SPEAKER_18: This message comes from NPR sponsor Charles Schwab. Independent Registered Investment Advisors are fiduciaries. They must act in your best interest always. That's why Schwab is proud to support them. Visit findyourindependentadvisor.com.
SPEAKER_14: This is Planet Money from NPR.
SPEAKER_11: Today's story is essentially about these two images. Yeah, so one of the images is a photograph of Prince.
SPEAKER_11: Prince, as in the musician, the cultural icon, the guy formerly known as a symbol.
SPEAKER_14: And 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.
SPEAKER_11: 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.
SPEAKER_21: Well, I don't know, I never call my stuff art. See, it's just work.
SPEAKER_14: Andy Warhol of Campbell Soup fame, the guy who did all those colorful portraits of Marilyn Monroe. Yeah, and one of the big questions is,
SPEAKER_11: well, does Andy Warhol owe Lynn Goldsmith any money for taking her photo of Prince to make his art? Like, does any of that count as stealing? That is a really tricky question.
SPEAKER_14: 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
SPEAKER_11: a little bit of borrowing, right? A little bit of remixing, a little bit of retweeting. That's just called inspiration, right?
SPEAKER_14: Exactly. So copyright law has to strike this very tricky balance. Too strict and you'll stifle creativity. Too loose and you could destroy the market for creative work. It is like this impossible dilemma between creativity on one hand
SPEAKER_11: 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
SPEAKER_14: and how the Supreme Court solves these complicated questions about when copying someone's work is fair and when is it stealing. It's about art, it's about economics and this impossible dilemma of copyright law.
SPEAKER_19: So, for about as long as there's been copyright law, there's also been this idea that some moss zapper critics can understand what the Formula Fourauds tell on. Also that there's been some great
SPEAKER_11: France speakers who have been transforming the way the world works in construction, transportation, and agriculture. This message comes from NPR sponsor Honeywell, helping meet your sustainability goals with their consultative approach and technologies that are ready to support you wherever you are in the journey. Learn more at Honeywell.com slash NPR. So for about as long as there's been copyright law, there's also been this idea that some copying is okay, that it's even good for society. We want people to be able to quote and remix and get inspiration from existing works. Otherwise where would new books or works of art come from?
SPEAKER_14: This 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
SPEAKER_11: 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 Eades talked to one person whose ideas shifted how courts
SPEAKER_14: thought about the delicate copyright balance.
SPEAKER_05: One, two, three, four. This seems to be recording.
SPEAKER_13: You can trace the origin story of the Andy Warhol case back to this man.
SPEAKER_05: My name is Pierre Laval. I'm a judge of the United States Court of Appeals for the Second Circuit.
SPEAKER_13: When Judge Laval was in law school.
SPEAKER_05: 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.
SPEAKER_13: Judge Laval should have taken the fun class. So wait, why is copyright fun for law students?
SPEAKER_13: 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.
SPEAKER_14: 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 one, 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. Sounds like a blast. Yeah, so it's a lot of words.
SPEAKER_13: 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.
SPEAKER_05: Fair use is entirely created by judges. I mean, eventually it was adopted into the law.
SPEAKER_13: But in the eighties, when LaValle 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.
SPEAKER_05: None of those judicial opinions ever undertook to tell you, how do you discern whether a use is fair use or not?
SPEAKER_14: Yeah, how are you supposed to tell?
SPEAKER_13: Yeah, I don't know. So LaValle came up with an idea for a new standard.
SPEAKER_05: Transformative use.
SPEAKER_13: When might it be okay to copy someone else's work? When the copy transforms the original. In 1990, Pierre LaValle writes this hugely influential law review article essentially saying, to be transformative, a piece of art.
SPEAKER_05: Should seek to communicate something very different from what the original author was seeking to communicate.
SPEAKER_13: And that the work should add new information, new aesthetics, new insights and understandings. Which honestly, I don't know, is still kind of vague.
SPEAKER_05: So the thing that is 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.
SPEAKER_13: 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. Okay, so picture this. It's the 1980s. The parties are wild.
SPEAKER_07: The girls was doing what they call twerking now. They was just calling it shake dancing back then.
SPEAKER_13: And there's this little hip hop group making a big name for itself. And that group is 2 Live Crew.
SPEAKER_07: My name is David Hobbs, also known as DJ Mr. Mix. If there's no me, there's no 2 Live Crew. That's my intro.
SPEAKER_13: Mr. Mix grew up just outside LA. He was always musical.
SPEAKER_07: 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.
SPEAKER_13: He learned to play the saxophone when he was a kid, sort of mimicking records by ear.
SPEAKER_07: I would take records from my pops collection and bring them back to my room and try to figure out the notes or play along with the melodies that I heard on the records.
SPEAKER_13: 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...
SPEAKER_07: The breakdancing group, Rock Steady Crew, came to England to do an exhibition. And I went to one of them. And they had a DJ with them.
SPEAKER_13: And this is the first time Mr. Mix sees somebody DJ. And he's just like hooked.
SPEAKER_07: When I actually seen him do it, and I seen one hand was on the record going back and forth in a scratching motion, in the same way like you would scratch your arm. Okay, so now I get to understand why they call it scratching.
SPEAKER_13: So he leaves England, the Air Force stations him back in California.
SPEAKER_07: I went and got me two makeshift turntables and a makeshift mixer and started practicing in the barracks honing my skills.
SPEAKER_13: 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.
SPEAKER_07: 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
SPEAKER_13: you did. Fast forward, Mr. Mix forms two live crew with some friends, and they're blowing up in Miami. And their music and their shows are super raunchy. They 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 Rory Orbison song as something that would be fun to rip
SPEAKER_13: and mix.
SPEAKER_07: 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. But I guess their beef was that we didn't get permission from them to do it.
SPEAKER_13: And to no one's surprise, they get sued. And they end up in the Supreme Court.
SPEAKER_03: And the question is, can two live crew's version of Pretty Woman be considered fair use as
SPEAKER_13: a parody?
SPEAKER_20: 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.
SPEAKER_07: 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. Like that's what we were really doing.
SPEAKER_03: We now reverse and remand. 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.
SPEAKER_13: 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. Lavelle.
SPEAKER_05: Well, I was pretty thrilled.
SPEAKER_13: Why?
SPEAKER_05: Well, because they took my article and used it kind of as a blueprint.
SPEAKER_13: This was a victory for a two live crew and for Pierre Lavelle, who became a giant in the fun area of the law, much to his surprise.
SPEAKER_14: And weirdly, it seems to me like Justice Souter is taking Lavelle and sort of remixing him in a way.
SPEAKER_13: 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 Lavelle's transformative use standard. It becomes the beating heart of fair use law.
SPEAKER_13: 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.
SPEAKER_13: Then Warhol comes along. Well then, what's the difference between a photograph and a painting?
SPEAKER_08: That's a big difference.
SPEAKER_21: There is no difference. Yeah, I like photographs better.
SPEAKER_13: 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?
SPEAKER_14: That's after the break.
SPEAKER_19: This message comes from NPR sponsor Crow. Don't avoid or resist the unknown. Face it head on. Crow offers top flight services in audit, tax, advisory, and consulting to help your business take on today's biggest challenges. Visit embrace volatility.com.
SPEAKER_18: This message comes from NPR sponsor United. Invested in the future production of more than 5 billion gallons of sustainable aviation fuel more than any other airline. United, good leads the way based on publicly announced airline offtake agreements for future purchases of SAF.
SPEAKER_01: Hi this is Daniel Alarcon, host of NPR Spanish language podcast Radio Ambulante. Our new season features surprising stories from Latin America. In Mexico, a sculptor confounds archeologists with brand new antiquities. In Costa Rica, gentrification sparks a war in defense of endangered turtles. In Colombia, a journalist's military ID is issued inexplicably with the photo of Cristiano Ronaldo. New stories every Tuesday, wherever you get your podcasts.
SPEAKER_16: Hey, it's Nick Fountain. Call it affirmative action for rich kids. America's elite colleges give them a huge admissions advantage over middle class kids with the same SAT scores. And it's more than just legacy admissions.
SPEAKER_04: It turns out maybe contrary to what a lot of people would think, athletes recruited at these colleges tend to come from much higher income families, not lower income families. And that contributes to this.
SPEAKER_16: We hear from one of the authors of that latest research, a Planet Money favorite Raj Chetty, on our latest bonus episode for Planet Money Plus listeners. If that's you, thank you for your support. And if it's not, it could be. Sign up at plus.npr.org. Thanks.
SPEAKER_14: Judges 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.
SPEAKER_13: Yeah, so it's the very powerful Warhol Foundation versus Lynn Goldsmith.
SPEAKER_02: In 1981, I made a studio portrait of Prince.
SPEAKER_13: The photo is black and white. It'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, Prince 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.
SPEAKER_21: Now I do some, you know, portraits of people.
SPEAKER_13: 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.
SPEAKER_14: So far, everything's fine, right? Everyone's been paid, everything's fine.
SPEAKER_13: Yeah, everything's fine. Everything's fine for quite a while until 2016.
SPEAKER_00: There is breaking news from Minnesota. The singer, songwriter, and musician known as Prince has died.
SPEAKER_13: There's all these outpourings of remembrances. A great musician, a great producer, great songwriter.
SPEAKER_03: Possibly the most talented, charismatic, entertaining, influential.
SPEAKER_13: Lynn Goldsmith is seeing all this coverage just like anybody else. And she comes across the cover of a magazine about Prince.
SPEAKER_02: 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.
SPEAKER_13: This 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.
SPEAKER_02: So I called up the Warhol Foundation and I said, 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.
SPEAKER_09: We'll hear argument first this morning in case number 21869, Andy Warhol Foundation.
SPEAKER_13: And it ends up at the Supreme Court.
SPEAKER_10: Mr. Chief Justice and may it please the court.
SPEAKER_13: The Warhol lawyer goes first.
SPEAKER_10: The stakes for artistic expression in this case are high. A ruling for Goldsmith would strip protection not just from this Prince series, but from countless works of modern and contemporary art.
SPEAKER_13: 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 on page 1111.
SPEAKER_13: 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
SPEAKER_10: of celebrity culture in America.
SPEAKER_13: But the justices push back on this whole idea.
SPEAKER_09: Is that enough of a transformation?
SPEAKER_13: Under LaValle's test, how can judges tell if the meaning or message has been transformed enough? How can a court even tell what the meaning or message of a piece of art is?
SPEAKER_15: Did it receive testimony by the photographer and the artist? Do you call art critics as experts? How does the court go about doing this?
SPEAKER_13: 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.
SPEAKER_08: Let's suppose that you put a little smile on his face and say this is a new message.
SPEAKER_09: The message is Prince can be happy, Prince should be happy.
SPEAKER_13: He begins to throw out hypotheticals. And they use these hypotheticals to stress test the transformative standard. If you didn't know this is what the justices do,
SPEAKER_09: Let's say somebody uses a different color.
SPEAKER_13: It might sound like they're just going off the rails. Here's Clarence Thomas.
SPEAKER_17: Let's say that I'm both a Prince fan, which I was in the 80s. And no longer.
SPEAKER_17: Well only on Thursday night. But let's say that I'm also a Syracuse fan.
SPEAKER_13: And he's like, what if I make a giant orange Prince head poster for a Syracuse game?
SPEAKER_17: And I'm waving it during the game with a big Prince face on it. Go on.
SPEAKER_13: 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.
SPEAKER_10: I don't think that Lord of the Rings has a fundamentally different meaning or message, but I would have to probably — The movie?
SPEAKER_10: 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 definitive judgment on that. And I recognize reasonable people can probably disagree on that.
SPEAKER_13: It goes on like that for a while until — Thank you, counsel.
SPEAKER_09: Thank you. Ms. Blatt.
SPEAKER_06: Thank you, Mr. Chief Justice, and may it please the court.
SPEAKER_13: Goldsmith's lawyer gets up to speak.
SPEAKER_06: If petitioner's test prevails, copyrights will be at the mercy of copycats.
SPEAKER_13: And she argues the whole new meaning and message part of the transformative test is kind of bullsh—
SPEAKER_06: 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
SPEAKER_13: theirs, then basically there's no copyright protection for anything.
SPEAKER_06: Their 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.
SPEAKER_13: John Roberts is like, isn't Warhol doing something bigger?
SPEAKER_09: It's not just that Warhol has a different style. It's a different purpose. One is to commentary on modern society. The other is to show what Prince looks like.
SPEAKER_13: But Goldsmith's lawyer is like, you're missing the point. So what I think all this goes wrong is you're just focusing on meaning and message independent
SPEAKER_06: of the underlying use. In other words, this isn't about aesthetics.
SPEAKER_13: This is about money and the market.
SPEAKER_06: 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.
SPEAKER_12: If you could just summarize briefly because this was a big case, a David versus Goliath case. This is a huge, huge copyright case that will have...
SPEAKER_13: After the decision came out, Lynn Goldsmith went on the radio to talk about it.
SPEAKER_02: 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 to 2 in Goldsmith's favor.
SPEAKER_13: But what's funny about it is they did it in kind of a very Warhol way. I don't know.
SPEAKER_21: I never call my stuff art. See, it's just work.
SPEAKER_13: Warhol's whole artistic project is arguably a commentary on American consumerism, the way everything is a commodity. Campbell's soup cans, Marilyn Monroe, Prince, even Warhol's own art. And the irony is the justices kind of agree with him here. They treat his work like a commodity and reason that the Goldsmith photograph and the Warhol silkscreen are both licensed to magazines to go with articles about Prince. So they're serving the same purpose in the same market. And that means no transformation. The Warhol Foundation was wrong.
SPEAKER_14: So what about the question we started with? Like in making the photo orange and bold, did Warhol transform the meaning of the photograph like aesthetically?
SPEAKER_13: Right. So the court kind of put that aside. They're like, we're not art critics. We're not hearing from art critics. We don't want to focus on the meaning or message of a thing so much. We want to focus on how it's being used. So in this way, they transformed their own transformative test.
SPEAKER_14: So Jeff, I think this saga is so interesting. It kind of shows these two different ways to think about fairness, right? Yeah.
SPEAKER_11: So was it fair for Warhol to take that photograph and remix it? You could answer the question from the perspective of an artist, or you could answer it from the perspective of the market.
SPEAKER_14: And in this case, the Supreme Court says we need to look at this stuff less like we're art critics because we're not really equipped to do that. And we'll treat it more like we're art dealers. So looking at art as a product and judging whether two works competing with each other in the same market are just too similar.
SPEAKER_11: Right. So Judge Laval's transformative test, it got courts to really focus on whether the copying led to something new and original. But now the Supreme Court's saying, well, let's not forget that copyright, it's also about economics. It's about who gets to profit from a work of art.
SPEAKER_11: And it is just so funny to me that Andy Warhol is at the center of this case because Andy Warhol's art was all about what happens when art collides with commerce. So Julia, I think this decision, it's really kind of poetic. Well, I'm not a poetry critic, but I happen to agree with you.
SPEAKER_11: This episode was originally produced by More Perfect from WNYC Studios. Julia, you all just wrapped up a great new season.
SPEAKER_14: That's right. This season, we looked at how we got the Supreme Court we have today. We have stories about Clarence Thomas's black nationalist roots, the origins of Roe v. Wade's viability line, and so much more. This particular More Perfect episode was produced by Whitney Jones and Alyssa Eads with help from Gabrielle Burbay. It was edited by me, Julia Longoria, and Jenny Lawton, fact checked by Naomi Sharp, sound designed by David Herman, and mixed by Joe Plourde.
SPEAKER_11: This Planet Money episode was produced by Emma Peasley and edited by Jess Jang. It was engineered by Maggie Luthar. I'm Jeff Guo. I'm Julia Longoria.
SPEAKER_14: This is NPR. Thanks for listening.
SPEAKER_19: This message comes from NPR sponsor Velocity Global, giving you the power to build your dream team everywhere by making it simple to compliantly hire, pay, and manage talent anywhere. With Velocity Global, the world is yours.
SPEAKER_18: This message comes from Jackson. Seek clarity in retirement planning at Jackson.com. Jackson is short for Jackson Financial, Inc., Jackson National Life Insurance Company, Lansing, Michigan, and Jackson National Life Insurance Company of New York.
