The prince of prints and his prints of Prince

0:00This message comes from Capital One with the Venture X-Card. Earn unlimited double miles, a$300 annual Capital One travel credit, and access to airport lounges. Capital One. What's in your wallet? Terms apply. Details at CapitalOne.com. This is Planet Money from NPR. Today's story is essentially about these two images. Yeah, so one of the images is a photograph of Prince. Prince, as in the musician, the cultural icon, the guy formerly known as a symbol.

0:43And this photo of him was taken by celebrity photographer Lynn Goldsmith in 1981. It's a black and white portrait, and Prince is staring straight into the camera. So that's image number one. Image number two, someone has taken that same black and white photo of Prince and they've colored it orange. This is, unmistakably, the work of the artist Andy Warhol. Well, I don't know. I never call my stuff art. See, it's just work. Andy Warhol of Campbell's Soup fame, the guy who did all those colorful portraits of Marilyn Monroe. Yeah, and one of the big questions is, well, does Andy Warhol owe Lynn Goldsmith any money for taking her photo of Prince to make his art?

1:28Like, does any of that count as stealing? That is a really tricky question. Right. On the one hand, the Constitution is like, we need a system of copyright. If someone writes a book or snaps a photo or makes a painting, they should be able to make a profit from it. Other people can't just steal or copy their work. But on the other hand, creative work always involves a little bit of borrowing, right? A little bit of remixing, a little bit of retweeting. That's just called inspiration, right? Exactly. So copyright law has to strike this very tricky balance. Too strict and you'll stifle creativity.

2:09Too loose and you could destroy the market for creative work. It is like this impossible dilemma between creativity on one hand and commerce on the other. But a few months ago, the Supreme Court needed to come up with an answer. Hello and welcome to Planet Money. I'm Jeff Guo. And I'm Julia Longoria. And Julia, you are the host of one of our favorite podcasts. It's called More Perfect from WNYC Studios. It's where you dive into all the decisions and personalities of the Supreme Court. And today, you have brought us an episode from your latest season. That's right. It is the story of the Andy Warhol case this past term and how the Supreme Court solves these complicated questions about when copying someone's work is fair and when is it stealing.

2:58It's about art. It's about economics and this impossible dilemma of copyright law.

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4:56This idea that some copying is okay is called fair use. But for a long time, the meaning of fair was kind of vague. There are these factors that courts were supposed to look at, like how the work was being copied, for what purpose, and whether the copying would hurt the market for the original work. That last one about the market harms, that's a really important one. It was once maybe even the most important factor. But more perfect producer Alyssa Eads. Test one, two, three. Test one, two, three. All right. All right. talked to one person whose ideas shifted how courts thought about the delicate copyright balance.

5:37One, two, three, four. This seems to be recording. You can trace the origin story of the Andy Warhol case back to this man. My name is Pierre LaValle. I'm a judge of the United States Court of Appeals for the Second Circuit. When Judge LaValle was in law school. At the Harvard Law School, everybody told me that copyright is the most fun course in the school. I should definitely take it in my third year. And I thought to myself, that would be immature of me. I should choose a course that will be useful to me in the future. And then it turned out that not too far into the future, I became a federal judge with responsibility to decide copyright law, and I didn't know anything about copyright law.

6:22Judge LaValle should have taken the fun class. So wait, why is copyright fun for law students? Right. So copyright is this area of the law where there's a lot of creativity, kind of, because the Constitution doesn't say a whole lot about it. I just want to, like, for a second, just bear with me. I want to pull out metaphorically my pocket Constitution, but really just going to look it up. Article 1, copyright. So here it is. Congress can promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

7:01Sounds like a blast. Yeah, so it's a lot of words. Basically, the Constitution wants to advance arts and sciences, right? For the whole of society. And the way that it gets there is by saying, we're going to protect creators from copycats. But that protection is also limited. And over the next 200 years, judges decide it's okay to copy sometimes. There are times when stuff might be fair to use. Fair use is entirely created by judges. I mean, eventually it was adopted into the law. But in the 80s, when Laval is getting his first copyright cases, judges had been largely improvising their answer to what is fair to use on an opinion-by-opinion basis.

7:51None of those judicial opinions ever undertook to tell you, how do you discern whether a use is fair use or not? Yeah, how are you supposed to tell? Yeah. I don't know. So Laval came up with an idea for a new standard. Transformative use. When might it be okay to copy someone else's work? When the copy transforms the original. In 1990, Pierre Laval writes this hugely influential law review article, essentially saying, to be transformative, a piece of art. It should seek to communicate something very different from what the original author was seeking to communicate. And that the work should add new information, new aesthetics, new insights and understandings.

8:49Which honestly, I don't know, is still kind of vague. So the thing that's trying to be described is complex. And it's, I don't claim that the word transformative is all you need to know to answer all the questions. It's a stab in the direction of explaining what it is about a certain type of copying or using of another's work that will help you get in the door of fair use, of permitted copying, as opposed to prohibited, unauthorized copying. This transformative test takes the copyright world by storm. This little idea in a law review article makes it big and finds its way to the Supreme Court through a case about music.

9:45Okay, so picture this. It's the 1980s. The parties are wild. The girls was doing what they call twerking now. They were just calling the shake dancing back then. And there's this little hip-hop group making a big name for itself, and that group is Two Live Crew. My name is David Hobbs, also known as DJ Mr. Mix. If there's no me, there's no Two Live Crew. That's my intro. Mr. Mix grew up just outside L.A. He was always musical. Yeah, when I was a kid, there was a guy that played the saxophone called Junior Walker. He was really dynamic, and I would see him on TV. He learned to play the saxophone when he was a kid, sort of mimicking records by ear.

10:35I would take records from my pop's collection and bring them back to my room and try to figure out the notes or play along with, you know, the melodies that I heard on the record. He gets to take some music classes in school, but instead of turning it into a career right away, he joins the Air Force. And it's in the Air Force that he gets introduced to hip-hop. He's stationed in England. And

11:07The breakdancing group Rocksteady Crew came to England to do an exhibition. And I went to one of them. And they had a DJ with them. And this is the first time Mr. Mix sees somebody DJ. And he's just, like, hooked. When I actually seen him do it, and I seen one hand was on the record going back and forth, you know, in a scratcher mode, in the same way, like, you would scratch your arm. Yeah. Okay, so now I get to understand why they call it scratch.

11:48So he leaves England. The Air Force stations him back. in California. I went and got me two makeshift turntables and a makeshift mixer and started practicing in the barracks, honing my skills. Just like when he was a kid with the saxophone, listening to his dad's records, imitating the stuff that he was hearing, you know, he's now taking something and making it into his own thing. I'll put it to you this way. The way that hip-hop originated, you took a record that people already recognize. And you do it your own way. Or you take elements from it to make it a little more unique based on what it is that you did.

12:36Fast forward, Mr. Mix forms 2 Live Crew with some friends, and they're blowing up in Miami. And their music and their shows are super raunchy.

12:52They had this album called As Nasty As They Want To Be, which was banned by a federal judge for being obscene. But their thing was like being outrageous. Like, how far could you push it? So in this spirit of humor, they're taking things they think will be recognizable and making fun of them. And in 1989, they land on the Roy Orbison song as something that would be fun to rip and mix. Pretty woman. Girl, you know you ain't right. Pretty woman. You was out with my boy last night. Pretty woman. You know, childish humor. That's what we were doing. But it was childish humor in a way where it could be a lot of money was made.

13:49But I guess their beef was that we didn't get permission from them to do it. Pretty woman. And to no one's surprise, they get sued. And they end up in the Supreme Court. We'll hear argument first this morning at number 92, 1292. And the question is, can 2 Live Crew's version of Pretty Woman be considered fair use as a parody? That is the purpose of parody, to borrow from the original and then to imitate and ridicule the original, which is what happened in this case. The thought process is taking the groove of the record and saying some funny stuff based off of what the original actually is. So we were making a parody, but we didn't really think about it in that way.

14:37Like, that's what we were really doing. We now reverse and remand. A parody, like other comment and criticism, may claim to be fair use. So Justice David Souter writes the opinion, and all nine justices sign on to it. He says, this parody is a clear example of fair use. And he declares, a new standard. To make these kinds of decisions, judges are supposed to gauge whether and to what extent a new work is transformative. And he puts a citation after that. LaValle. Well, I was pretty thrilled. Why? Well, because they took my article and used it kind of as a blueprint. This was a victory for Two Live Crew and for Pierre LaValle, who became a giant in the fun area of the law, much to his surprise.

15:33And weirdly, it seems to me like Justice Souter is taking LaValle and sort of remixing him in a way. Totally, totally. That is part of what judges do. They're adding on to each other's work. They're seeing what's come before. They're taking things other people have said and putting it in new context, writing new stuff. And now similar cases that come after it are decided using Laval's transformative use standard. It becomes the beating heart of fair use law. Some legal scholars are worried it's become more important than that other fair use factor about whether you're harming the market for the work that you're copying.

16:21Then Warhol comes along. Well, then what's the difference between a photograph and a painting? That's a big difference. There is no difference. Yeah, no, I like photographs better. Arguably the most famous American artist of the last hundred years, whose signature style is based on appropriating and transforming other people's images. And the question now is, almost 30 years after the Supreme Court handed a victory to a Pretty Woman parody, What will this particular court make of Warhol's work?

17:00That's after the break.

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18:53Judges have always had a hard time figuring out how to rule on cases in the squishy world of art. That area of the law is dominated by vague questions like, is it fair? So when one judge, Pierre Laval, added the arguably more specific question, is it transformative? Judges were into it. The Supreme Court used it to decide a case about a hip-hop parody, and they made Laval's transformative standard go platinum. Which brings us to the Andy Warhol case. Yeah, so it's the very powerful Warhol Foundation versus Lynn Goldsmith. In 1981, I made a studio portrait of Prince. The photo is black and white.

19:42It's Prince from the waist up, white shirt, suspenders. He looks sort of vulnerable with this really direct stare into the camera. And at the time, it's still early on in Prince's career, so he's this up-and-coming artist. Then a few years later...

20:06Prince is an icon at the top of the charts. Vanity Fair wants to feature him in the magazine, and they hire Andy Warhol to do a portrait of Prince. Now I do some, you know, portraits of people. And Warhol takes Goldsmith's vulnerable black-and-white photograph, and he makes Prince's gaze look stronger. Almost unshakable. And he makes Prince purple, He disembodies his head, changes a few things here and there, and Vanity Fair runs it. They credit Goldsmith for the use of the photo, and they pay her$400. So far, everything's fine, right? Everyone's been paid. Everything's fine. Yeah, everything's fine.

20:51Everything's fine for quite a while, until 2016. There is breaking news from Minnesota. The singer, songwriter, and musician known as Prince has died. There's all these outpourings of remembrances. A great musician, a great producer, great songwriter. Possibly the most talented, charismatic, entertaining, influential. Lynn Goldsmith is seeing all this coverage, just like anybody else. And she comes across the cover of a magazine about Prince. And I look at it and I think, that's really familiar looking. And I looked in my files because I never forget someone's eyes. It's another Warhol silkscreen.

21:33This one is orange, but she can tell it's still her photograph of Prince. So she sees this and starts to say, what is that? I never saw that before. By this point, Andy Warhol had passed away. So I called up the Warhol Foundation and I said, you know, I've discovered this. Here's the original invoice. Here's the original picture. And I'd like to talk to you about it. One thing leads to another. We'll hear argument first this morning in case number 21869, Andy Warhol Foundation. And it ends up at the Supreme Court. Mr. Chief Justice, and may it please the court. The Warhol lawyer goes first. The stakes for artistic expression in this case are high.

22:24A ruling for Goldsmith would strip protection not just from this Prince series, but from countless works of modern and contemporary art. He says the court should be doing the same thing they did in the Two Life Crew case. If you look at Judge LaValle's article at page 1111... And he says Warhol? Transformation? He passed that test. He transformed Prince into an icon. A picture of Prince that shows him as the exemplar of sort of the dehumanizing effects of celebrity culture in America. But the justices push back on this whole idea. Is that enough of a transformation? Under LaValle's test, how can judges tell if the meaning or message has been transformed enough?

23:07How can a court even tell what the meaning or message of a piece of art is? Should it receive testimony by the photographer and the artist? Do you call art critics as experts? How does the court go about doing this? Justice Alito suggests the court can't really do the work of art critics. And then you hear Chief Justice Roberts start to do what the Supreme Court does in almost every case. Let's suppose that you put a little smile on his face and say this is a new message. The message is, Prince can be happy, Prince should be happy. He begins to throw out hypotheticals. And they use these hypotheticals to stress test the transformative standard.

23:55If you didn't know this is what the justices do... Let's say somebody uses a different color. It might sound like they're just going off the rails. Here's Clarence Thomas. Let's say that I'm both a Prince fan. which I was in the 80s. And... No longer? Well.

24:25So, only on Thursday night. But let's say that I'm also a Syracuse fan. And he's like, what if I make a giant orange Prince head poster for a Syracuse game? And I'm waving it during the game with a big prince face on it. Go orange. Go orange. Is that transformative? If a work is derivative. Then Amy Coney Barrett brings up Lord of the Rings. Lord of the Rings, you know, book to movie. I don't think that Lord of the Rings has a fundamentally different meaning or message, but I would have to probably. Seems like she's a fan. But I would probably have to learn more and read the books and see the movies to give you a tentative judgment on that.

25:10And I recognize reasonable people can probably disagree on that. It goes on like that for a while, until... Thank you, counsel. Thank you. Ms. Blatt. Thank you, Mr. Chief Justice, and may it please the court. Goldsmith's lawyer gets up to speak. If petitioner's test prevails, copyrights will be at the mercy of copycats. And she argues the whole new meaning and message part of the transformative test is kind of bullsh**. Anyone could turn Darth Vader into a hero or spin off All in the Family into the Jeffersons without paying the creators a dime. She's like, if anyone can take something and make a tiny little change and call it theirs, then basically there's no copyright protection for anything.

25:56Your test lies madness in the way of almost every photograph to a silkscreen or a lithograph or any editing. I guarantee the airbrush pictures of me look better than the real pictures of me. And they have a very different meaning and message to me. John Roberts is like, isn't Warhol doing something bigger? It's not just that Warhol has a different style. It's a different purpose. One is the commentary on modern society. The other is to show what prints looks like. But Goldsmith's lawyer is like, you're missing the point. So where I think all this goes wrong is you're just focusing on meaning and message independent of the underlying use.

26:35In other words, this isn't about aesthetics. This is about money and the market. Even Warhol followed the rules. When he did not take a picture himself, he paid the photographer. His foundation just failed to do so here.

26:58If you could just summarize briefly, because this was— A big case. A David versus Goliath case. This is a huge, huge copyright case that we'll have. After the decision came out, Lynn Goldsmith went on the radio to talk about it. The reason I risked everything I have was I wanted to make sure, as best I could, that the copyright law would be one to protect all artists. The court rules 7-2 in Goldsmith's favor. But what's funny about it is they did it in kind of a very Warhol way. Well, I don't know. I never call my stuff art. See, it's just work. Warhol's whole artistic project is arguably a commentary on American consumerism.