a big case, a David versus

31:16

Goliath case. This is a huge,

31:19

huge copyright case that we'll

31:20

have. After the decision came out, Lynn

31:22

Goldsmith went on the radio to talk about

31:24

it. The reason I risked

31:27

everything I have was

31:29

I wanted to make sure as

31:32

best I could that the copyright

31:34

law would be one to protect all artists.

31:38

The court rules seven to two in

31:40

Goldsmith's favor. But what's

31:43

funny about it is they did it in

31:45

kind of a very Warhol way.

31:48

Because I don't know. I never call my stuff art.

31:50

See, it's just work. Warhol's

31:56

whole artistic project is

31:58

arguably a commentary. on

32:00

American consumerism. The way

32:03

everything is a commodity. Campbell's

32:05

soup cans, Marilyn Monroe, Prince,

32:09

even Warhol's own art. And

32:12

the irony is, the justices kind of

32:15

agree with him here.

32:16

They treat his work like a commodity

32:19

and reason that the Goldsmith photograph

32:22

and the Warhol silk screen are both licensed

32:24

to magazines to go with articles about Prince.

32:27

So they're serving the same purpose

32:29

in the same market. And that means

32:32

no transformation. The Warhol Foundation

32:35

was wrong.

32:38

So what about the question we

32:40

started with? Like in making the photo

32:42

orange and bold, did

32:45

Warhol transform the meaning

32:47

of the photograph? Like aesthetically?

32:49

Right, so the court kind of

32:51

put that aside. They're like, we're

32:53

not art critics. We're not hearing from art critics. We

32:56

don't want to focus on the meaning or

32:58

message of a thing so much. We want to

33:00

focus on how it's being used. So

33:03

in this way, they transformed

33:06

their own transformative test.

33:10

And the reason why this technicality

33:12

is interesting to me is the

33:15

Supreme Court had created standards

33:17

for itself, a sturdy bridge,

33:20

and then it just kind of changed the

33:22

rules. And they're

33:24

changing the rules based on their own

33:27

understandings of the law and their own

33:29

preferences, their own biases, their

33:31

own interests. So

33:33

if art is in the eye of the beholder, isn't

33:36

the law too? No, no, no,

33:39

no.

33:41

Judge LaValle. It is definitely not

33:44

in the eyes of the beholder. The beholder

33:47

doesn't get to decide what the law

33:49

is and the fact that different

33:52

people can believe that different cases

33:54

should come out different ways doesn't

33:57

mean that

33:58

there's no law. and that

34:00

everybody is just whatever anyone may think

34:03

is what the law is. That's not what the law is.

34:06

That's not what the law is. That's

34:09

not what the law is.

34:12

That's not what the law is.

34:17

That's not what

34:19

the law

34:19

is. To me, it's not a legal issue.

34:22

It's a taste issue. We

34:24

went to art critic Jerry Saltz after

34:27

the decision came down. He's all

34:29

for artists getting paid, but he didn't

34:31

like the decision. The Andy Warhol

34:34

case, for me, curtails

34:37

art in an extremely

34:40

dramatic way.

34:45

That is basically what the dissent says,

34:47

too. Justice Elena Kagan

34:49

writes, it will stifle creativity

34:52

of every sort.

34:54

Artists will hesitate to remix

34:57

things, to get inspired. They

34:59

won't make new art. She

35:02

thinks the decision will undermine the very

35:04

thing the law was meant to do,

35:07

advance the arts.

35:09

And then Kagan goes after

35:12

the majority.

35:13

She's essentially accusing the

35:15

majority of being Philistines

35:19

who don't understand high

35:22

art. This is one of our legal

35:24

advisors, Jeannie Stupkerson. And

35:27

she even says things like, this

35:29

is art history 101, that

35:32

they need to go back to school. And

35:35

in response, Justice Sonia Sotomayor,

35:38

writing for the majority, hits right

35:40

back.

35:41

Sotomayor includes multiple

35:44

footnotes. Long footnotes devoted

35:48

to dissing the dissent. She

35:50

says the dissent is a series of

35:52

misstatements and exaggerations from

35:54

the dissent's very first sentence

35:57

to its very last.

36:00

Um, that's not normal. And

36:02

some commentators have said

36:05

now at least we

36:07

don't all have to pretend that everyone loves each

36:09

other. But I don't know.

36:11

Jeannie says, compared to the past,

36:14

this is a big shift in the court. The

36:17

idea that even if you disagree with the other side, you

36:19

go to the mats on the substance, you don't

36:22

go to the mats by engaging in personal

36:23

attacks. I think that that era

36:26

is drawing to a close, and

36:28

we're seeing it very publicly in a Supreme Court

36:30

opinion. In

36:38

the Warhol case, the passionate

36:41

personal disagreement that two Supreme

36:43

Court justices are having out in

36:45

the open is kind of wild.

36:47

It

36:48

kind of reminds you of two people disagreeing

36:51

over whether a movie is any good or

36:53

loving the song of the summer that

36:55

someone else can't stand. Even

36:59

though the judges say the law is nothing

37:01

like art, think about the way art

37:03

criticism often sounds. The

37:05

late capitalist, post-structuralist,

37:08

post-Marxian dialectic

37:10

of the haptic... They both have their jargon.

37:12

Factor three, which has to do with the amount

37:15

of substantiality of the portion you...

37:17

Can you tell me, like, what do you think makes a good

37:19

art critic? History

37:22

that's willing to stay completely

37:25

open. You don't decide

37:28

beforehand what you're going to like.

37:30

You don't say things like, I don't like

37:32

painting. Because, of course,

37:35

you're going to see a painting eventually

37:37

that you are probably going to like.

37:40

They're both supposed to stay open,

37:43

unbiased. So

37:46

the best art criticism is

37:48

democratic. It's a conversation. The

37:51

best is everybody talking.

37:55

Everybody's putting in, everybody

37:57

voting, everybody trying.

38:00

to convince the other, and

38:03

allowing as many stories

38:05

as possible. What

38:08

do justices do when they try

38:10

and interpret the law? The

38:19

first time I ever stepped into the

38:21

Supreme Court, it kind of felt like

38:23

church. Like the justices

38:26

were these servants, trying their best

38:28

to answer to a higher power

38:30

of sorts.

38:33

Maybe that's a little bit self-serious, but

38:36

at least it seemed to me like they were reverent

38:39

in front of the incredible stakes,

38:42

the lives of the people in

38:45

their hands.

38:48

If the law is not like church, is

38:51

it math? Like engineering

38:53

a bridge, making sturdy,

38:56

objective legal standards. Or

38:59

maybe it

39:00

is like an art form. Impressionistic,

39:04

ever-changing, imperfect.

39:06

In other words, you

39:08

have no vision of the past, no vision

39:10

of the future trend, you're just doing whatever you

39:12

feel like.

39:13

Well,

39:18

yeah.

39:22

And that's it for

39:25

this season

39:28

of More Perfect.

39:32

We're

39:36

coming back with new episodes later this year,

39:38

so if you have questions about the Supreme Court, about

39:41

the law in general, we want to hear

39:43

from you. Go to moreperfectpodcast.org

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and send us a voice memo.

39:49

More Perfect is a production of WNYC Studios.

39:51

This episode was

39:53

produced by Whitney Jones and Alyssa Eades with

39:56

help from Gabrielle Burbay.

39:59

It was edited by Julia Longoria and

40:02

me, Jenny Lawton. Backcheck by

40:04

Naomi Sharp. Special thanks to

40:06

Sam Moyn, Jeff Guo, Andy Lansett,

40:09

Amy Adler, Alison Orlarson, David

40:11

Posen, Jane Ginsberg, and Hank Willis

40:13

Thomas. The more perfect team also

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includes Emily Botin, Emily Seiner,

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This is the last episode of the season, and

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41:00

of our hearts.

41:24

Nessa

41:26

Servini, Tara Sonnen, Dan

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41:31

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Golos. And thank you

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for listening.