In a hearing Wednesday, the Supreme Court will become something of an art critic, evaluating whether a famous work by Andy Warhol was truly creative. It would have to be, in order to be legal under U.S. copyright law. At a second hearing, the Court will consider when a supervisor in a business has a legal right to overtime pay.
The Court will broadcast “live” the audio (no video) of the hearings on its homepage, supremecourt.gov To listen, click on “Live Audio” and follow the prompt when the courtroom scene appears below. The audio also will be available, under the title of the case, on C-Span TV at this link: cspan.org/supremecourt
First hearing: Andy Warhol Foundation for the Visual Arts v. Goldsmith The hearing, starting at 10 a.m., is scheduled for 70 minutes.
Background: Those who wrote the U.S. Constitution wanted to encourage learning and the advancement of knowledge, so they gave Congress power (as phrased in Article I) “to promote the progress of science and the useful arts, by securing for limited times to authors and inventors their exclusive right to their respective writings and discoveries.” In less formal language, that meant that Congress was to give an incentive to creative individuals by promising them a monopoly, running for a significant number of years, to turn their creations into something commercially marketable.
Those phrases embrace both copyright and patent protection. Ideas themselves are not legally protected under copyright or patent law; only the way they are expressed or implemented is eligible for a monopoly. Wednesday’s case is only about copyright.
For their notion of copyright, the Founding Fathers probably were borrowing from their English ancestors, who wrote the first copyright protection law – the Statute of Anne – in 1710. That law established for the first time a government grant of the privilege of copyright, previously controlled by private parties, especially publishers. The basic idea, though, has antecedents in early Roman and Greek societies.
The U.S. Congress passed the first copyright law in America in 1790, with the stated aim of encouraging learning in the new republic. The same cultural aspiration, however, also lies behind the promotion of ideas by the First Amendment’s guarantees of freedom of speech and freedom of the press. There has always been some tension between those promises of free expression as a constitutional right and the monopoly control assured by copyright protection – control that is assured by the Constitution but actually protected by a law passed by Congress.
One way to try to ease that tension is by a form of forgiveness of a creative work that would appear to infringe on someone’s copyright monopoly, and that is the idea of “fair use.” A Marquette University law professor who is a specialist in this field, Bruce E. Boyden, has written that “fair use is both crucially important and profoundly murky. Indeed, its murkiness is part of its design.”
The concept of “fair use” appeared in 18th Century English courts, but its United States origin is an 1841 federal court decision, Wilkins v. Marsh, written by famous Supreme Court Justice Joseph Story while he was sitting temporarily on that lower federal court. He ruled that it was not a “fair use” of copyrighted contents of a 12-volume biography of George Washington, when an author copied 353 pages of Washington’s letters and published them in his own two-volume work.
The continuing importance of that ruling is that Story spelled out four factors that must be met in order for “fair use” to be accepted as a legal defense to a claim of infringement. Those factors were fleshed out over the years in federal court rulings, applying common-law (court-made) principles, and then Congress finally wrote them into the Copyright Act of 1976.
The factors are: (1) what was the purpose of using someone else’s copyrighted creation, including whether the new work was genuinely new and creatively expressive (“transformative”), and was the purpose commercial or for non-profit education; (2) was the original work creative enough to be worthy of its monopoly; (3) how much of the original work was used in the new work; and (4) did the existence of the new work reduce the market value of the copyrighted work?
As this new case has unfolded before the Supreme Court, it has come down largely to the question of how the Justices will apply that first test, and specifically, how broadly to interpret a claim that a new work is “transformative” of the original.
The legal contestants are the Andy Warhol Foundation for the Visual Arts, the entity founded after the famous pop artist had died; it seeks to protect the remaining interests in his work, and, on the other side, famous photographer Lynn Goldsmith and her firm. Both Warhol and Goldsmith made their reputations depicting celebrities, especially those in the world of music. Sort of in the middle, but not legally directly involved, is a now-deceased singer and performer, known and highly popular in the entertainment field by the single name, Prince (he was born Prince Rogers Nelson).
Although the facts of the interactions over several years of Warhol and Goldsmith are very complex, they boil down to Goldsmith’s copyrighted photo of Prince, made in 1981, and how Warhol adapted silkscreen depictions of that photo for versions exhibited in magazines and in museums. Although Goldsmith had agreed to allow the magazine, Vanity Fair, to sign up an artist to turn the photo into an illustration in a 1984 edition, Warhol actually made a series of 12 depictions of it and widely circulated those.
Ultimately, Goldsmith complained to the Warhol foundation that these works had infringed on her copyright. The foundation answered by going to court, asking for a ruling that Warhol’s works had not infringed but, if they had, they were legally protected under the “fair use” doctrine.
A federal trial judge, applying the four-factor formula for “fair use,” ruled in favor of the artist and his foundation on all four. The most significant part of that decision was that Andy Warhol had created works that were “transformative,” because they sent a new message about the person pictured, Prince.
However, a federal appeals court decided that the Warhol works were not protected as “fair use” of the Goldsmith photo. Again, the most important facet of that ruling is that what Warhol had done was to retain the essential elements of the photo and that the “over-arching purpose and function” of the photo and the depictions were identical. While it ruled for Goldsmith on the other three factors, too, the Warhol foundation’s appeal is focused on the that issue.
The question before the Court: Under the Copyright Act, does the creator of a new work have a legal right to base it on a copyrighted original creation if the new work conveys a meaning or message that differs from that of the original?
Significance: For decades, the “fair use” doctrine has been generally understood to be a legal defense to be put forward to counter a claim that one had infringed on another’s copyrighted creation. Phrased in the way that the question now is, there is a chance that the doctrine could be transformed into an affirmative right to engage in new expression or messaging even as a new work builds on someone else’s prior, protected creation.
If the Court were to be attracted to that alternative notion, it would revolutionize copyright law, and go a considerable distance toward limiting the degree of protection long afforded by having a monopoly under copyright protection. There is, among the many legal briefs filed in opposition to the Warhol foundation a strenuous challenge to moving in that direction – including a brief by the Biden Administration’s Justice Department
The Court’s current conservative majority has shown a good deal of sympathy for a robust interpretation of the free expression guarantees in the First Amendment, so it may approach this case in a mood to pare back the controls that come with a copyright grant.
In prior cases, the Supreme Court – according to Marquette’s professor Boyden – has always interpreted the doctrine by carving out, case by case, exceptions to a copyright monopoly. Discussing the Warhol foundation claim in this very case, he described it as an assertion “that Andy Warhol’s adapted portraits of Prince fall outside the proper limits of Goldsmith’s copyright, that the purposes of copyright law are no longer served at that point.”
Photographer Goldsmith’s legal brief warns the Court sternly against adopting the Warhol foundation approach, arguing that the “meanings-or-messages test is completely unworkable. Asking if new works are ‘reasonably perceived’ to have different meanings is a fool’s errand.” Colorfully, the brief ticks off some of what it perceives will happen if Warhol wins on the point: “Altering a song’s key to convey different emotions…Switching book endings so the bad guys win…Airbrushing photographs so the subject conforms to ideals of beauty…That alternative universe would decimate creators’ livelihoods…Fair use becomes a license to steal.”
Wednesday’s hearings may well bring hints of where the Justices are leaning, and there would seem to be a good chance that they will find themselves exploring deeply just what the Constitution meant in fostering creative expression under a mantle of copyright while rigorously protecting it under the First Amendment’s broadly worded mandates promoting uninhibited expression.
Second hearing Wednesday: Helix Energy Solutions Group v. Hewitt The hearing is scheduled for 70 minutes; it will begin as soon as the copyright hearing has ended.
Background: The Fair Labor Standards Act, the last major law passed as part of the Depression-era New Deal, was enacted in 1938 with the aim of protecting workers’ on-the-job rights. It controls the minimum wage of workers covered by the law, and it set a 40-hour week limit, with a promise of time-and-a-half overtime pay for working more than 40 hours. As a general rule, workers who hold jobs as supervisors are treated as exempt from the overtime pay requirement, on the theory that they usually are paid salaries.
This case involves a supervisor for a Houston-based company, Helix Energy Solutions Group. The company provides support services for production of oil, including from offshore wells in the Gulf of Mexico. Michael J. Hewitt worked for Helix as a supervisor on vessels operating offshore.
He was paid on a daily basis, at the rate of at least $963 each day. He earned more than $200,000 in each of the years 2015 and 2016, and more than $143,000 in the eight months he worked for the company in 2017. Based on a report of flawed performance, he was dismissed that year. He then sued the company, under the 1938 labor law, arguing that he was entitled to overtime pay in significant amounts.
Under federal regulations, a supervisor who earns at least $100,000 in a year and is paid on a weekly salary basis is treated as exempt from overtime pay eligibility. Hewitt contended in his lawsuit that he was not exempt, because he was paid on a daily, not a weekly, basis. A federal appeals court ruled in his favor, and the company appealed to the Supreme Court. The Biden Administration has entered the case to support Hewitt’s claim. There is a split among federal appeals courts on the issue.
The question before the Court: If a person who holds a job at a supervisor level, and is paid at least $200,000 a year, does federal law exempt that worker from eligibility for overtime pay for working more than 40 hours a week, even if the worker is paid daily instead of by a weekly salary?
Significance: This case is a straightforward test of the standard that federal labor regulations set for overtime pay for workers whose job is as a supervisor. The outcome is important for workers in that category, but does not appear to have an impact beyond that.
After Wednesday’s hearings, the Court will not be on the bench for hearings until Monday, October 31. On that day, the Court will review two cases testing whether the Justices are ready to nullify the decades-long practice of colleges and universities taking into account the race of students they select for admission – so-called “affirmative action.”