Clarence Thomas Cites His Prince Fandom “In The 80s” As Supreme Court Hears Landmark Copyright Case Over Andy Warhol Artworks

Ted Johnson
Updated ·5 min read
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The Supreme Court heard a consequential copyright case on Wednesday, having to do with whether Andy Warhol’s estate owes a photographer a licensing fee for basing his portraits on Prince on one of her works.

A moment that stood out, however, was when Justice Clarence Thomas, posing a hypothetical to one of the lawyers, made a reference to being a Prince fan, “which I was in the 80s.”

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“No longer?” interrupted Justice Elena Kagan.

The chambers erupted in laughter.

“Well,” Thomas said, as he himself chuckled, before pausing and adding, “Only on Thursday night.”

“Mmm hmmm,” Kagan replied.

The oral arguments actually were chalk full of pop culture references — one attorney at one point compared Mork & Mindy to Happy Days — given that it is a case that has potential implications over the future of the “fair use” doctrine in copyright law.

The case has to do with the Andy Warhol Foundation’s contention that the artist’s portrait of Prince did not violate copyright. Photographer Lynn Goldsmith sued the foundation, given that the artist used her 1981 photo, taken when Prince was largely unknown, as the basis for creating his silkscreen works. Vanity Fair used a Warhol work that was based on a Goldsmith photo in a 1984 issue, having obtained a license from the photographer. The problems came about after Prince died and Conde Nast, in its tribute to the singer, used a different Warhol work that was part of a series of artworks but also based on Goldsmith’s photo. The photographer contended that she was given no credit — nor did she grant a license — for that use of her work.

At issue is whether Warhol’s use of Goldsmith’s photos was a “fair use” of copyright material, and therefore outside the bounds of infringement. There are a set of standards used to weigh what constitutes “fair use,” including the purpose and character of the use, the nature of the copyrighted work, the amount used in relation to the protected work and the effect on the market for the copyrighted work.

The Warhol Foundation has argued that the Prince portraits are transformative uses, as Warhol’s works give a new meaning to the copyrighted photos: Warhol’s artwork portrayed him as iconic, the photo featured Prince as a vulnerable figure. Although a district court sided with the foundation, the Court of Appeals backed the photographer, and the Warhol side appealed to the Supreme Court.

The Motion Picture Association filed a friend-of-the-court brief in the case that was not in favor of either party, but its attorneys expressed concerns that the case could lead to a more expansive definition of what constitutes a “fair use.”

Among other things, the studios contend that the case could impact the protection of derivative works, things like sequels, remakes and reboots.

“Consider, for example, a hypothetical remake of the film Casablanca that is entirely the same as the
original except that at the end Rick boards the flight out of the city with Ilsa and leaves Victor Laszlo
behind to be apprehended by the Nazis,” the MPA wrote in its brief. “Such a work would certainly impart a ‘new meaning or message’ to the original and thus be transformative under petitioner’s approach. The revised ending would convert the film from a noble statement about sacrifice for a higher cause into a cynical parable about the inevitable triumph of self-interest and the folly of devotion to principle.”

During the oral arguments, the justices were clearly mindful of the impact that an expansive definition of “fair use” would have on protection of derivative works. Kagan expressed concern of not paying the author of a book when it is turned into a movie, for example.

Roman Martinez, representing the Warhol Foundation, argued that there was a distinction in that a book-to-movie adaptation wouldn’t be sufficiently transformative to fall under fair use.

He argued that the case “isn’t just about Warhol. It is about the young up and coming artists that want to be his successors.” The foundation has argued that the Prince series of artworks is part of Warhol’s legacy of commenting on celebrity and consumer culture.

Martinez told the justices that Warhol didn’t just duplicate Goldsmith’s image, but that it was used in a different medium, with changes in the angle of Prince’s face and composition.

Lisa Blatt, representing the photographer, directly addressed the potential impact that the case could have on derivative works.

“If petitioners’ test prevails, copyrights will be at the mercy of copycats,” she said. “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 did have one error, though, in making her point. “Any spinoff, any adaptation, it just starts with a new meaning. Take All in the Family. Norman Lear would be turning over in his grave right now. He had more spinoffs than any in American history.” Lear is very much alive, having just turned 100. She also cited other popular series of the 1970s, pointing to the Mork and Mindy spinoff from Happy Days. Her point: the spinoffs are derivative works that have very different meanings from the original, yet would not fall under the definition of a “fair use.”

Thomas’ point in invoking his fandom of Prince was to weigh when a work becomes transformative enough to fall under fair use. He asked Martinez, “Let’s say that I am also a Syracuse fan. And I decide to make one of those big blowup posters of orange Prince, and change the colors a little bit around the edges and put ‘go Orange!’ underneath. Would you sue me…for infringement?”

Martinez acknowledged that a court would look at that and determine that it was not the kind of “productive creativity promoting use” that is fair.

“So in other words, you would sue me,” Thomas said.

“I think that you probably would have a very weak case against me,” Martinez responded.

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