Art is not truth; art is a lie that enables us to recognize truth.^[1]

The law is the least artistic medium ever devised by humankind. After all, the law is society’s super ego to art’s id, and the legal system is intended to speak the truth, or at least a plausible facsimile thereof. As Justice Holmes famously observed, “It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.”^[2] It remains as true today as it was a century ago. The courts will not—cannot—understand art. It’s not in their nature … [please read below the rest of the article].

Image credit: Victoria Pickering via Flickr / Creative Commons

And yet, art conquers all. Anything can be an artistic medium, if you will it to become one. So why not the law? A few legal scholars have shown the way, or at least a range of different ways.^[3] If legal scholarship can be art, why not a legal brief? And what better case than one accusing the art world’s greatest appropriation artist of plagiarism? Accordingly, I wrote an amicus brief for plagiarists in Andy Warhol Foundation v. Goldsmith, which the United States Supreme Court will hear in its Fall 2022 term.

The Art Business & the Business Artist

The story of Warhol v. Goldsmith begins in 1981, when Lynn Goldsmith created a photograph of Prince. In 1984, Vanity Fair paid Lynn Goldsmith $400 for a license to use her photograph as an “artist reference” for an illustration that would be published in the magazine.

Lynn Goldsmith, [Prince] (1981)

The artist was Andy Warhol, who used Goldsmith’s photograph as the basis for 16 artworks, one of which was published in Vanity Fair, illustrating an article about Prince. As usual, Warhol heavily cropped the photograph, using only Prince’s face, and made a silkscreen, which he used to create the paintings.

Andy Warhol, PO 50.544 (1984) (reproduced in Vanity Fair)

Andy Warhol, Prince Series (1984) (the other 15 paintings in the series)

When Prince died in 2016, Vanity Fair reprinted the Warhol illustration on the cover of an issue commemorating his death. Goldsmith objected that reprinting the photograph wasn’t covered by the original license, and threatened to sue Condé Nast, the publisher of Vanity Fair, for copyright infringement.

When the Andy Warhol Foundation learned of Goldsmith’s threat, it filed a declaratory judgment action in the United States District Court for the Southern District of New York, asking the court to find that Warhol’s use of Goldsmith’s photograph to create the Prince Series was a noninfringing fair use. Goldsmith responded by countersuing the Andy Warhol Foundation for copyright infringement.

The district court granted summary judgment to the Andy Warhol Foundation, holding that Warhol’s use of Goldsmith’s photograph was fair use.^[4] But the Second Circuit reversed, holding that Warhol’s use of the photograph was not fair use, because it was insufficiently transformative, among other things.^[5] The Supreme Court granted the Andy Warhol Foundation’s petition for a writ of certiorari, and the case is currently pending review.^[6]

The Plagiarist’s Brief

As is usual in high-profile cases, many different people have already filed amicus briefs in Warhol v. Goldsmith, and more are likely to come. Art law and copyright law professors have filed amicus briefs in support of Warhol, as well as artists. Others will surely file amicus briefs in support of Goldsmith.

I wrote a plagiarist’s brief, supporting neither party. The brief consists entirely of sentences plagiarized from other sources, none of which are identified or acknowledged in any way. I didn’t edit the sentence I copied in any way, with the exception of deciding how much of the sentence to copy. And I didn’t compose anything myself. The argument section of the brief is pure collage, and the rest is copied from a template.

For better or worse, I didn’t actually file this brief with the Supreme Court, because I missed the filing deadline for briefs in support of neither party. Plagiarizing is surprisingly time consuming, and far more difficult than conventional writing. It’s probably for the best. I doubt “my” brief would have been helpful to the court. Far more likely annoying.

What does it mean? The writer is dead, that’s for you to decide.

^[1] David Shields, Reality Hunger 82 (2010).

^[2] Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903). But see Rebecca Curtin, The Art (History) of Bleistein, Journal of the Copyright Society (forthcoming) (arguing that Fanny Holmes’s artistic practice influenced Holmes’s opinion in the case).

^[3] See, e.g., Lon L. Fuller, The Case of the Speluncean Explorers, 62 Harvard Law Review 616 (1949); Derrick Bell, The Space Traders (1992); Yxta Maya Murray, Draft of a Letter of Recommendation to the Honorable Alex Kozinski, Which I Guess I’m Not Going to Send Now, 25 Michigan Journal of Gender & Law 59 (2018).

^[4] Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 382 F. Supp. 3d 312 (S.D.N.Y. 2019).

^[5] Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 992 F.3d 99 (2d Cir. 2021); Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 11 F.4th 26 (2d Cir. 2021) (rehearing the case after Google LLC v. Oracle America, Inc., 141 S. Ct. 1183 (2021)).

^[6] See Petition for a Writ of Certiorari, Andy Warhol Foundation v. Goldsmith, No. 21-869 (U.S. Sup. Ct. Dec. 9, 2021).

No. 21-869

In the

Supreme Court of the United States

Andy Warhol Foundation for the Visual Arts, Inc.,
Petitioner,

v.

Lynn Goldsmith and Lynn Goldsmith, Ltd.,
Respondents.

On Petition for a Writ of Certiorari to the United States Court of Appeals for the Second Circuit

Brief Of Plagiarists As Amici Curiae In Support Of Neither Party

Brian L. Frye
Counsel Of Record
University Of Kentucky
David Rosenberg College Of Law
brianlfrye@gmail.com

Table Of Authorities

Every sentence in this brief is plagiarized.

Interest Of Amici Curiae

Brian L. Frye is the Spears-Gilbert Professor of Law at the University of Kentucky College of Law. He believes that plagiarism is love.

Argument

I start with a rhyme as I enter your mind. What has been will be again, what has been done will be done again. The original is something imaginary. There is nothing new under the sun.

This is a total inversion of the relationship between original and copy. Or the difference between original and copy vanishes altogether. Instead of a difference between original and copy, there appears a difference between old and new. We could even say that the copy is more original than the original, or the copy is closer to the original than the original.

We might also say that originals preserve themselves through copies. But suppose copying is what makes us human—what then? More than that, what if copying, rather than being an aberration or a mistake or a crime, is a fundamental condition or requirement for anything, human or not, to exist at all?

Writing is a dance that involves imitation, inspiration, and originality. But all things considered, writerly disapproval of plagiarism has remained remarkably consistent over the centuries—really, even over millennia. In academia the immorality of plagiarism is one of the few principles everyone converges on.

Tilting at the plagiarism windmill seems a worthy quest. We all need something to do before the Knight comes.  If academics were more concerned about spreading ideas than rewarding authors, plagiarism would not be the moral panic that it is today. But of course, academia is not simply about efficiently producing knowledge as a public good but also about properly crediting the producers.

Drawing from these sources as if draining water from springs and fitting them to my own purposes I find my command of writing made more fluent and easy; and trusting in such authors I set about to compose new teachings. Thus since I saw that such beginnings on their part were laid out for my planned undertaking, I set out to progress further by taking from them.

Who Owns This Text?

Plagiarism is a very ancient art. The word “plagiarism” derives from Latin roots: plagiarius, an abductor, and plagiare, to steal. By “plagiarism” I mean the culpable reuse of earlier texts, customarily described in terms of stealing, in which a person wins false credit by presenting another’s work as his own. An example of plagiarism would be copying this definition and pasting straight into a report.

Plagiarism has been with us since the birth of language and art. For as long as there have been words to be read, there has been someone there copying the passages. About two thousand years ago when writing was much younger, some writers became so enamored of their expository labors that they resented those who copied their works. These gentlemen, on the whole a rather eloquent group, complained bitterly and cast about for ways to inhibit the temptation to copy and especially to deter copiers from taking credit for the works of others.

Originality is a relative concept in literature. As writers from T. S. Eliot to Harold Bloom have pointed out, ideas are doomed to be rehashed. This wasn’t always regarded as a problem. Roman writers subscribed to the idea of imitatio: they viewed their role as emulating and reworking earlier masterpieces.

A time is marked not so much by ideas that are argued about as by ideas that are taken for granted. The character of an era hangs upon what needs no defense. Literary borrowing was commonplace in the seventeenth century—Shakespeare borrowed freely from many of his contemporaries, as did Milton. Friendly borrowing remained common in the eighteenth century, and Coleridge, Wordsworth, and Southey all borrowed from one another, sometimes even publishing work under each other’s names. It wasn’t until the Romantic era, which introduced the notion of the author as solitary genius, that originality came to be viewed as the paramount literary virtue.

The term plagiarism has had few critics. In this skeptical age, finding any unexamined concept is something of a novelty. Plagiarism shares a curious semantic feature with the term pornography. Even though we cannot agree on specifics, “We know it when we see it.” Plagiarism was and remains a murky offense, “best understood not as a sharply defined operation, like beheading, but as a whole range of activities, more like cooking.” Either we move on to a coherent notion of plagiarism, or suffer what we have.

The world will not run short of definitions of plagiarism. Scholars and literari whip them out when the need arises and the spirit moves, almost by reflex. There is almost no end to the inventory of felonious parallels that the literary and scholarly worlds have fashioned to protect their interests. It follows that most definitions of plagiarism have been more or less deliberately plagiarized from earlier sources. This is the primal irony of plagiarism, but only the first of many.

Now what does all this have to do with rentiership as an economic feature of academia? A sign that academia has become more protective of its own rentier tendencies is its increasing obsession with plagiarism. Plagiarism is ultimately about syntax fetishism, the heart of copyright, which confers intellectual property rights on the first utterance of a particular string of words or symbols, even though it could have been uttered by any other grammatically competent person under the right circumstances.

Of course, “rentiers” do not present themselves that way at all. They see themselves as protecting an asset whose value might otherwise degrade from unmonitored use. Citations, properly arranged, function as currency that one pays to be granted a lease on a staked out piece of intellectual property. Indeed, if academics were more concerned about spreading ideas than rewarding authors, plagiarism would not be the moral panic that it is today. But of course, academia is not simply about efficiently producing knowledge as a public good but also about properly crediting the producers.

The economic story that I am telling may not be the entire explanation for the rise in the value ascribed to originality. The important distinction to make when considering how plagiarism could have existed before copyright and the modern book trade is the one between ownership as a category of legal and commercial property rights and ownership as a symbolic and moral category. No man but a blockhead ever wrote except for money. But does anyone write just for the money? Laurence Sterne, the plagiarist author of Tristram Shandy, said he wrote “not to be fed but to be famous.” Now, of course, he is. It worked.

The Walrus and the Carpenter

Why does the plagiarist offend us? Plagiarism is not a crime. If the plagiarist reprints a larger chunk of someone else’s work than a judge finds permissible under the vague doctrine of fair use, he may be violating copyright laws. Judges will sometimes call copyright infringers “plagiarists” though there is no concealment. This loose usage erases what is distinctive about plagiarism.

At the same time, copyright is revered by most established writers and artists as a birthright and bulwark, the source of nurture for their infinitely fragile practices in a rapacious world. Plagiarism and piracy, after all, are the monsters we working artists are taught to dread, as they roam the woods surrounding our tiny preserves of regard and remuneration.

But plagiarism itself is more an ethical offense than a legal one. This means that the penalties for plagiarism are customarily informal social stigmas or formally sanctioned, institutionally enforced but still extralegal punishments. Any academic is licensed and even encouraged to name and shame anyone else as a plagiarist, regardless of whether the plagiarized party cares that her words or ideas have been appropriated without permission.

If an offense there be, is it because the plagiarist has committed some form of original sin? It borders on the quaint to employ such a term as sin. Our society doesn’t much believe in sin anymore, and if there is anything left of it, the mores of plagiarism is a good place to look. If one espouses the theory of plagiarism as theft, then dire punishment becomes acceptable, even requisite. Explanations are not admissible and intentions of no consequence. The stigma of plagiarism never seems to fade completely, not because it is an especially heinous offense, but because it is embarrassingly second rate; its practitioners are pathetic, almost ridiculous.

Despite the fact that plagiarism has always been taboo, readers are often more forgiving of historical offenses. The problem was, no one really liked it. The purchaser of a novel is interested not merely, if at all, in the identity of the producer of the physical tome (the publisher), but also, and indeed primarily, in the identity of the creator of the story it conveys (the author). And the author, of course, has at least as much interest in avoiding passing off (or reverse passing off) of his creation as does the publisher. Each of us thinks that our contribution to society is unique and so deserves public recognition, which plagiarism clouds.

The Burial of the Dead 

In one respect the charge of plagiarism is a marvelous one to make. Someone, somewhere will find any source dependency in any degree to be plagiarism. More than that, it does not take a vigorous hunt to find a definition that will fit the alleged offense. It is typical of plagiarism charges that often the significance of what was used is totally ignored in favor of the fact that it was used. The problem is that there seems to be an almost total lack of context for understanding what it means to copy, what a copy is, what the uses of copying are.

There is a common contention that a person charged is innocent until proven guilty. But the individual charged with plagiarism frequently is obliged to demonstrate innocence by proving the negative side of the case. The public is an examiner, but an absent-minded one. The mere charge of plagiarism can be and often is as devastating as plagiarism proved. The label is the academic equivalent of the mark of Cain. It is chiefly in poetry that plagiarism is allowed to pass; and certainly, of all larcenies, it is that which is least dangerous to society.

The idea that ideas can be plagiarized is not a good idea. Yet no one has suggested that ideas and “apt phrases” be excluded from the grounds of plagiarism. The scene of a crime, too, is deserted; it is photographed for the purpose of establishing evidence. For the first time, captions have become obligatory. And it is clear that they have an altogether different character than the title of a painting.

Protecting the manner of expression cannot be allowed to become the tail that wags the dog. In modern commercial society, which places the stamp of personality on goods both physical and intellectual for economic reasons unrelated to high culture, a verdict of plagiarism is pronounced without regard to the quality of the plagiarized original or, for that matter, of the plagiarizing copy. Readers are no more interested in plagiarism as such than eaters are. They are interested in the quality of the reading experience that a work gives them. Must we disillusion these readers?

What is an Author?

The image of literature to be found in ordinary culture is tyrannically centered on the author. Nevertheless, these aspects of an individual, which we designate as an author (or which comprise an individual as an author), are projections, in terms always more or less psychological, of our way of handling texts. Secondly, the “author-function” is not universal or constant in all discourse. Even within our civilization, the same types of texts have not always required authors. We can easily imagine a culture where discourse would circulate without any need for an author.  Discourses, whatever their status, form, or value, and regardless of our manner of handling them, would unfold in a pervasive anonymity.

I am not certain that the consequences derived from the disappearance or death of the author have been fully explored or that the importance of this event has been appreciated. To be specific, it seems to me that the themes destined to replace the privileged position accorded the author have merely served to arrest the possibility of genuine change. What matter who’s speaking, someone said, what matter who’s speaking. It is language which speaks, not the author. Literature has always been a crucible in which familiar themes are continually recast. Time gives poetry to a battlefield.

In that sense, then, all culture is plagiarism. For substantially all ideas are second-hand, consciously and unconsciously drawn from a million outside sources, and daily used by the garnerer with a pride and satisfaction born of the superstition that he originated them; whereas there is not a rag of originality about them anywhere except the little discoloration they get from his mental and moral calibre and his temperament, and which is revealed in characteristics of phrasing.

As if there was much of anything in any human utterance, oral or written, except plagiarism!  When aestheticians say that every great artist is a great critic, this is what they mean: great artists know what is worth using, and they use it well. An original work is simply something that is different enough from some existing work that it could not be confused with it.

Yet, what of a context that questions the concept of a work? What, in short, is the strange unit designated by the term, work? What is necessary to its composition, if a work is not something written by a person called an “author”? Where a work had the duty of creating immortality, it now attains the right to kill, to become the murderer of its author. Thus, the distinction between author and public is about to lose its basic character. The difference becomes merely functional; it may vary from case to case. At any moment the reader is ready to turn into a writer.

The uniqueness of a work of art is inseparable from its being embedded in the fabric of tradition. This tradition itself is thoroughly alive and extremely changeable. It takes a thousand men to invent a telegraph, or a steam engine, or a phonograph, or a telephone or any other important thing—and the last man gets the credit and we forget the others. He added his little mite—that is all he did. These object lessons should teach us that ninety-nine parts of all things that proceed from the intellect are plagiarisms, pure and simple; and the lesson ought to make us modest. But nothing can do that.

What Drives People to Plagiarize?

This song has nothing tricky about it. The making of a plagiarist can be hard to distinguish from the making of a writer. A spy under questioning by the enemy is in a state surpassing dread because he knows that he must sooner or later tell the truth. All the plagiarist risks is his reputation and a lawsuit. Yes, trust them not: for there is an upstart crow, beautified with our feathers, that with his tiger’s heart wrapped in a player’s hide, supposes he is as well able to bombast out a blank verse as the best of you.

To say that someone is not a plagiarist is a feeble compliment. Art may be bad, good or indifferent, but, whatever adjective is used, we must call it art, and bad art is still art. To an ever greater degree the work of art reproduced becomes the work of art designed for reproducibility. If the self is written and rewritten by previous texts, how is it possible not to write other people’s works? Explicit, full attribution of all sources is impossible and not even desirable.

If plagiarists are not sinister and Machiavellian, then why do they do it? This question gets asked every time there’s a fresh revelation of plagiarism, whether it’s in the literary world, journalism, or academia. There’s never a satisfying answer, but there are at least lots of guesses, often somewhat at odds with each other: laziness or panic, narcissism or low self-esteem, ambition or deliberate self-sabotage.

Perhaps in a general sense we are all dependent on the thoughts and images of others. It is obviously insufficient to repeat empty slogans: the author has disappeared; God and man died a common death. Rather, we should reexamine the empty space left by the author’s disappearance.

There is no intellectual enterprise that is not ultimately pointless. Most artists are brought to their vocation when their own nascent gifts are awakened by the work of a master. That is to say, most artists are converted to art by art itself. It chooses you, so to speak. In the end, there is nothing said that has not been said before. History, the mother of truth!—the idea is staggering.

Fame is a form—perhaps the worst form—of incomprehension. When culture becomes nothing more than a commodity, it must also become the star commodity of the spectacular society. Movie stars who have led adventure-packed lives are often too egocentric to discover patterns, too inarticulate to express intentions, too restless to record or remember events. Ghostwriters do it for them. After all, you may justly call what you buy yours.

And those who came earlier seem to me to have opened up, not to have taken away what can be said. It matters much whether you approach exhausted material or ground that has been tilled. The latter increases day by day, and things discovered do not get in the way of new discoveries. Furthermore, the person who writes last has it best: he finds words prepared for use that, when handled differently, acquire a new aspect. If I have seen further it is by standing on the shoulders of giants.

The desire to be original and the desire to be successful are not wholly compatible. Originality, I fear, is too often only undetected and frequently unconscious plagiarism. Those who do not want to imitate anything, produce nothing. The kernel, the soul—let us go further and say the substance, the bulk, the actual and valuable material of all human utterances—is plagiarism. All writing is in fact cut ups. A collage of words read heard overheard. Our most original compositions are composed exclusively of expressions derived from others.

You can not will spontaneity. But you can introduce the unpredictable spontaneous factor with a pair of scissors. A cento is a collage-poem composed of lines lifted from other sources—often, though not always, from great poets of the past. In Latin the word cento means “patchwork,” and the verse form resembles a quilt of discrete lines stitched together to make a whole. The word cento is also Italian for “one hundred,” and some mosaic poems consist of exactly 100 lines.

Writing a cento may be a kind of extension of the act of reading, a way to prolong the pleasure. All writing is in fact cut ups. A collage of words read heard overhead. What else? And your way, is it really your way? What, moreover, can you call your own? The house you live in, the food you swallow, the clothes you wear—you neither built the house nor raised the food nor made the clothes. The same goes for your ideas. You moved into them ready-made.

The plagiarist does not play fair. To discover in the course of research some engaging detail we know can be put into a story where it will do some good can hardly be classed as a felonious act—it is simply what we do. Writers are naturally drawn to the color and the music of this English idiom we are blessed to have inherited. When given the choice we will usually try to use the more vivid and tuneful among its words. One could write a book consisting entirely of unacknowledged passages from other writers, provided one took only a small amount from each work.

As if there was much of anything in any human utterance, oral or written, except plagiarism! Immature poets imitate; mature poets steal; bad poets deface what they take, and good poets make it into something better, or at least something different. The kernel, the soul — let us go further and say the substance, the bulk, the actual and valuable material of all human utterances — is plagiarism. For substantially all ideas are second-hand, consciously and unconsciously drawn from a million outside sources.

Every artist takes. What else do we do but endlessly recycle stories? It’s a process that’s been happening since the ancient Greek tragedians first recycled the stories of Homer for the Festival of Dionysus, or Shakespeare tapped into the almost bottomless well of the Chroniclers, or novelists decided they wanted to write historical fiction. The fact is, it’s not what you take but what you do with it that counts.

The bees plunder the flowers here and there, but afterward they make of them honey, which is all theirs. Even so with the pieces borrowed from others. We must make them our own. Truth and reason are common to everyone, and no more belong to the man who first spoke them than to the man who says them later. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.

Aren’t citations useful for the reader? Sometimes. But let’s not pretend that the reader’s needs play a substantial role in the mandate of the plagiarism police: outrage against plagiarists is about protecting idea-creators, not readers. Indifference to source allows us to assimilate what we read, what we are told, what others say and think and write and paint, as intensely and richly as if they were primary experiences. It allows us to see and hear with other eyes and ears, to enter into other minds, to assimilate the art and science and religion of the whole culture, to enter into and contribute to the common mind, the general commonwealth of knowledge. This sort of sharing and participation, this communion, would not be possible if all our knowledge, our memories, were tagged and identified, seen as private, exclusively ours. Memory is dialogic and arises not only from direct experience but from the intercourse of many minds.

Information Wants to Be Free

Is there such a thing as a resolution to a plagiarism story? If any “originality” is involved, it consists in the ability to pour old wine into new bottles such that it tastes different, if not better. The individual author isn’t all that important. In a world which really is topsy-turvy, the true is a moment of the false.

This was once revealed to me in a dream. People who don’t work never get bored. When an artist uses a conceptual form of art, it means that all of the planning and decisions are made beforehand and the execution is a perfunctory affair. We must expect great innovations to transform the entire technique of the arts, thereby affecting artistic invention itself and perhaps even bringing about an amazing change in our very notion of art.

We may be entering the twilight of plagiarism. Ideas improve. The meaning of words participates in the improvement. Plagiarism is necessary. Progress implies it. It embraces an author’s phrase, makes use of his expressions, erases a false idea, and replaces it with the right idea. There is no reason to accept a second rate product when you can have the best. And the best is there for all.

It is perhaps difficult for epistemologists to comprehend that we might normally inhabit an artworld: life as one big exhibition. It will become easier in the future. I made these little verses, another carried off the reward. Thus, bees, you do not make honey for yourselves. If anyone has, as need arises, turned such a thing to his own use, it should rightly be ascribed to him as his own instead of theft. When a thing has been said and well said, have no scruple: take it and copy it. In this case, which is the original and which the copy?

Let us not mince words: the marvelous is always beautiful. anything marvelous is beautiful, in fact only the marvelous is beautiful. I have only made up a bunch of other men’s flowers, providing of my own only the string that ties them together. This is what constitutes their melancholy, incomparable beauty.

Do not all the bold descriptions we have given amount to the definition of prayer? What art has been granted a dream more poetical and more real at the same time! Only the most high-minded persons, in the most perfect and mysterious moments of their lives, should be allowed to enter its ambience. If this is plagiarism, we need more plagiarism.

Gosh, I wish I could do it all over.

Conclusion

For the foregoing reasons, do what thou wilt shall be the whole of the law.

Respectfully submitted,

Brian L. Frye
Counsel Of Record
University Of Kentucky
David Rosenberg College Of Law

July 22, 2022

Categories: Articles

Tags: Andy Warhol, Andy Warhol Foundation, Brian L. Frye, Lynn Goldsmith, plagiarism, plagiarist, Prince, Warhol v. Goldsmith