Proposed Draft Of Supreme Court Opinion On Andy Warhol’s Painting Of Prince

For the second time in two years, the Supreme Court has taken up the challenge of adding clarity to the “fair use” defense to a copyright infringement claim. The prior attempt was in Google vs. OracleORCL
, which left the defense more muddled than ever by permitting extensive verbatim copying on specious grounds. In the latest foray, the Supreme Court is going to decide in a pending case whether Andy Warhol’s colorized painting of a photograph of Prince is protected by the fair use defense against a copyright infringement claim brought by the photographer.

The decision in this case will have far-ranging critical implications for Hollywood, and it will be cited for decades to come. If history be our guide, it is almost certain that the Supreme Court will add yet more mud to a muddy issue. In order to avoid that result, and with the aim of impartiality, I humbly offer the Supreme Court drafts of the two opposing opinions it could issue for this case:

Text of Opinion Ruling in Favor of Andy Warhol’s Painting:

“BE IT HEREBY ADJUDGED AND DECREED that a majority of the Justices, having compared the painting and the photograph, have ruled with their hearts and think that the painting does not infringe the photograph, so we hereby rule that the painting is protected by the fair use defense.”

[Optional additional provisions:]

1. [Long-winded and irrelevant discussion of a list of the four factors to supposedly consider in Copyright Act Section 107, the fair use defense statute.]

2. [Long-winded and circular discussion concluding that the painting is “transformative,” even though that is not one of the factors listed in the fair use statute.]

3. [Long-winded and unconvincing discussion attempting to distinguish prior inconsistent cases that ruled against the fair use defense and attempting to analogize to cases that upheld the fair use defense.]

4. [Long-winded pre-ordained conclusion that the painting is protected by the fair use defense.]

Text of Opinion Ruling Against Andy Warhol’s Painting:

“BE IT HEREBY ADJUDGED AND DECREED that a majority of the Justices, having compared the painting and the photograph, have ruled with their hearts and think that the painting does infringe the photograph, so we hereby rule that the painting is not protected by the fair use defense.”

[Optional additional provisions:]

1. [Long-winded and irrelevant discussion of a list of the four factors to supposedly consider in Copyright Act Section 107, the fair use defense statute.]

2. [Long-winded and circular discussion concluding that the painting is not “transformative,” even though that is not one of the factors listed in the fair use statute.]

3. [Long-winded and unconvincing discussion attempting to distinguish prior inconsistent cases that upheld the fair use defense and attempting to analogize to cases that ruled against the fair use defense.]

4. [Long-winded pre-ordained conclusion that the painting is not protected by the fair use defense.]

Final Paragraph for Both Decisions:

“The case is remanded for further proceedings consistent with this opinion. It is so ordered.”