Justice Kagan accuses fellow liberal Justice Sotomayor of hypocrisy in Warhol decision in pointed dissent

Justice Elena Kagan took aim at her colleagues in her scathing dissent of the Supreme Court’s Thursday ruling against artists in a copyright case involving a Prince portrait by Andy Warhol, accusing them of hypocrisy and stifling creativity, all while quoting the beloved Julie Andrews film “The Sound of Music.”

In the high-profile case, the Court decided 7-2 against the Andy Warhol Foundation, concluding that the legendary artist had infringed on Lynn Goldsmith’s copyright of her image of Prince by making an orange silk screen print of the shot. Warhol’s print was eventually licensed for $10,000 to media giant Condé Nast and featured on the cover of a magazine, and the print’s commercial use was the basis of the copyright claim.

Lawyers for the Warhol Foundation and the dissenting justices, Kagan and Chief Justice John Roberts, argued that the artist’s interpretation of the image changed it sufficiently to be recognized as “fair use,” and so not subject to copyright claims. In an opinion filed by liberal Justice Sonia Sotomayor, the majority disagreed.

“The use of a copyrighted work may nevertheless be fair if, among other things, the user has a purpose and character that is sufficiently distinct from the original,” Sotomayor wrote in her opinion for the majority. “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.”

Kagan and Roberts agreed with the majority that the Warhol print was not significantly different from Goldsmith’s photograph, citing the social commentary ascribed to Warhol’s works and the labor-intensive process of screen printing as defining factors of the work.

“There is precious little evidence in today’s opinion that the majority has actually looked at these images, much less that it has engaged with expert views of their aesthetics and meaning,” Kagan wrote.

According to Kagan, the majority claimed that the famous artist Warhol may have cropped, flattened, traced, and colored the photo. Instead, she maintained, Warhol did what artists do: he used available materials to make his own, unique works.

“The majority attempts to minimize the visual dissimilarities between Warhol’s silkscreen and Goldsmith’s photograph by rotating the former image and then superimposing it on the latter one,” Kagan wrote. “But the majority is trying too hard: Its manipulated picture in fact reveals the significance of the cropping and facial reorientation that went into Warhol’s image.”

Quoting the 1965 film “The Sound of Music,” Kagan wrote: “‘Nothing comes from nothing,’ the dissent observes, ‘nothing ever could.’ So somewhere in the copyright statute, there must be an ‘escape valve’ to create something good.”

“The majority claims not to be embarrassed by this embarrassing fact because the specific reference was to his Soup Cans, rather than his celebrity images,” Kagan wrote. “But drawing a distinction between a ‘commentary on consumerism’ — which is how the majority describes his soup canvases — and a commentary on celebrity culture, i.e., the turning of people into consumption items, is slicing the baloney pretty thin.”