The Constitution Formerly Known as …the Constitution
Scotus just heard oral arguments in the celebrated “Prince Case” involving a photographer’s claim that the Warhol Foundation and its namesake infringed her copyright in her now famous Prince photo, not reprinted here, right, but you can look up the photo and Warhol’s Orange Prince on your phone in a few seconds. There were several lighter moments during oral argument, like Justice Thomas’ admission to being, or formerly known as, a Prince fan. Some might say the public face of the Court hasn’t had much to smile about lately, as the weight of controversial cases like Dobbs, the leak and public criticism take a toll.
Still, while public opinion changes like weather, as the hard work of deciding cases and controversies goes on, the Constitution has a way of enduring purple rain, having weathered two plus centuries of storms including a Civil War. Sure, the Constitution is an oldish text, but it has always been more than that. Changing context relentlessly rains down on text, day after day, year after year, decade by decade. Context always changes; text doesn’t (unless amended). The First Amendment’s text hasn’t changed since 1791, but America’s free speech context has, the free-speaking “Artist Formerly Know as Anything” just one more example.
Change, or in legal parlance “transformative use,” is the central issue in the Prince Case. Did Warhol’s artwork transform the photograph it used; did the famously multiforming imagination of Andy Warhol create someting new, without copying the photo and infringing the copyright? If this sounds like a trivial art debate around those formerly known as Warhol and Prince, think again. The issue of “fair use” of copyrighted visual imagery is very high stakes, big money stuff, when you consider today’s pervasive market and corporate use of visuals, images, logos, symbols, branding and so on in our Visual/Digital Age. After all, even a grade school kid knows how to transform a snapshot in a snap.
Will Scotus create something new — a new standard of what’s “fair use” of visual imagery?
Change assumes limitless forms and disguises, whether it be overturning legal precedent, changing legal interpretations, changes on the Court, in popular culture, or in tech’s power to morph.
We have an enduring Constitution formerly known as the Constitution not because it has never changed, but because it has.