Is Supreme Court Justice Clarence Thomas hiding a raspberry beret under those judicial robes?
The conservative judge made a surprising admission during oral arguments in a copyright case on Wednesday, setting up a hypothetical in which he was “a Prince fan, which I was in the ’80s.”
That comment prompted liberal Justice Elena Kagan to interject, “No longer?”
And Thomas responded to laughter: “So only on a Thursday night.”
The case involves a photographer who is suing the Andy Warhol Foundation arguing that the artist, who died in 1987, breached her copyright by using her 1981 portrait of the pop star for a series of images Warhol created for Vanity Fair in 1984. (The magazine had paid photographer Lynn Goldsmith $400 to use her portrait as an “artist’s reference.”)
The case could have big implications across media about the “fair use” of existing artistic images and works, and what might be owed to copyright owners from later artists who create follow-on works. The Warhol Foundation’s attorneys argue that the pop artist’s alterations to the original photo are “transformative” and add new depth and meaning.
During the oral argument, Thomas asked the lawyer representing the Andy Warhol Foundation if he could be sued for making a huge poster of the late artist’s orange-tinted Prince artwork but adding the words “Go Orange” in order to wave at basketball games at Syracuse University, whose nickname is the Orange.
When the lawyer, Roman Martinez, responded that the foundation was unlikely to sue an individual fan, Thomas responded that his motivation was commercial, not personal: “Oh, no, no. I’m going to market it to all my Syracuse buddies.”
Justice Sonia Sotomayor soon joined the light-hearted discussion, jokingly noting, “My colleague Justice Thomas needs a lawyer.”
It’s worth pointing out that Thomas is a graduate of Massachusetts’ College of the Holy Cross and Yale Law School with no known ties to Syracuse.
The court is expected to issue its ruling on the case, Andy Warhol Foundation v. Goldsmith, by June.
