ABSTRACT
Most commentary about Andy Warhol Foundation for the Visual Arts, Inc v Goldsmith focuses on fair use. This Essay highlights the significance of a different feature of the recent Supreme Court decision: the Warhol Court’s treatment of the doctrine of aesthetic non-discrimination. Famously articulated in Bleistein v Donaldson, this doctrine holds that judges’ opinions of artistic merit should not affect their evaluations of copyright matters. But in the century since it was decided, many courts – such as the Second Circuit in its Warhol opinion – expanded this holding to a broad caution against judges analyzing works of authorship at all. This Essay makes three claims about this brief but consequential aspect of Warhol. First, it explains why the Court’s critique of the Second Circuit’s use of Bleistein correctly reads the century-old opinion by Justice Holmes. Second, it shows that the Court is right not only as a matter of reading precedent but also as a matter of necessity, because numerous provisions of the Copyright Act require judicial assessment of the content (though not the quality) of works of authorship. Finally, this Essay expresses hope that the Warhol Court’s reading of Bleistein will correct the harmful exceptionalist notion that judges are intrinsically bad at artistic analysis, thereby creating more space for courts to engage with the works that form the subject matter of copyright law.
Fagundes, Dave, Who Is the Bad Art Judge? Aesthetic Nondiscrimination in Andy Warhol Foundation v Goldsmith (December 28, 2023), New York University Law Review Forum, 2023.
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