Supreme Court Justice Elena Kagan flamed her colleague Sonia Sotomayor in a court opinion on Thursday in a case addressing the fair use doctrine.
What is the case about?
After Prince died in 2016, photographer Lynn Goldsmith learned that Andy Warhol had used an image she took of the pop legend in 1981 as the basis of his famous “Prince Series” of portraits. Warhol had licensed her image under “artistic reference” guidelines.
When Prince died, Condé Nast published a commemorative magazine about him using one of Warhol’s portraits on the cover. Condé Nast credited and paid the Andy Warhol Foundation for the Visual Arts — which manages Warhol’s private art collection — not Goldsmith. So she sued.
In a 7–2 decision, the Supreme Court ruled in Goldsmith’s favor.
The court said the “purpose and character” of the AWF’s use of Goldsmith’s image does not qualify as “transformative use” under the fair use doctrine. Essentially, the court agreed that Goldsmith’s copyright had been infringed.
What about the opinions?
The majority opinion, written by Sotomayor, took several punches at the dissenting opinion, written by Kagan. In fact, Sotomayor at times appeared to be arguing more with Kagan than interacting with the arguments made by the plaintiff and respondent.
Sotomayor, for example, accused Kagan of using “sleight of hand” to ignore the central issues in the case while drawing “a false equivalence” to make her argument. Kagan, according to Sotomayor, “misses the forest for a tree.”
“The result is a series of misstatements and exaggerations, from the dissent’s very first sentence to its very last,” Sotomayor bashed.
Kagan responded likewise.
At the beginning of the dissenting opinion, which was joined by Chief Justice John Roberts, Kagan addressed Sotomayor’s criticism in a footnote, suggesting that her focus on the dissent is evidence of flawed legal reasoning.
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.
Kagan then explained that she will not attack Sotomayor’s opinion, but rest on her own arguments. Instead, she asked readers to frequently return to the majority’s opinion as they read hers to determine for themselves if it passes muster.
“I’ll take my chances on readers’ good judgment,” Kagan declared.
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