At the Intersection of Libraries and Law: Ketanji Brown-Jackson, Prince, and Andy Warhol in the Supreme Court

This article was written before the oral argument in the case and has been edited to reflect Justice Thomas’s hypothetical.

Until recently, I was the Copyright and Information Policy Consultant at Duke University Libraries. This role required me to understand and explain how United States law – particularly the federal Copyright Act statute, Section 17 of the United States Code – applies to libraries, archives, and their staff.

Working in both libraries and law, I found the confirmation of Ketanji Brown Jackson to the United States Supreme Court to be particularly meaningful. Like many women of color, Justice Jackson also experienced the extra work required in the workforce, such as proper spelling and pronunciation of your name at the ready. Having gained a seat at the table, she will influence copyright law – and thus creators and cultural heritage institutions – in one of her first cases on the bench. The court heard the oral arguments in Andy Warhol Foundation for the Visual Arts, Inc. v. Lynn Goldsmith (abbreviated here as “AWF v. Goldsmith”), and will make a decision later in the term. The infringement case involves the rights of a photographer, an artist, and the altered likeness of the iconic musician.

This article provides some background and context which is especially relevant to women of color and other workers in libraries and archives.

1. Ask: When can an artist remix someone else’s work without permission?

In 1984, Prince was transitioning from Black radio to broader pop superstardom. Andy Warhol was commissioned by Vanity Fair to create one of his signature art pieces to accompany an article about the young musician. Warhol used a photograph taken by Lynn Goldsmith as an “artist’s reference,” creating an altered work of appropriation art recognizable as a Warhol. Pursuant to the United States Copyright Act (found in Section 17 of the United States Code), the photographer owns the copyright interest in the photograph, which is an “original work[s] of authorship.” The owner can license her rights to others in whole or in part, allowing them to reuse the original work. In the arts, this is often the basis of appropriation art and other forms of “remixing.”

Without paying for an additional license, Warhol also created fifteen additional silkscreen prints and pencil illustrations derived from the same photograph (the “Prince Series”). After Prince’s death in 2016, Goldsmith sued Andy Warhol's estate for copyright infringement. The case, Andy Warhol Foundation for the Visual Arts, Inc. v. Lynn Goldsmith, was heard by the Court on October 12, and the outcome may turn on a niche legal term, “transformativeness.”

2. Know: The Court’s Ruling Could Rely on the “Transformativeness” of Remixing

When Vanity Fair published the Prince article, it was a recently-revived high-end magazine, Andy Warhol was an established “appropriation” artist, and musical “remixing” was widespread but problematic in 1984. Teenagers routinely copied their record albums; I still own the alt-rock/rap mix that my younger brother made by taping Whodini on a cassette that he “found” – my homemade copy of a record album by alt-rockers REM.) Libraries and archives may collect mixtapes, Harry Potter fanfiction, Alice Randall’s novel The Wind Done Gone (a retelling of Gone With the Wind from the point of view of an enslaved woman). Justice Brown Jackson may own, read, or create such works herself. Remixing music, creating new stories in an existing fictional universe, and parodying a work of literature all produce “derivative works” that satisfy the legal “Fair Use” test as it is currently understood. This term, she will decide whether the “Prince Series” created by Warhol is sufficiently “transformative” – to merit the same treatment.

The Supreme Court will be asked to address the “transformative” reuse of copyrighted works. The interpretation of this niche legal term may affect libraries and creatives who rely on “remixing” someone else’s copyrighted work. This is likely to revisit legal concepts addressed in 1994 when the issue of whether rap group 2 Live Crew had made a Fair Use “parody” of a popular song by Roy Orbison was decided by a Court that included only one woman and one person of color, Justice Clarence Thomas. It ruled in the affirmative, thus paving the way for modern hip-hop, and generating decades of litigation over the definition of infringing uses and fair uses in works of art, music, and computer programs.

Library and archives workers know that original works are protected by copyright. They work closely with collections of books, movies, art, and other materials that are licensed, purchased, donated, or created in-house. Every day, library/archives staff navigate the fact that their institution may have ownership rights in the book, digital object, artwork, or recording, while the copyright owner may not have granted the right to retain, revise, remix, or redistribute the work.

Despite the extra protection for libraries and archives that are found in the Copyright Act, these institutions frequently utilize “Fair Use” of someone else’s work without permission or payment. Viewed by some as a right, and by others as a defense to infringement claims, Fair Use allows “remixing” as long as the process and the result balance fairly. The Supreme Court is poised to address the meaning of “transformativeness.” Many contend that transformativeness encompasses the fact that we look at both what the remixer is doing (“purpose”) and how they are remixing (“character”), as well as what they are using, how much of it is being used, and whether they are taking away the market for this underlying work (“market substitution”). The Supreme Court decision is likely to determine the issue of the proper legal test for transformativeness. Clarifying the test, and defining the creative spark of originality could have profound implications for individual creatives and cultural heritage institutions which collect their work

3. Know: Intellectual “Creativity” vs “Labor” is a BIPOC Issue

The dichotomy between “creative” work and “labor” is especially problematic for women and for those of us who are descended from formerly-enslaved people. Prince is not the first African-American involved in a copyright controversy. Phillis Wheatley, a formerly-enslaved 18th-century poet of African descent was publicly denied credit for the intellectual spark that would make her poetry worthy of copyright ownership by none other than Thomas Jefferson.

While the formerly-enslaved abolitionist Sojourner Truth was savvy enough to register copyright in the visiting cards bearing her likeness, she was not listed as the author of her own autobiography. After research and careful deliberation, Duke’s Rubenstein Library staff “updated” both the Library of Congress and OCLC bibliographic records for The Narrative of Sojourner Truth to “giv[e] authorship to Truth and editorship to” a white collaborator who was previously listed as author in the catalog records. As experts in assessing their collections, library and archives staff will not just see, but be able to deeply appreciate, the discussions of originality and creativity as the case unfolds.

4. Evaluate: Primary Sources and Commentary

As experts in information and research, library and archives staff may be interested in reading the text of the Copyright Act (found in all versions of the United States Code); listening to live oral arguments via the Supreme Court’s website, or reading the amicus briefs in the court documents. These “friend of the court” briefs, written by advocates from all ends of the spectrum, including libraries, the entertainment industry, and even sci-fi cosplayers. These “friend of the court” briefs attempt to educate the Court on various aspects of the law that it will apply in this case.

Primary research is invaluable in evaluating the reporting and analysis of the reporting by news organizations and as discussed in social media. SCOTUSblog, written by legal experts (providing statistics, interpretive articles, and easily-accessed links to court documents), presents the case differently from ARTnews, for example).

The discerning reader will also question Prince’s relationship to and profit from the “Prince Series.” While his contribution to this Supreme Court copyright case may be as subject and not artist, he nonetheless stands on the shoulders of 2 Live Crew, Phillis Wheatley, Sojourner Truth, and unnamed artists of color.

In the years after Goldsmith and Warhol’s artworks were made, Prince produced a substantial body of original work that “transformed” popular music. He also briefly adopted the unpronounceable “Love Symbol” as his stage name during an intellectual property dispute with his label. As revealed in oral argument, even Justice Clarence Thomas was a fan of the Artist. As Dave Chapelle famously said, “Game, Blouses.”

Resources

Anonymous (2022) SCOTUSBLOG, Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith [blog post] Retrieved from https://www.scotusblog.com/case-files/cases/andy-warhol-foundation-for-the-visual-arts-inc-v-goldsmith/

Janecki, J. and Reno, L. (2/14/2018) Sojourner Truth’s Narrative [blog post] Retrieved from https://blogs.library.duke.edu/rubenstein/2018/02/14/sojourner-truths-narrative/

Gormley, H. (2/8/2020) Sojourner Truth and the Power of Copyright Registration [blog post] Retrieved from https://blogs.loc.gov/copyright/2020/12/sojourner-truth-and-the-power-of-copyright-registration/