Feigenson on Saying It With Pictures: Image and Text in Andy Warhol Foundation for the Visual Arts v. Goldsmith

Neal Feigenson, Ouinnipiac University School of Law, has published Say It With Pictures: Image and Text in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith. Here is the abstract.

The majority and dissenting opinions in the Supreme Court’s recent case on fair use, Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, feature an unprecedented number of pictures: seventeen separate illustrations, almost all color photographs, and all but one embedded in the opinions instead of being relegated to an appendix. Images have appeared in SCOTUS opinions before, but never like this. This paper explores the functions and deeper significance of this outburst of visuality. In the two opinions, Justice Sotomayor’s for the majority and Justice Kagan’s dissent, the selections and sequences of the images tell very different stories of the dispute. The Justices also use their pictures to present their divergent theories of the case. No SCOTUS opinions have come close to using pictures this purposefully before, so it’s worth examining how the Justices did it here. Those pictures, of course, are surrounded by words. The pervasive picturing invites us, as no previous SCOTUS cases have, to think about the relationships between images and text in judicial opinions. Justices Sotomayor and Kagan verbally frame our viewing in contrasting ways. Not surprisingly, the words they use to refer to and describe the pictures they show underscore their opposing narratives and arguments. More than that, their words conceive of looking at pictures differently. Justice Sotomayor implies that we should regard her pictures simply as visual support for and authentication of her verbal claims. Justice Kagan, in contrast, exhorts us to really look at the pictures, a more active engagement that may make us more responsive to what pictures, perhaps especially pictures like Warhol’s, can do. Relatedly, their opinions reflect different ideas about pictorial meaning in general. For Justice Sotomayor, pictures just are (or, in this case, who what) they depict. This is characteristic of a naïve realist stance toward pictures. For Justice Kagan, pictorial meaning is a more complicated matter, emerging not only from what can be seen in the picture but also from the picture’s contexts, including expert commentary and other pictures. This matters for two reasons. First, while the Justices’ contrasting stances on pictorial meaning may follow from their opposing interpretations of the first fair use factor, the converse may also be true: They may approach fair use as they do in part because they have different ideas about pictorial meaning. Second, and more broadly, as pictures of all kinds play an ever greater role in legal proof and legal argument, getting decisions right depends on getting pictures right. What judges think pictures mean, and when it should even be part of their job to figure out what they mean, become increasingly important. Andy Warhol Foundation tells us something about this.

Download the article from SSRN at the link.