[In Warhol], Supreme Court rules for income streams over artistic freedom

The Supreme Court has made it more difficult to quote from existing imagery, music and text, and harder to critique society by borrowing and amplifying others’ works. The 7-2 majority opinion in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith builds on the copyright and fair use decisions of the past 200 years. At first glance, it reads like the triumph of an independent creator over more powerful forces that seek to profit from original work without paying. Justice Sonia Sotomayor, writing for the majority, affirmed the right of photographer Lynn Goldsmith to copyright protection “even against famous artists.” Many fair use determinations, especially in the future, will be made by software with limited opportunities for human review. Without a clear rule that creators have certain liberties to borrow portions of existing works, new works will be systematically deleted or downranked to oblivion, with little recourse for those who create them. Despite the dampening effect that the Warhol decision may have, fair use will continue to be with us. Quotation, pastiche, burlesque and mashups are as old as the Book of Genesis.