Catfight: Sotomayor mixes it up with Kagan in Supreme Court ruling on Warhol

Does Supreme Court "wise Latina" Justice Sonia Sotomayor have an ongoing feud with her equally leftist colleague, Justice Elena Kagan?

Sure looks like it, based on the catty notes Sotomayor wrote about Kagan's dissent in the 7-2 ruling on whether a photographer could sue the Andy Warhol Foundation for copyright violation for the use of her 1981 photograph, which was used as a reference for a series of his paintings depicting rock star Prince. Sotomayor's side won the case, but she couldn't shut up about it and had to take dig after dig at Kagan, whose side didn't win.

Most of the Court, including Sotomayor, ruled that based on the copyright terms of use of the photograph, in which Warhol's sponsor, Vanity Fair, paid the photographer $400 for a one-time use of her photo as a "reference" and hired Warhol to create some art from it, the contract was violated because Warhol made 16 different versions of silkscreen paintings (you can see them here), although he used only one of them for the magazine spread, as per the contract. (I suspect Warhol might have just been practicing when he created the others and never intended them for publication.) The Warhol Foundation, which inherited his series of Prince silkscreen images after he died, leased out another version of the painting to Conde Nast and got a $10,000 retainer for it, none of which was shared with the photographer, Lynn Goldsmith. The majority ruled in favor of Goldsmith.

In their majority ruling, they went through all the rules of fair use -- and the opinion, which is fairly interesting, can be read here.

Kagan (and Chief Justice John Roberts in a simple concurrence) didn't agree. Kagan argued-- like a total modern art lover, which I suspect she is after reading her chatty dissent straight from the kinds of lectures you hear in art class -- that the work was sufficiently 'transformative' that it should be counted as a totally separate work apart from the photo.

The issue of course is complicated, and both sides have a point. The mistake I can see is that Vanity Fair, or the Foundation which inherited the work, didn't pay for unlimited use of the reference photo, or at least for 16-times use, which would have cost them a pittance and prevented the court case. (16 x $400) - $400 they already paid = $6,000. (I would also argue that she couldn't raise her price just because Warhol did the silkscreens, which would have made their resale far more profitable, because, well, that's the transformative, or Warholian, part.)

Over at the New York Post, reporter Victor Nava found a host of snippinesses and snarks from Sotomayor directed against Kagan:

Supreme Court Justice Elena Kagan appeared to take umbrage at Justice Sonia Sotomayor’s majority opinion in a copyright case involving Andy Warhol and Prince, telling readers in her dissent that she would trust their “good judgment” rather than counter her colleague’s “fistfuls of comeback footnotes.”

The shot at Kagan’s fellow liberal came in a lengthy second footnote of her dissent, which several Supreme Court observers found “interesting” and “noteworthy.” 

“One preliminary note before beginning in earnest,” Kagan wrote. “As readers are by now aware, the majority opinion is trained on this dissent in a way majority opinions seldom are. Maybe that makes the majority opinion self-refuting? After all, a dissent with ‘no theory’ and ‘[n]o reason’ is not one usually thought to merit pages of commentary and fistfuls of comeback footnotes.”

“In any event,” Kagan went on. “I’ll not attempt to rebut point for point the majority’s varied accusations; instead, I’ll mainly rest on my original submission.

Blah, blah. Then Sotomayor bitched back:

In that opinion, Sotomayor said Kagan had employed “sleight of hand” and made “a false equivalence between AWF’s commercial licensing and Warhol’s original creation.

“The result is a series of misstatements and exaggerations, from the dissent’s very first sentence to its very last,” she added.

In response to Kagan’s conclusion that that the court’s decision would “stifle creativity of every sort … impede new art and music and literature … thwart the expression of new ideas and the attainment of new knowledge [and] make our world poorer,” Sotomayor wrote: “These claims will not age well.”

“It will not impoverish our world to require AWF to pay Goldsmith a fraction of the proceeds from its reuse of her copyrighted work,” the majority opinion went on. “Nor will the Court’s decision, which is consistent with longstanding principles of fair use, snuff out the light of Western civilization, returning us to the Dark Ages of a world without Titian, Shakespeare, or Richard Rodgers.”

“In tracing the history of Renaissance painting … the dissent loses sight of the statute and this Court’s cases,” Sotomayor added. “The Lives of the Artists undoubtedly makes for livelier reading than the U. S. Code or the U. S. Reports, but as a court, we do not have that luxury.”

The snarky asides made legal scholars and court reporters sit up and take notice.

They don't usually do this sort of thing.

But that one of the players here was the loosely wrapped Sotomayor, whom the late Justice Ruth Bader Ginsburg reportedly couldn't stand based on her low legal brainpower, shouldn't surprise anyone.

Now, one thing that may have been going on here is that Kagan pretty well told the rest of the Court they were a bunch of art philistines in her ruling.

Get a load of the flavor in the first part of her dissent, which begins on the 53rd page of the entire ruling:

JUSTICE KAGAN, with whom THE CHIEF JUSTICE joins, dissenting. Today, the Court declares that Andy Warhol’s eye-popping silkscreen of Prince—a work based on but dramatically altering an existing photograph—is (in copyright lingo) not “transformative.” Still more, the Court decides that even if Warhol’s portrait were transformative—even if its expression and meaning were worlds away from the photo—that fact would not matter. For in the majority’s view, copyright law’s first fair-use factor—addressing “the purpose and character” of “the use made of a work”—is uninterested in the distinctiveness and newness of Warhol’s portrait. 17 U. S. C. §107. What matters under that factor, the majority says, is instead a marketing decision: In the majority’s view, Warhol’s licensing of the silkscreen to a magazine precludes fair use.1

You’ve probably heard of Andy Warhol; you’ve probably seen his art. You know that he reframed and reformulated—in a word, transformed—images created first by others. Campbell’s soup cans and Brillo boxes. Photos of celebrity icons: Marilyn, Elvis, Jackie, Liz—and, as most —————— 1By the time of the licensing, Warhol had died and the Warhol Foundation had stepped into his shoes. But for ease of exposition, I will refer to both the artist and his successor-in-interest as Warhol. 2 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC. v. GOLDSMITH KAGAN, J., dissenting relevant here, Prince. That’s how Warhol earned his conspicuous place in every college’s Art History 101. So it may come as a surprise to see the majority describe the Prince silkscreen as a “modest alteration[]” of Lynn Goldsmith’s photograph—the result of some “crop[ping]” and “flatten[ing]”—with the same “essential nature.” Ante, at 8, 25, n. 14, 33 (emphasis deleted). Or more generally, to observe the majority’s lack of appreciation for the way his works differ in both aesthetics and message from the original templates. In a recent decision, this Court used Warhol paintings as the perfect exemplar of a “copying use that adds something new and important”—of a use that is “transformative,” and thus points toward a finding of fair use. Google LLC v. Oracle America, Inc., 593 U. S. ___, ___–___ (2021) (slip op., at 24–25). That Court would have told this one to go back to school.


Which must have stuck in low-class Sotomayor's craw.

The other thing is probably the first thing that came to mind -- that someone in Sotomayor's office was the abortion leaker, maybe even Sotomayor herself, whom no one seems to be able to catch -- and that has brought about a breakdown of trust in the court, and with it, open catfights.

An editor at Hot Air observes here:

Kagan’s not kidding, either. I started reading through the published opinion and found a forest of footnotes in Sotomayor’s argument that heaped scorn on Kagan’s reasoning, and not in a friendly manner either. There seems to be a footnote on nearly every page in which Sotomayor finds reason to ridicule Kagan, plus more directly in the body of the text. Pages 36-7 in particular obsesses over Kagan’s reasoning, making the arguments from the plaintiff and respondent almost an ancillary manner. Gorsuch is almost as bad in his concurrence, which runs only five pages with as many mentions of Kagan’s argument, but Gorsuch is a conservo-libertarian justice. It really does read as though Sotomayor and Kagan have some feud under way, or at least that Sotomayor really has a problem with her erstwhile liberal colleague.
One wonders what that might be, if so. Perhaps related to a leak? Hmmm. Anyway, the real irony here is that the decision today doesn’t actually settle the copyright claim. It just forces the district court to proceed to trial on it rather than dismiss under a fair-use argument.
Which makes one wonder if this is the shape of things to come on the Court.
Image: PXFuel // CC0 public domain
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