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Saturday, May 20, 2023

The Absence of Justice Breyer

On Thursday, the Court issued its opinion in the Andy Warhol copyright case. FWIW, I think that the majority erred in its interpretation of the first fair use factor. I sometimes think that cases like this are viewed differently when the artist's estate (read "money-grasping distant relatives") are the party of interest rather than the actual artist. If Warhol was still alive, would he have lost? 

But what I want to highlight in this post is that Warhol was the first copyright case in 30 years decided without Justice Breyer. He was the most knowledgeable copyright person on the Court, due in part to his academic work. His absence is telling, I think, both in the Court's treatment of the issue and in the unnecessarily harsh tone of the opinions.

Though I have no way of knowing, I also wonder whether Justice Breyer's absence may explain the deteriorating relationships among the Justices. He was a senior and avuncular person who liked to broker compromises. You can't easily replace the social function that sort of person fulfills. Granted, things were not perfect while he was there, but I'm not sure who on the current Court can be the "glue" that holds that group together. My work on Bushrod Washington indicates that this is sort of Justice is quite important for the health of the Court as an institution.     

Posted by Gerard Magliocca on May 20, 2023 at 09:33 AM | Permalink


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