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Elena Kagan Uses Footnote To Unleash Surprise Sotomayor Diss Track

All right, let's not say anything in the U.S. Reports that we'll regret in the morning.

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Senate Confirmation Hearings For Elena Kagan Continue

(Photo by Brendan Smialowski/Getty Images)

Elena Kagan is the classic sort of person who’s not angry as much as she’s disappointed in you. And she’s going to make sure everyone knows she’s disappointed in you too.

That’s the best way to describe footnote 2 of her dissent in this morning’s decision in Andy Warhol Foundation v. Goldsmith. By way of background, the 7-2 Warhol majority ruled in favor of photographer Lynn Goldsmith, who took a picture of Prince in the early 80s that Andy Warhol turned into a series of colored silkscreens. The Warhol Foundation argued that the works were transformative and fair use, but the majority reasoned that taking another artist’s image and then licensing the new version for commercial use weighs against the fair use defense.

If hard cases make bad law, then stupid cases make even worse law.

On the one hand, Andy Warhol’s pop art relied on transforming existing work in imaginative ways. On the other hand — at least by the 1980s — Warhol could just take other people’s creative works, slap a color filter on them, and then profit off them because he was Andy Warhol. I’m sure there are art critics who will attest that’s not what Warhol did, but it’s certainly what he was capable of doing by virtue of being one of if not the most famous living artist in the world at that point.

That’s why the majority focused on the first prong of fair use and determined that the commercial nature of the “transformative” use cut in favor of original photographer. Does the opinion potentially open the door for future clamping down on the fair use defense that is so central to balancing creative inspiration with protecting intellectual property? Yeah, probably. But also we’re mostly talking about an artist using the precursor of a Snapchat filter.

Justice Kagan takes issue with the majority, but not as much as she takes issue with Justice Sotomayor’s opinion repeatedly and pointedly contrasting itself to the dissent. Ironic, because in a sense the majority is just transforming the dissent to convey a different meaning or message.

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Kagan Footnote

Holy hell.

It’s kind of fun and it’s always appreciated when a judge inserts some shade without childish, vacuous insults. As someone who thinks Kagan is the best writer on the Court, I’m particularly tickled to see how she crafts a burn.

But also… she lost a 7-2, non-partisan opinion. After months of deliberation, she still couldn’t swing people to her cause. Got to take the L at that point.

Opinion on the next page…

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HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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