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A legal dispute that will test the limits of fair use
- tromp 4y agoThis other article recognizes that a picture is worth a thousand words: https://www.latimes.com/opinion/story/2022-09-29/andy-warhol-prince-lynn-goldsmith-copyright-fair-use-supreme-court https://www.latimes.com/opinion/story/2022-09-29/andy-warhol...
- thih9 4y agoIn music production terms, the sample hasn’t been cleared.
- mwenge 4y agoGuy colored in someone else's photo for profit. And doesn't kick any of it back. I also don't suppose his estate lets anyone else sell copies of that image. Seems like having your cake and eating it.
- EdwardDiego 4y agoYeah, I'd hardly call that fair use.
- bagels 4y agoNah, it's like stealing someone else's cake, and writing your name on it with frosting and eating it.
- Huh1337 4y agoMuch more like making the same cake with few differences and calling it yours. The original photo wasn't taken from anybody.
- pessimizer 4y agoOnly to the extent that copying a video file of a film makes me a filmmaker.
- Huh1337 4y agoIf you copy the file, not really. If you make modifications - e.g. a different cut, new scenes, dubbing... Then I'd say you're much closer to being one.
- pessimizer 4y agoIf it comes down to a subjective debate about aesthetics in a courtroom, we've veered into a bad direction.
- phpisthebest 4y agoNo it is not. Copyright infringement is not, can not be considered theft. It is not legal theft, and can not be called that in court. Theft is the act of taking something from someone, if you copy something you by definition have not taken it, you copied it. The original is still there, intact. Taxation is closer to theft than copyright infringement is.
- tiahura 4y agoYou’re taking away their right to control the copying of their work.
- phpisthebest 4y agoI dont consider it a right, I only recognize negative rights as valid natural rights. They may have the legal authority to control it, and may have the legal authority to use government guns to prevent unauthorized copying, but they do not have the moral or ethical right. You must reject natural rights in favor of "who ever have the most guns has the right" method to definition of rights
- throwaway09223 4y agoNo one should have the right to control what others do with information. Theft is a morally defensible issue because it deprives another. Copyright is morally indefensible: There is no deprivation. It is only about controlling others.
- tenebrisalietum 4y agoCopyright is an artificial right created to assist the "progress of the Science and Useful Arts." Is copyright still doing that, or is it creating cartels, being used to tell you what you can see and hear, encouraging patenting obvious things for a "landgrab", and supporting companies who don't really add anything to society other than file lawsuits when they think they can get a payout? For some industries that need a lot of upfront R&D and investment and can be well articulated, copyright/intellectual property should be able to be used to protect that investment, but we went very wrong with the current maximalism with copyright terms being 100+ years for songs that might take less than 1 hour to make, and where things like business processes and "X but with a computer" can get patented.
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- pavlov 4y agoAnnoyingly this Atlantic article doesn't have a picture of the actual pair of works under dispute. Here they are on ArtNet: https://news.artnet.com/art-world/andy-warhol-foundation-loses-lynn-goldsmith-copyright-lawsuit-1955399 https://news.artnet.com/art-world/andy-warhol-foundation-los...
- williamcotton 4y agoThat seems incredibly transformative and especially since it would be part of a collection of many variations on the Prince print and displayed as such, playing with the idea of mass production and celebrity. Warhol’s art is like a meta-layer above celebrity photographs.
- williamcotton 4y agoHere’s an example of Warhol in situ: https://www.diaart.org/exhibition/exhibitions-projects/andy-warholshadows-exhibition https://www.diaart.org/exhibition/exhibitions-projects/andy-...
- acomjean 4y agoI’ve been to DIA beacon (one of my favorite museums). That large scale installation is kinda remarkable but not typical of Warhol’s art I’ve seen in other places.
- williamcotton 4y agoWhich is unfortunate because the kinds of large scale installations at DIA Beacon are how the artists originally conceived of their art! Most of the artists featured there also have some out-of-context work sitting in a wing of another modern museum somewhere.
- arinlen 4y ago
- beardyw 4y agoIt is very clear where the writer's sympathies lie. "Copyright maximalists" versus "Copyright minimalists"? - sorry, no "Copyright reformers". Even as a fan of modern art Andy Warhol has always left me cold. Nothing he did seemed original or said anything. To me seeking permission to use someone else's work is just good manners, regardless of money. That is the point.
- denton-scratch 4y agoI agree that asking permission is just good manners. Thing is, Warhol's entire output is based on copying; not having obtained permission is a large part of the point. I'm no art critic - I'm a phillistine - but I think one way of interpreting his work is as a commentary on copying.
- etrautmann 4y agoSure, but that doesn’t necessarily make it profound or interesting, regardless of its popularity.
- lelanthran 4y agoFound the pictures thanks to the link elsethread. To me, the Warhol images are substantially different - the only common element is Prince's features, and presumably that likeness belongs to Prince, not the photographer. Consider that the photographer isn't the owner of the likeness, and that everything besides the likeness is different, I'd call the Warhol image a substantially different work from the photographer's image. If the ruling comes down on the side of the photographer there's definitely a chilling effect on the creation of new art. Other than the likeness (which belongs to Prince), there are no similarities between the images.
- sbuk 4y agoThe problem here is that the likeness is not what is in dispute, and the copyright of a photograph belongs to the photographer. The ruling, like it or not, is entirely correct. It is plain that the Warhol piece is derivative of the photograph.
- lelanthran 4y agoThe argument is not whether it is a derivative (it clearly is), but whether it is so substantially different that fair use applies. Since there are no similarities other than the likeness, I find it hard to sympathise with the photographer's point of view. The difference between the two images is substantial, to me. As a thought experiment, if this was a painting of a disembodied Eiffel tower, would you say that the photographer of an Eiffel tower photo was ripped off? The subject of the image clearly does not belong to the photographer, all the elements in the photo that do were omitted from the painting.
- sbuk 4y agoIt's not that simple. If, like this image, the framing (or in this case, pose), disembodied or not, were identical, the answer is 'yes' the photographer was 'ripped-off'. To counter your thought experiment and your assertion that "...there are no similarities other than the likeness", try super-imposing the images. The framing is identical. See https://ibb.co/wyMdvvd https://ibb.co/wyMdvvd, posted elsewhere in this thread.
- denton-scratch 4y agoAuthor says: > The English version, like a lot of English beer, is older but not necessarily better. That's unkind. English sterilized bottled or tinned beer isn't "older" than the US equivalent. English cask-conditioned beer is a fresh product, usually made no more than a few days before it's pulled.
- laumars 4y agoI assumed they meant older in terms of heritage. But it’s still an unfair comment given how nice ale is.
- forgotusername6 4y agoAlso given how until very recently American beer had a terrible reputation for being watery rubbish. Most of the American beers that make it overseas are still those watery mass produced products.
- pessimizer 4y agoRice beers.
- bagels 4y agoIn a fairly similar circumstance, Shepard Fairey got sued (but settled) by AP for his 'hope' poster he created by coloring an AP photo of Obama.
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- acomjean 4y agoAcording to Wikipedia the judge told him to settle because he’d likely loose. https://en.m.wikipedia.org/wiki/Barack_Obama_%22Hope%22_poster https://en.m.wikipedia.org/wiki/Barack_Obama_%22Hope%22_post... I think the take away here is you draw someone famous move the hair, rotate the head so the source can’t be determined. If the source can be figured out it’s probably too close.
- bambax 4y ago> Warhol, in contrast, viewed existing content as source material for his own work, which, of course, is what he did with Goldsmith’s photograph. Whether he would sue someone to protect his own work is another question How is it another question? It's the exact same question. It would be interesting to take "orange prince", change the background color to green and print it on mugs & fridge magnets, and see what happens.
- culturestate 4y ago> How is it another question? Because Andy Warhol has been dead for 35 years, while Lynn Goldsmith is very much alive. We know what she would do - since she’s done it - but whether he himself would make the same choice is, as the author says, another question that we have no way to answer.
- giantg2 4y agoDidn't the article say the Warhol curators actually filed the suit first?
- culturestate 4y ago> Didn't the article say the Warhol curators actually filed the suit first? Unless Andy Warhol’s genetically sequenced AI brain is actively making decisions for his estate, I’m not sure this is relevant to the question of what Andy Warhol himself would’ve done.
- giantg2 4y agoNo... but if you follow the context of the comments, it does question the assumption the other commenter made that the other party was the one suing.
- culturestate 4y agoI don't really understand the point you're trying to make here. The author of this piece is essentially saying "we don't know what Andy Warhol would've done if the roles were reversed," which is unassailably true since he was dead for over 30 years before this lawsuit was filed and, to my knowledge, never initiated any similar lawsuits of his own during his life. Regardless of which party moved first, neither party is Andy Warhol and so the original question remains impossible to answer.
- O__________O 4y agoExample of the art: - https://ibb.co/wyMdvvd https://ibb.co/wyMdvvd _________________ Regardless of the outcome, Warhol wins. Art really comes down to two things: content and style. Warhol’s style is definitely defined, it is copied all the time, and odds of a court enforcing the estate’s rights to that style are zero. Regardless of if he’s paid for it, no one will ever be able to take that from him — not even the American Supreme Court. The photograph referenced in the case is not an original work of art. Photographer happened to get access to a celebrity and took a photograph that if combined with 1000s of other photographs by photographers on the same day of the same celebrity would not be distinctive — it literally deserves no protection. Warhol, if alive, regardless of the outcome in court would have produced even more meaningful art based on the experience, which would have enriched the world. The litigant in this case, unless case is thrown out has literally contributed nothing, deserves nothing — and if America rules in their favor, that is exactly what Americans deserve too. The litigant, if remembered, will not be remembered as an artist, but as the troll they are.
- sbuk 4y agoIronically, the image you linked completely disproves your point. The derivative work is identical to the point that it is an obvious copy. Warhol should absolutely have sought permission, especially since he and his estate have profited handsomely from the copy.
- Aerroon 4y agoBut you don't know whether you will profit or not before you make the work. And asking for permission after the fact is too late and might even weaken your fair use case.
- sbuk 4y agoI should retract the part about profiting, but it's there because, undoubtedly, given Prince's iconic status even at the time, and Warhol's reputation, it has a bearing on the outcome. Ultimately the moral thing to do, artist to artist, would have been to seek permission.
- jimnotgym 4y agoStupid thing is, I'm pretty sure he could have licensed the picture for what would have been a trivial sum for Warhol
- Ekaros 4y agoSo could this be applied to tracing of drawn art? That is taking someone else drawing and copying it and then altering some elements.
- autoexec 4y agoI'd consider Warhol's work to be essentially a remix. It's clearly different. It has a very different impact. Even though there's no denying where it came from, I doubt anyone wanting the photograph of Prince would be very happy if you gave them the Warhol version instead. Legally, I expect Warhol to lose, but if he does it'll be because the law is wrong. We absolutely should be allowed to remix one or more existing artistic works into new works, and artists shouldn't be burdened with having to obtain permission to create them (although it's still polite to ask, we shouldn't expect art or artists to always be polite). Hopefully the enforcement of copyright law, the chilling effects it has on artists, and the negative impact that it has on the richness and accessibility of our culture, will eventually encourage people to push for reformation of copyright law to bring it more in line with what it was originally intended to do.
- em-bee 4y agoi don't believe remixing is popular enough for that. personally i think that there is to much junk art out there. (how many hours of video are there on youtube?) and freely allowing remixing will only increase the ratio of junk vs good art. i am not saying that all remixes are junk. it is certainly possible to create good remixes. but if half of all original works are junk, then two thirds of remixes are junk, or something like that. now, i think that an argument can be made that remixes should be allowed to enable that one third of good remixes, and that the good always comes with the bad, and i agree. but i fear many don't, and would rather limit remixing in order to protect original works.
- autoexec 4y ago> i don't believe remixing is popular enough for that. I suspect it would be a lot more popular if people didn't risk getting dragged into a courtroom for doing it. > freely allowing remixing will only increase the ratio of junk vs good art. Remixing has the ability to take bad art and make it better. Most of everything is garbage, but fortunately nobody is forced to be exposed to it all either. People who don't want to spend their time looking outside of narrowly curated selections of available content or what's already gained popularity never have to. All art is built off of previous works, and even if someone creates a work that you hate, someone else may by inspired by that work to make something you love. It doesn't make sense to want to prevent the creation of new creative works out of fear that they might not be "good" in your opinion. Even if, somehow, it did make sense to hinder the creation of new creative works copyright would not be the tool for the job. Copyright already has a job. Copyright is supposed to encourage the creation of new creative works. Sadly it is currently being used to suppress art and artists, which is why it is broken and needs to be reformed. There are some people who want copyright to be as restrictive as possible. Very wealthy and powerful industries for example. They've spent a lot of time and money to try to convince us that copyright should be as restrictive and long lasting as possible, but that's entirely for their benefit and not ours. It's bad for art, it's bad for artists, and it's bad for the public as a whole. They've convinced us to muzzle each other and lock up our own culture so they can increase their profits. The longer it takes us to fix that, the more great art we lose.
- shusaku 4y agoIt’s interesting because Warhol’s style is so iconic, that it almost feels like the rules should be different. You can’t look at the transformation in a vacuum, rather it involves injecting his entire artistic history.
- etrautmann 4y agoI think that’s a bad reason - it essentially says that if you’re famous enough you can get away with whatever you want. The legal precedent of this would serve to protect established artists and punish less well know or up and coming artists.
- theIV 4y agoReading this reminded me of the Kind of Bloop album cover dispute (Miles Davis photo “pixelized”): https://waxy.org/2011/06/kind_of_screwed/ https://waxy.org/2011/06/kind_of_screwed/
- pessimizer 4y agoThanks for posting this, it was an interesting listen. The fact that every track exactly copied the improvisations rather than improvising around the tune (which I did not expect) says something about the merit of the photographer's argument, though. Although it doesn't say any more about it than the fact that the compiler got permission from everyone beforehand. It's a separate work from Kind of Blue only to the extent that a different mix or running the tracks through a distortion pedal would be.
- nonrandomstring 4y agoI have always thought that the fundamental toxic conceit of "Intellectual Property" lies in an obscure fear. And I think this case supports that. To be clear, I'm not touching on legal or economic arguments about payment, rights, control or attribution. These may or may not address the many injustices facing creative people. In the deeper spiritual conversation about ownership and acts of thought, is the spectre of fear; that one has passed one's creative peak. That you'll never make anything as good as that again. From that fear comes the rejection of creativity as an inexhaustible living process, and the urge to commodify, to cast the past in stone and build a fence around it. This case, which is more formally about 'derivative works', is about stopping an art-form from living. For me the antidote to that whole control pathology lies in Kahlil Gibran's "On Children": You are the bows from which your children (creations) as living arrows are sent forth. Real creators have the courage to let go.
- johtso 4y agoI wonder how much of this kneejerk reaction can be rooted back to being taught in school that copying is bad. If someone's copying me, they didn't have to do the hard work I did, and therefor it's immoral, even if it doesn't cause any loss for me.
- bluecalm 4y agoWell the loss you mention is not the only argument. The argument is about future incentives. If anyone is free to copy and fully use my work I will not do some of the work. It's about where the bar is. Most people agree copying someone's else novel and selling it is wrong. Copying parts of it that went into popular culture? Making variations on some characters? Those are more interesting. We just need to find some reasonable rules to balance various incentives.
- nonrandomstring 4y ago> If anyone is free to copy and fully use my work I will not do some of the work. Why? Please read me carefully: I am not accusing you of resentment. But I already excluded issues of finance and recognition in my conditions above. So, other than spitefulness and resentment, what else might possess us to declare that if "anyone is free to copy and fully use" some work, then it's not worth doing? Do you not feel the incredible plenitude and abundance of creativity that urges you toward generosity? Is capitalism responsible for somehow poisoning us with the idea that scarcity is necessary for valuable endeavour?
- jawns 4y agoThe author argues that it would be okay to object to what Warhol has done if it were already well established that what he did was a violation of fair use, but that it can't already be considered well established because otherwise there wouldn't be a lawsuit about it. But there are plenty of instances where clearly established precedents nevertheless require lawsuits for their enforcement.
- giantg2 4y agoHow was the illustration actually created?
- pessimizer 4y agoI think both sides are right, and that this is another example of why copyright is not a good abstraction. It ultimately doesn't make sense because the way we learn how to do things is by imperfectly copying each other. Being successful means to successfully produce a stylish, architectural variation of combinations of fragments of things that you've seen before. Part of the quality judgement on a work is in the nature of its comment on what has come before. This is whether you're putting on a play, designing a skyscraper, or designing the API to a website that keeps track of people's coin collections. If you fail to stylishly or profoundly reference things that have come before, your art is probably bad. edit: and by "I think both sides are right" I mean that I think the pieces of art are completely different to the point of barely resembling one another, just the shape has been retained. I also think that the photographer contributed as much to the work's construction as the artist, and deserves as much of the profit and say in the decision-making about how it is used. And I should use collective pronouns for the artist, because Andy Warhol likely just told somebody to paint on the photograph, and suggested colors, then approved the best of 10.
- tgv 4y agoWhen we learn something to make something (through copying), it's usually not our first idea to sell it. And in this case, Warhol didn't learn anything from Goldsmith. > I think the pieces of art are completely different to the point of barely resembling one another I must have read a completely different article.
- pessimizer 4y agoI'm just going to accept that if I put your urinal in my art gallery, it becomes my fountain. I'm going to accept that because I enjoy it, and because that is the consensus.
- lotsofpulp 4y ago> I think both sides are right, and that this is another example of why copyright is not a good abstraction. It ultimately doesn't make sense because the way we learn how to do things is by imperfectly copying each other. Being successful means to successfully produce a stylish, architectural variation of combinations of fragments of things that you've seen before. Making copyright last 10 years only sort of solves this issue.
- bsenftner 4y agoTwo points: 1) This goes back to the assessment that "the object" is not "The Art", it is the totem that represents the cultural milestone of The Art's creation date and position in cultural time and location, and "The Art" is The Artist proclaiming a vision/perspective they share to others. This is part of the reasoning that allows extremely similar works of art to be designated as unique - they are milestones for different cultural points in history and different intellectual perspectives. 2) 40 years ago, I dated the daughter of a major art collector; he owned the entire collections of a few major artists. He commissioned Warhol do to a Jean Cocteau portrait. Girlfriend's dad expresses anger one day, as Warhol is weeks late on his commission. He takes he daughter with him to Warhol's studio to complain, and upon return expresses utter disgust with Warhol and his process. He returned with the portrait, Warhol made it in 15 minutes upon Dad's arrival and complaint, seemingly with zero forethought. A Cocteau series followed, but GF's Dad was completely uninterested in Warhol after that point, calling him "an advertiser". IMO, Warhol's fame and artistic perspective is exactly like P.T. Barnum, Warhol simply proved “There's a sucker born every minute” is also true for serious fine art. And that transference of suckers existing in the world of Fine Art, transforming their "foolish art" into "Fine Art" is Warhol's Art.
- animitronix 4y agoThe problem is that this is a purely subjective issue, there is no objective test you can apply to determine whether or not something is a fundamentally original work or not. Even within this thread there are disagreements about if Warhol changed the image enough. Eliminate copyright, period.
- RunSet 4y agoThe correct incentive to create intellectual property is intellectual currency. Other incentives are perverse and lead to a private entity capping the public well of knowledge to make their brand of bottled water a more compelling purchase.
- Maursault 4y agoWhat about the model? Presumably Prince gave permission to be photographed (if he was in Goldsmith's studio), and it is always assumed public figures (and anyone) can be photographed in public without permission. But if the work generates significant revenue, how come the model is never entitled to fair compensation? If I was famous, or it seemed inevitable I would be, is there no way to use my natural rights to my likeness and sound of my voice to protect my investment (or privacy)? And of models that do generate significant revenue from their likeness, shouldn't their parents (and grandparents, and estates of great grandparents, etc. ad infinitum) be permitted to sue for a portion of the profits? What about the living subjects of songs? The point is it is hypocritical to screw the model or human inspiration of the art, or owner of an animal or plant or object that is the inspiration, for the benefit of the art and whomever happens to own it. If you paint me and the painting sells for millions, or write a journalistic piece about me and millions of copies are sold, I want a piece of that, and I think I'm entitled to it, but more so, I want to use my copyrights to my likeness and name as legal deterrent to protect my privacy and prevent bad (or good) press. Don't look at me, because you're necessarily reproducing my likeness upside-down twice in both your eyes and in your brain, and if you do look at me, you owe me fair compensation, because once seen I cannot be unseen. And stop reading my comment, because it belongs to me. Don't even think about quoting me without permission under threat of litigation.
- em-bee 4y agoit works that way in film, doesn't it? actors get compensated for their contribution, not just directors and camera-operators, so models in a photo or painting should be compensated just as well.
- ghaff 4y agoProfessional models typically are paid. (And top fashion models can get paid very well.) But that actress probably wants to be on that Vanity Fair cover shoot. And people who are famous in general for things other than modeling also generally want to get their photo taken by well-known photographers. People do have rights to their images being used in marketing and advertising materials. I can't take a photo of you on the street and put it in an ad without your permission. But, no, you don't generally have rights related to me taking your photo in public and making a poster of it or otherwise publishing it. (In the US.)
- rrwo 4y agoWasn't there a similar case with the Obama Hope poster? https://en.m.wikipedia.org/wiki/Barack_Obama_%22Hope%22_poster https://en.m.wikipedia.org/wiki/Barack_Obama_%22Hope%22_post...
- monetus 4y ago> Fairey sued for a declaratory judgment that his poster was a fair use of the photograph. The parties settled out of court in January 2011. In February 2012, Fairey pleaded guilty to destroying and fabricating evidence showing that he had used the photograph; in September, he was sentenced to two years of probation, 300 hours of community service, and a fine of $25,000. Very similar, and more unfortunate for fairey than tfa. He is a graffiti artist, so there is that in regards to illegal art. I've seen him speak to Warhol's archetype before, and he resented the copycat nature of it pretty clearly. I think that is a bit ironic.
- mdeck_ 4y agoThe argument in this piece is a classic example of slippery slope-ism. The question of fair use, or of balancing between copyright maximalism and copyright minimalism, is a so-called line-drawing problem (given a spectrum of cases, deciding where the line of “ok” vs “not ok” should be). The article says that ANY decision in favor of the photographer/against Warhol would basically ruin fair use doctrine. This proposition has barely a hint of truth in it. Especially considering how clever lawyers, SCOTUS justices included, can be in distinguishing one case from the next. I’d hardly be worried.
- 6stringmerc 4y agoOnly fair this would revolve around Prince - keep in mind he ADAMANTLY HATED FAIR USE and wanted it against the law for people to cover his songs without his permission. He said so in interviews. I believe he was very wrong on this point and he would’ve abused copyright worse than the RIAA from beyond the grave. Warhol’s work is barely transformative to me, as in was there tracing paper involved? Or basically the same concept? That’s not transformative that’s derivative. That term applies and it’s not fair use as derivative. These two concepts are rather clear and those who would argue it’s transformative (probably Masnik who is a quack when it comes to fair use) instead of derivative (correct term) are wrong. Just like Masnik and Pharrell who chicken little’d the Blurred Lines ruling that it would kill creativity in music! Huh, how about that? Old Town Road paid for its samples and was a smash hit. So, yeah, welcome to a re-run of some tired absolutist arguments that fall apart.
- ghaff 4y ago>wanted it against the law for people to cover his songs without his permission IANAL but note that covering a song is not fair use. However, with music specifically, it is (normally/always?) possible to pay for a mechanical license [1] which allows a musician to pay to cover a song. The same concept does not apply to many other types of creative works. For example, a playwright can (and many do) refuse to allow their work to be performed by amateur theater companies or to have the content modified. [1] https://en.wikipedia.org/wiki/Mechanical_license https://en.wikipedia.org/wiki/Mechanical_license
- aliqot 4y agoYou are correct however there is a grey area if they claim it is parody. As a cover it is not fair use.
- ghaff 4y agoYes, parody/satire is often a difficult case, e.g. https://constitutioncenter.org/blog/dr.-seuss-in-the-land-of-fair-use-lawsuits https://constitutioncenter.org/blog/dr.-seuss-in-the-land-of... Just playing off some well-known characters or some defining characteristic of a work doesn't necessarily constitute fair use although judges seem to often disagree on the particulars.
- aaron695 4y ago
- jccalhoun 4y agoMy gut reaction looking at it is to judge the quality of the art but that isn't really the point. We shouldn't only defend "good" art. So that does get into the fact that fair use is a "doctrine" and so it harder to quantify. Would anyone confuse the photograph with Warhol's version? No. Warhol's look was so distinct that regardless of the photo used, it still looks like a "Warhol." So on that grounds I would say it is a transformative work and therefore fair use.
- jcranmer 4y agoOne of the amici in the case has a poignant example of how insane fair use. In their brief (https://www.supremecourt.gov/DocketPDF/21/21-869/227996/20220615133335172_42544%20pdf%20Parker%20br.pdf https://www.supremecourt.gov/DocketPDF/21/21-869/227996/2022...), on page 28, they have the example in the case in question (which the 2nd Circuit ruled was not fair use), as well as another example from another case... which the 2nd Circuit ruled was fair use, and reaffirmed that it was fair use in the question. Despite the transformations in the two cases being almost identical. Madness.
- brudgers 4y agoThis article leaves out the relevant facts. [1] See, http://copyrightblog.kluweriplaw.com/2022/05/09/andy-warhol-foundation-v-goldsmith-the-supreme-court-revisits-transformative-fair-uses/ http://copyrightblog.kluweriplaw.com/2022/05/09/andy-warhol-... After Prince's death, Vanity Fair Magazine purchased an image rights license to run the Warhol painting on it's cover. The original photograph was, at the time, also available for license. Goldsmith argued that Warhol's work was commercially competing with their original photograph. Note that the context was not space on gallery walls but the cover of a magazine, and there was not a question of whether the cover of magazine constitutes fair use...I mean the Warhol foundation would almost certainly have sued if Vanity Fair had used the Warhol image without a license. To put it another way, the case is not about Fair Use directly, but about competing image rights. I mean, since nobody is going to confuse a magazine cover with an original Warhol, for the Warhol Foundation's fair use claim to stand, then Vanity Fair's cover would be sufficiently transformative to constitute fair use. Not that there'd be anything wrong with that. Warhol's been dead 25 years. Seems like enough time for the works to be in the public domain, to me. YMMV. [1]: The Atlantic seems to have given up on journalism in recent years...Jobs bought it in 2017.
- joshu 4y agoThe competition you mention is directly part of fair use, specifically the fourth factor: Effect of the use upon the potential market for or value of the copyrighted work. https://www.copyright.gov/fair-us https://www.copyright.gov/fair-us
- brudgers 4y agoI am not a lawyer. My understanding is that lowering the value of the original work is an argument against a particular use being fair use. Which is to say that Fair Use is not intended to further commercial competition. And that the purpose of copyright is to forestall commercial competition. Of course I could be wrong.
- williamcotton 4y agoDo images of soup cans or thoughts of fifteen minutes of fame come to mind when you’re viewing the Goldsmith photo? Both Warhol’s works and Vanity Fair can be seen as celebrations of, well, celebrity vanity. What I’m getting at is that it seems Vanity Fair chose the Warhol for the cover because it means something very different than the original photograph and that Warhol’s baggage could easily be what the editors needed for the intended effect.
- codazoda 4y agoI don’t know who’s right here but copyright constantly stops me from creating art. I would probably only hang it on my own wall or sell 25 copies in a cheap zine but I’m terrified someone will sue me. So, I don’t create art that I envision. Maybe the world is better for it; maybe it’s worse. One of my recent art projects was to create a series of images in the CGA palette of the 1980’s but using images of modern technology. It would probably end up very similar to this example. I’ve spent tens of hours trying to perfect the look I wanted but I abandoned the idea because capturing my own images is impossible in some cases that I can imagine.
- MichaelCollins 4y agohttps://i0.wp.com/itsartlaw.org/wp-content/uploads/2018/12/andywarholsuitfeat.jpg https://i0.wp.com/itsartlaw.org/wp-content/uploads/2018/12/a... Fair use? I think yes. Was Andy Warhol an overrated hack? I think also yes.
- Animats 4y agoThis is an argument over not fair use, but transformative use. How much transformation of an old thing has to take place before it's a new thing? That's very much an issue now, because ML systems have become very good at transforming old things into somewhat similar new things. Classically, such transformation was a lot of work. A standard art-school exercise is to hand-copy a classic painting. Possibly with variations. Because that's quite a bit of work, it generally hasn't raised serious copyright issues. Now, though, it's very easy. Much music litigation revolves around this. There are only so many note patterns that sound good. Someone has generated all 69 billion possible 8-note melodies and released them into the public domain, just to mess with any claims of melody originality.[1] Images are a bigger space, though. [1] https://www.theatlantic.com/technology/archive/2020/02/whats-the-point-of-writing-every-possible-melody/607120/ https://www.theatlantic.com/technology/archive/2020/02/whats...
- gnicholas 4y agoYeah I was disappointed that the article didn't even mention the fair use factors, or discuss how the upcoming case would affect some but not others of them. For reference, these are the four factors: • the purpose and character of your use • the nature of the copyrighted work • the amount and substantiality of the portion taken • the effect of the use upon the potential market
- 6stringmerc 4y agoThe whole conclusion is putting forward a speculative chilling effect about a case that doesn’t matter to anybody but attorneys and hacks. It’s a tired argument and it’s not only lazy but easy to disprove.
- WalterBright 4y agoYeah, should probably give up on copyrighting sequences of notes. Copyright the arrangements instead. An awful lot of what makes a song good is the arrangement.
- jraph 4y ago
- powera 4y agoAmerica is a declining empire, and it appears to be a law of history that declining empires establish increasingly cumbersome regimes of copyright regulation. So I must assume that the side wanting to restrict fair use further will win.
- diebeforei485 4y agoI think things are at the point where having more clarity would be more helpful than having a bunch of settled cases with no clear precedent, because they were too expensive to litigate.
- 1vuio0pswjnm7 4y agoIf the title chosen by The Atlantic author is so objectionable that HN submitter/moderator must change it completely, then why not find a different source with a more agreeable title on the same topic. There is no shortage of articles on this case from a variety of sources. Alternatively, HN could include both the author's title and the "HN title" in its HTML but only display the HN title. When I extract URLs from HN HTML I tend to ignore the titles and this is one reason why.^1 I am interested in objective identifiers. HN can change the title, but it cannot change the URL. Someone searching HN by title for an article from a particular publication may not be able to find it as easily as they should. Similarly, someone browsing all submissions from a particular source, looking for a particular title may miss it because the original title has been editorialised. 1. When I retrieve www search results into a custom SERP format, I actually drop everything except the URL. I never see "objectionable" titles.