6 ms·

Annoyingly 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/

by pavlov 4y ago

Annoyingly 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 ago
That 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 ago
  Here’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 ago
    I’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 ago
      Which 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
  - williamcotton 4y ago
    Art is in the eye of the beholder. I choose to accept Warhol’s gaze and I find it rewarding. His exposition means something different to me than the original photograph.
    - chrismcb 4y ago
      "art is in the eye of the beholder" had nothing to do with copyright. That fact that it means something different to you is not relevant. Actually it is, and it implies that copyright is still necessary.
    - williamcotton 4y ago
      And this is the reason for fair use! It is quite clear to me that Warhol is presenting these images in a profoundly different manner than the original. A copyright regime without such an allowance would deprive people like me of an aesthetic experience. You have a choice with someone like Warhol. You can feel something or you can feel nothing. And yes, most of this is a personal choice, a matter of faith, a matter of letting yourself enter into the world of the artist. Or don’t! Just look at this art and say “this is terrible” and “this is theft” or any number of other negative emotions.
      - mhb 4y ago
        And if Warhol and his fans value the experience, they can pay for the use of the image.
      - ethanbond 4y ago
        It’s really odd to frame such a dispute through the lens of whether it gives you enjoyment or not. A stolen Van Gogh would give the thieves’ house guests plenty of aesthetic pleasure otherwise unavailable as well.
- grumbel 4y ago
  How is that transformative? It's just a copy of the photo with some level adjustments and background colors. Takes about a couple of seconds to reproduce in your favorite photo editor.
  - mindslight 4y ago
    The photo itself is "just" a copy of a physical scene with some level adjustments. Would have taken about one tenth of a second to produce with your favorite camera. Copyright is framed such that the subjects of photographs generally have no claim to the resulting image. Why should the photographer's claim be absolute? (And just for reference, I say this appreciating the work that goes into taking a good photo)
  - williamcotton 4y ago
    I find it transformative because I know about Warhol, his art practices, and the context with which he worked. These works were made in one of his “factories” and were always a part of a larger series. The works were not made in a computer. They were very large screen prints. To me how they were made and why they were made are just as important as the finished product. One of my interpretations of Warhol is that celebrities might as well be produced on a factory line!
    - eCa 4y ago
      > I find it transformative because I know about Warhol, his art practices, and the context with which he worked. In other words, you feel that the Warhol piece is transformative because it was Warhol that made it and not because of the inherent properties of the work itself?
      - williamcotton 4y ago
        It isn’t because Warhol made it (in fact, his employees probably did most if not all of the work) but the context. It means something different to make many large silkscreen prints than it does to apply some filters in Photoshop. The ends don’t justify the means, it’s the journey not the destination, etc, etc. I understand that when presented with a digital image that the original context is missing so I’m not upset with anyone who has another perspective!
- HillRat 4y ago
  The problem, legally speaking, is that this is almost the exact same fact pattern as Rogers v. Koons, in that the photograph itself was not being commented on, so parodic fair use isn’t a valid defense.
dgs_sgd 4y ago
the fact that an article taking Warhol’s side omits the actual pictures is telling
- boomboomsubban 4y ago
  Or the article being printed in a magazine doesn't want to pay the republishing cost for both artworks.
  - mminer237 4y ago
    A newspaper copying works for commentary or criticism on said works is like textbook fair use though.
    - ghaff 4y ago
      It is. It's also works in the middle of a legal dispute. I'd guess The Atlantic's lawyers nixed their use "out of an abundance of caution." If you get pulled into a legal dispute--even if you think you're on firm ground--you'll still be out a lot of money for lawyers.
      - coredog64 4y ago
        Presumably, Atlantic has staff lawyers that would handle any legal case.
        ghaff 4y ago
        Companies mostly don't just have spare lawyers sitting around waiting for work to come in. Furthermore, if something were to go to court, outside counsel would likely get involved in any case. So, yes, there are costs associated with law suits even if you have some in-house staff.
    - boomboomsubban 4y ago
      Wouldn't use of the works be fair use, but use of the photographs of the works require publishing rights?
linuxftw 4y ago
From this article: > He compared Warhol’s distinctive silkscreen aesthetic to filmmaker with an easily identifiable style turning a book into a movie—that doesn’t mean the film is no longer a derivative work. I find that argument compelling.
- fastball 4y ago
  I don't find that argument compelling at all. Going from a book to a movie is a wildly different (and more involved process) than going from a photo to a silk screen.
- masswerk 4y ago
  So what about turning a person (Prince) into a photograph, by the "mere" use of a technical apparatus? It's an interesting aspect that we do not allow a model or actor to own the specific posing and/or acting, as this would imply considering any media capturing the performance as derivative work. There's an enormous bias in the system, right from the beginning.
  - linuxftw 4y ago
    I agree, but under the present system of copyright, the work is infringing.
    - masswerk 4y ago
      I think, this can't be handled on a general or universal basis. E.g., in the given case, I don't think that anybody would find a rough line tracing infringing. So, how comes that it's infringing, when the lines are filled by a black ink? Moreover, it's not a perfect copy, aspect and format are different (sufficiently to make this a legal museum copy), texture and color are different, even the outlines don't match. Even more, it seems that it wasn't initially apparent to even Lynn Goldsmith herself that Warhol's portrait was based on this photo. Where's the exact border between "inspired by" and "an infringing copy"? This case is even more interesting, as the photographer argues that the Warhol's image directly competed with the original photo for a cover of Vogue and that the magazine picked Warhol's image to license. But, this is also a strong indication of the genuine artistic value of Warhol's work/version, since there was a reason that this was picked by the editors over the other one. There is a semantic difference, which was introduced by Warhol.
slim 4y ago
it's also informative. warhol foundation, was the one suing the photographer
fortran77 4y ago
This is similar to the case, which was successful, over the use of a stolen photograph for Barack Obama's campaign. The artist involved, Shepard Fairey, actually was sentenced for his involvement in the case: https://www.phaidon.com/agenda/art/articles/2012/september/10/shepard-fairey-admits-lying-about-obama-poster/ https://www.phaidon.com/agenda/art/articles/2012/september/1...
- morisy 4y ago
  To clarify the above, the criminal charges came in not over copyright but over destruction of evidence and false statements: > However, criminal proceedings began when it transpired that Fairey lied in the earlier case, destroyed documents and submitted false images. In a statement published following the proceedings, the artist said that he 'accepted full responsibility for violating the Court's trust by tampering with evidence during my civil case with the Associated Press,' before going onto argue that he still believed he had a strong Fair Use case. Trademark infringement cases can be ruinous, especially without insurance, but it’s civil not criminal.
  - fortran77 4y ago
    > Trademark infringement cases can be ruinous, especially without insurance, but it’s civil not criminal. This was a copyright case, not a trademark case. And if the FBI warnings at the beginning of VHS tapes are to be believed, you can face criminal charges. https://www.law.columbia.edu/news/archive/obama-hope-poster-lawsuit-settlement-good-deal-both-sides-says-kernochan-center-director https://www.law.columbia.edu/news/archive/obama-hope-poster-...
dclowd9901 4y ago
I can’t believe their editor let this article ship without the images. That’s 101 stuff.

by pavlov 4y ago

williamcotton 4y ago

That 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 ago
Here’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 ago
  I’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 ago
    Which 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
- williamcotton 4y ago
  Art is in the eye of the beholder. I choose to accept Warhol’s gaze and I find it rewarding. His exposition means something different to me than the original photograph.
  - chrismcb 4y ago
    "art is in the eye of the beholder" had nothing to do with copyright. That fact that it means something different to you is not relevant. Actually it is, and it implies that copyright is still necessary.
  - williamcotton 4y ago
    And this is the reason for fair use! It is quite clear to me that Warhol is presenting these images in a profoundly different manner than the original. A copyright regime without such an allowance would deprive people like me of an aesthetic experience. You have a choice with someone like Warhol. You can feel something or you can feel nothing. And yes, most of this is a personal choice, a matter of faith, a matter of letting yourself enter into the world of the artist. Or don’t! Just look at this art and say “this is terrible” and “this is theft” or any number of other negative emotions.
    - mhb 4y ago
      And if Warhol and his fans value the experience, they can pay for the use of the image.
    - ethanbond 4y ago
      It’s really odd to frame such a dispute through the lens of whether it gives you enjoyment or not. A stolen Van Gogh would give the thieves’ house guests plenty of aesthetic pleasure otherwise unavailable as well.
grumbel 4y ago
How is that transformative? It's just a copy of the photo with some level adjustments and background colors. Takes about a couple of seconds to reproduce in your favorite photo editor.
- mindslight 4y ago
  The photo itself is "just" a copy of a physical scene with some level adjustments. Would have taken about one tenth of a second to produce with your favorite camera. Copyright is framed such that the subjects of photographs generally have no claim to the resulting image. Why should the photographer's claim be absolute? (And just for reference, I say this appreciating the work that goes into taking a good photo)
- williamcotton 4y ago
  I find it transformative because I know about Warhol, his art practices, and the context with which he worked. These works were made in one of his “factories” and were always a part of a larger series. The works were not made in a computer. They were very large screen prints. To me how they were made and why they were made are just as important as the finished product. One of my interpretations of Warhol is that celebrities might as well be produced on a factory line!
  - eCa 4y ago
    > I find it transformative because I know about Warhol, his art practices, and the context with which he worked. In other words, you feel that the Warhol piece is transformative because it was Warhol that made it and not because of the inherent properties of the work itself?
    - williamcotton 4y ago
      It isn’t because Warhol made it (in fact, his employees probably did most if not all of the work) but the context. It means something different to make many large silkscreen prints than it does to apply some filters in Photoshop. The ends don’t justify the means, it’s the journey not the destination, etc, etc. I understand that when presented with a digital image that the original context is missing so I’m not upset with anyone who has another perspective!
HillRat 4y ago
The problem, legally speaking, is that this is almost the exact same fact pattern as Rogers v. Koons, in that the photograph itself was not being commented on, so parodic fair use isn’t a valid defense.

dgs_sgd 4y ago

the fact that an article taking Warhol’s side omits the actual pictures is telling

boomboomsubban 4y ago
Or the article being printed in a magazine doesn't want to pay the republishing cost for both artworks.
- mminer237 4y ago
  A newspaper copying works for commentary or criticism on said works is like textbook fair use though.
  - ghaff 4y ago
    It is. It's also works in the middle of a legal dispute. I'd guess The Atlantic's lawyers nixed their use "out of an abundance of caution." If you get pulled into a legal dispute--even if you think you're on firm ground--you'll still be out a lot of money for lawyers.
    - coredog64 4y ago
      Presumably, Atlantic has staff lawyers that would handle any legal case.
      - ghaff 4y ago
        Companies mostly don't just have spare lawyers sitting around waiting for work to come in. Furthermore, if something were to go to court, outside counsel would likely get involved in any case. So, yes, there are costs associated with law suits even if you have some in-house staff.
  - boomboomsubban 4y ago
    Wouldn't use of the works be fair use, but use of the photographs of the works require publishing rights?

linuxftw 4y ago

From this article: > He compared Warhol’s distinctive silkscreen aesthetic to filmmaker with an easily identifiable style turning a book into a movie—that doesn’t mean the film is no longer a derivative work. I find that argument compelling.

fastball 4y ago
I don't find that argument compelling at all. Going from a book to a movie is a wildly different (and more involved process) than going from a photo to a silk screen.
masswerk 4y ago
So what about turning a person (Prince) into a photograph, by the "mere" use of a technical apparatus? It's an interesting aspect that we do not allow a model or actor to own the specific posing and/or acting, as this would imply considering any media capturing the performance as derivative work. There's an enormous bias in the system, right from the beginning.
- linuxftw 4y ago
  I agree, but under the present system of copyright, the work is infringing.
  - masswerk 4y ago
    I think, this can't be handled on a general or universal basis. E.g., in the given case, I don't think that anybody would find a rough line tracing infringing. So, how comes that it's infringing, when the lines are filled by a black ink? Moreover, it's not a perfect copy, aspect and format are different (sufficiently to make this a legal museum copy), texture and color are different, even the outlines don't match. Even more, it seems that it wasn't initially apparent to even Lynn Goldsmith herself that Warhol's portrait was based on this photo. Where's the exact border between "inspired by" and "an infringing copy"? This case is even more interesting, as the photographer argues that the Warhol's image directly competed with the original photo for a cover of Vogue and that the magazine picked Warhol's image to license. But, this is also a strong indication of the genuine artistic value of Warhol's work/version, since there was a reason that this was picked by the editors over the other one. There is a semantic difference, which was introduced by Warhol.

slim 4y ago

it's also informative. warhol foundation, was the one suing the photographer

fortran77 4y ago

This is similar to the case, which was successful, over the use of a stolen photograph for Barack Obama's campaign. The artist involved, Shepard Fairey, actually was sentenced for his involvement in the case: https://www.phaidon.com/agenda/art/articles/2012/september/10/shepard-fairey-admits-lying-about-obama-poster/ https://www.phaidon.com/agenda/art/articles/2012/september/1...

morisy 4y ago
To clarify the above, the criminal charges came in not over copyright but over destruction of evidence and false statements: > However, criminal proceedings began when it transpired that Fairey lied in the earlier case, destroyed documents and submitted false images. In a statement published following the proceedings, the artist said that he 'accepted full responsibility for violating the Court's trust by tampering with evidence during my civil case with the Associated Press,' before going onto argue that he still believed he had a strong Fair Use case. Trademark infringement cases can be ruinous, especially without insurance, but it’s civil not criminal.
- fortran77 4y ago
  > Trademark infringement cases can be ruinous, especially without insurance, but it’s civil not criminal. This was a copyright case, not a trademark case. And if the FBI warnings at the beginning of VHS tapes are to be believed, you can face criminal charges. https://www.law.columbia.edu/news/archive/obama-hope-poster-lawsuit-settlement-good-deal-both-sides-says-kernochan-center-director https://www.law.columbia.edu/news/archive/obama-hope-poster-...

dclowd9901 4y ago

I can’t believe their editor let this article ship without the images. That’s 101 stuff.