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Supreme Court rules Andy Warhol’s Prince art is copyright infringement
- oidar 3y agoI think minority stance was incorrect in this case. Transformation - perhaps a touch, but definitely not major transformation. I'd rather see the court do this kind of case for really transformative art.
- rvz 3y agoTLDR: Andy Warhol's artwork was NOT transformative and the 'fair use' argument falls flat. Ask for permission and get a license for that photograph or image. Sorry generative AI grifters. It's time to ask for permission to train on copyrighted artworks and images for commercial purposes and this will almost certainly be licensed. Even OpenAI already knew this with Shutterstock. Stability AI on the other hand...
- shadowgovt 3y agoHow does this ruling impact generative AI?
- genocidicbunny 3y agoIt makes it harder to prove that what the AI generated is transformative work.
- nickthegreek 3y agoHow so? This just looks similar to the Obama photo situation. You look at the original and then you look at the artist rendition and in both cases they line up pretty closely to the original. The transformative work being done by the AI is way more than this unless the artist intentionally is trying to preserve the original closely. In both these cases, the artist is making decisions to not be that transformative from the original. Also, I can do this all day long if I am not selling my output.
- kbenson 3y agoI haven't really been following the AI stuff that closely, but in a similar conversation last week someone was noting that while a lot of the model creators said the original images aren't there, in some/many cases they actually are and if you ask correctly the exact (or close to it) image comes out the other end. I don't know the details, or enough to have a real opinion on it, but it seems like if you have a system that you can request something from and an input image comes out mostly intact on the other end, that shares a lot of similarities to a database and lossy compression. If that's actually possibly, then I have questions about how much of an original is used in the output even if it's changed, and at what point it becomes transformative. Again, I'm not sure about most of this, and don't even have the source comment I'm remember, much less their source for their assertions, but I do have lots of questions and suspicions, if indeed what we think we know about these models based on prior statements ends up being wrong in some cases as we learn more.
- lesuorac 3y agotransformative doesn't refer to modifications done to the work of art. Transformative refers to how the works of art are used. For example, if I make a compilation of every single Barry Bonds homeruns the clips of the games are copyrighted but the video I produced isn't a substitute for an actual baseball game so the resulting work is transformative even if none of the video footage has been altered.
- ghaff 3y agoMaybe. I wouldn't bet on it if the copyright holders of the clips objected.
- lesuorac 3y agoI think legally you'd be fine [1]. But certainly the copyright holders would succeed in getting your video taken down from YouTube since it wouldn't be a DMCA request. (Fair Use doesn't mean a private company must host your video). [1]: https://www.citizen.org/article/a-guide-to-fair-use-in-posting-soccer-video-clips/ https://www.citizen.org/article/a-guide-to-fair-use-in-posti...
- ghaff 3y ago(IANAL) The argument is probably something along the lines of this ruling raising the bar on making a fair use argument for transformative use (which would presumably be one of the defenses for using copyrighted data for training). In practice, I have to believe this is a sufficiently specific case and has sufficiently closely related precedence (like the Obama Hope poster) that I'm not sure this says much with respect to generative AI.
- cpymchn 3y agoCategory error: generative AI isn't making a copy. Says so in the name.
- bitwize 3y agoThe threshold in law is "substantial similarity", not an exact copy.
- cpymchn 3y ago"In the style of..." is not substantially similar enough IMO. I think a better foundation for generative AI regulation is the moral rights of the artist [1], not copyright law. But the courts will take years, if ever, to get that far. 1. https://en.wikipedia.org/wiki/Moral_rights#In_the_United_States https://en.wikipedia.org/wiki/Moral_rights#In_the_United_Sta...
- freejazz 3y agoGeez - we went from being a category error, to something you disagree with based upon your opinion... what next?
- anticensor 3y agoYou still have a different type of category error: The creator, AI in this case, lacks legal personhood, hence cannot be considered the legal author nor hold copyright.
- freejazz 3y agoThat's not a category error, its a trivial characterization based upon the marketing term used to advertise the kind of service and is not a legal argument in the slightest.
- mjr00 3y agoThis ruling has next to nothing to do with generative AI. If anything, the fact that there was enough ambiguity that it took 35+ years for a court to decide that someone tracing a photograph was, in fact, not fair use is a good indication that it will be very hard to use current laws to stop outputs of generative AI that have been trained on copyrighted material.
- lesuorac 3y agoI think parts of the ruling has a lot to do with generative AI. The big problem for Warhol is that people paid for the image he produced instead of paying for the original photograph for use as a reference to Prince's likeness. So the works were for the same purpose. If you use generative AI to produce a 3d State of Liberty for your video game I doubt you'll end up losing a case by a photographer of the Statue of Liberty because the purposes are actually different. But if you are using generative AI of stock imagery to produce stock imagery I think you're going to run into the same problem as Andy Warhol's foundation did.
- judge2020 3y agoBased off of current copyright statutes, nothing about generative AI creating stock photos by being trained on stock photos would violate copyright law; only if it was substantially similar to an existing work and was not transformative of that existing work. Just because the AI (read: the human) has seen work doesn't mean that creating a photo with the same subject and even with the same framing and techniques is inherently infringement.
- lesuorac 3y ago> only if it was substantially similar to an existing work and was not transformative of that existing work That's a giant only. If the resulting image is nothing close to the source image then yes I agree you're unlikely to lose any copyright case. But its the cases where they are similar that anybody cares. I pick the word "stock imagery" for a specific reason; I do no see a way that you can have a transformative use of stock imagery since its use is so vague. And a reminder (with a quote this time) transformative does not refer to the production it refers to the use. If you painted every single stock imagery you could find and let companies license those paintings (or pictures of your paintings) instead of using the source stock imagery I believe you'd lose a copyright lawsuit. > [1] AWF contends that the Prince Series works are “transformative,” and that the first fair use factor thus weighs in AWF’s favor, because the works convey a different meaning or message than the photograph. But the first fair use factor instead focuses on whether an allegedly infringing use has a further purpose or different character [1]: https://www.supremecourt.gov/opinions/22pdf/21-869_87ad.pdf https://www.supremecourt.gov/opinions/22pdf/21-869_87ad.pdf
- madsmith 3y agoExcept that generative AI is actually generative. It isn’t recreating a work by shape and line and form. It is using the knowledge gained from studying many works to determine when given a random pixel, what color pixel should it and its neighbors transform into to best fit the requested parameters. Stable Diffusion starts with random noise and attempts to denoise that random information into a coherent picture. That it has in the past learned that certain types of pictures should have say something resembling a watermark is just it being incredibly dumb but ultimately no different than it learning that horses should have something resembling manes or people’s hands having something resembling fingers.
- freejazz 3y agoYou are just wordsmithing around the value of, in this case, the orange stencil-work, when you say "AI is actually generative"
- km3r 3y agoTraining the model can still be argued fair use. Using the model to recreate copyright works is not.
- dragonwriter 3y agoGenerative AI isn’t doing anything at all like what Warhol was doing here, and there is nothing new in the terms of broad rule in the decision as to what is “transformative” that would signal much as to how the arguments relative to training and use of generative AI might play out.
- anigbrowl 3y agoYou were doing so well at the start, and then you had to generalize it in a stupid way.
- gedy 3y agoI still find it very ironic that this is about a photograph of a different artist who is also now deceased. These are both riffing off Prince's image.
- bitwize 3y agoBy posing for the photo, Prince was implicitly allowing his image to be used for that photo. Goldsmith got permission; Warhol didn't.
- gedy 3y agoI agree, but commenting on the "transformative" aspect. Warhol was much more transformative of Prince's face.
- lesuorac 3y agoTo avoid copying all over the place: https://news.ycombinator.com/item?id=35992109 https://news.ycombinator.com/item?id=35992109 Transformative refers to how the work of art is used not produced.
- ghaff 3y agoAbsent contracts and limitations to the contrary, at least in the US, once an image of you is out there, your rights are pretty limited unless it's used in either a commercial (esp. advertising) context or in a misleading/defamatory way. I know there are stronger protections in some of Europe although I'm not sure how effective those rules are in practice.
- freejazz 3y agoThere is no issue with Prince's permission for this case... at all. Full stop.
- bitwize 3y agoGoldsmith got implicit permission from Prince, so she's in the clear. Warhol didn't get permission from Goldsmith. Were Prince still alive, though, he might have made himself a plaintiff in this case -- we're talking about the man who had his lawyers send Weird Al Yankovic a threatening letter forbidding him from even looking at him.
- colesantiago 3y agoI predicted this would happen and a license fee and permission is pretty much the way forward for now. https://news.ycombinator.com/item?id=34425811 https://news.ycombinator.com/item?id=34425811 It seems to be that this case will be used in future litigations (Stability vs Getty, Stability vs Artists, etc.) https://stablediffusionlitigation.com/ https://stablediffusionlitigation.com/ https://www.reuters.com/legal/getty-images-lawsuit-says-stability-ai-misused-photos-train-ai-2023-02-06/ https://www.reuters.com/legal/getty-images-lawsuit-says-stab...
- blakesterz 3y agoKagan and Roberts dissented. Seems like that would be an unusual duo to end up on the same side of a 7-2 ruling. https://www.supremecourt.gov/opinions/22pdf/21-869_87ad.pdf https://www.supremecourt.gov/opinions/22pdf/21-869_87ad.pdf Since a few commenters have said this is common I'll just add... as far as I can tell this has not happened before. I could very well be wrong, but it looks like this is not a common occurrence. I would be fine with being proven wrong. "It is important to note that dissenting in a 7-2 decision is a rare occurrence. In fact, it has only happened 21 times since 1953." I really don't know, I just found it interesting.
- eqmvii 3y agoIt’s not that unusual at all. The justices rule all over the map, but only certain hot button political issues expose the high level partisan divide. Most of their cases aren’t guns and abortion and corporate speech.
- local_crmdgeon 3y ago"Guns and abortion and corporate speech" aren't even the cool cases. These are. You just don't hear about cases like this because you're supposed to be angry at the world, instead of appreciate how cool it is.
- yieldcrv 3y agoUnsubscribe from partisan news and your partisan friends and you’ll find thats not unusual at all
- nonethewiser 3y agopartisan news is redundant
- yieldcrv 3y agoyep, non-partisan news is an oxymoron. you really have to go to the source, read/skim the supreme court cases for yourself. then you'll find pretty much all the news is disingenuous and most people are parroting things based off that.
- Lacerda69 3y agoCopyright is backwards, does not help artists and is holding back humanity as a whole. Imagine the renaissance of art, science and culture we would have if we abolished copyright tomorrow. We have the technology. Please get rid of it. What redeeming quality does copyright have in light of the intellectual damage and huge amount of unnessecary bureaucracy it causes?
- colesantiago 3y agoCopyright gets destroyed after the artist is dead + 70 years, then it is public domain. So it is either: Use public domain works Use the artists work but ask for permission or pay license Change the laws on copyright length. (how many lawyers can you pay for?) Wait for the work to enter in the public domain (unlikely anyone will do this for any work made today)
- deleted 3y ago[deleted]
- FigmentEngine 3y agoMickey Mouse has been extended to ~95 years so far
- colesantiago 3y agoYou will be soon free to use this one without Disney's permission. https://cdn.arstechnica.net/wp-content/uploads/2018/12/SteamboatWillie-mickey-mouse.jpg https://cdn.arstechnica.net/wp-content/uploads/2018/12/Steam... But not this one. https://cdn.arstechnica.net/wp-content/uploads/2019/01/Standing-Picture-Of-Micky-Mouse1-1280x1289.jpg https://cdn.arstechnica.net/wp-content/uploads/2019/01/Stand...
- JohnFen 3y agoWhile I think copyright law is currently overbearing and harmful and desperately needs fixing, I don't agree that the concept of copyright itself is broken. The legitimate role of copyright is to encourage artists to allow public access to their works. Without some form of protection, a lot of work would never be available to most people because keeping it hidden will become the only protection artists have.
- ryandrake 3y ago> “The Court here uses unambiguous language to eliminate an oft-used point raised in fair use analysis. Simply adding ‘some new expression, meaning or message’ does NOT, in and of itself, create a transformational use. Period. It seems weird to have judges and lawyers critiquing artwork like this. Seems like a bit of an increase in the scope of their jobs. Isn't "transformational" like beauty, in the eye of the beholder?
- ethbr0 3y agoThe US Congress passed copyright laws. Reality raises questions on edge cases. The courts clarify edge cases. In this case, the courts' clarification just happens to be on "What sort of artistic transformation is sufficient to qualify for that copyright exception?" This essentially clarifies that pasting (adding) something on top of a copyrighted work isn't sufficient. (Notably, there are other exclusions besides transformation that a work could also qualify for)
- freejazz 3y agoHave you read the opinion at all? It's not what they are doing
- say_it_as_it_is 3y agoSotomayor didn't consider the artwork transformative enough to warrant fair use. The Supreme Court is stacked with idiots across the political spectrum.
- tetromino_ 3y agoSotomayor's argument, as I understand it, is that transformation into a direct replacement of the original work in a given commercial context is not fair use. So it's not fair use to transform a photo of Prince for the purpose of illustrating magazine articles about Prince, where the original, untransformed photo could have illustrated the article equally well. But presumably it would be fair use to transform a photo of Prince for the purpose of illustrating magazine articles about the history of pop art, where using the original photo would be inappropriate.
- freejazz 3y ago[flagged]
- graderjs 3y ago[flagged]
- freejazz 3y agoI'm not telling you to be silent because I disagree with you. I'm not sure how that couldn't be more clear. It's because you have no idea what you are talking about and you are doing any reader a disservice.
- dang 3y agoCould you please make your substantive points thoughtfully and respectfully? You've been breaking the site guidelines pretty badly in this thread, unfortunately. On HN, if you know more than others, the thing to do is share correct information from what you know. Then the rest of us can learn something. If you don't want to do that or don't have time, that's ok, but then please just chalk it up to the internet being wrong about everything and let it go. Responding with putdowns or swipes just makes everything worse—especially if you actually do know more, because then the correct view gets associated with bad behavior, which hurts everybody. (I've written about this in the past in case it's helpful: https://hn.algolia.com/?dateRange=all&page=0&prefix=true&sort=byDate&type=comment&query=truth%20discredit%20by:dang https://hn.algolia.com/?dateRange=all&page=0&prefix=true&sor...). If you wouldn't mind reviewing https://news.ycombinator.com/newsguidelines.html https://news.ycombinator.com/newsguidelines.html and taking the intended spirit of the site more to heart, we'd be grateful.
- drewbeck 3y agoFolks should read the article – the infringing act was NOT the creation of the art, it was the attempt by the Andy Warhol Foundation to license the image to Conde Nast. > Here, the specific use of Goldsmith’s photograph alleged to infringe her copyright is AWF’s licensing of Orange Prince to Condé Nast. As portraits of Prince used to depict Prince in magazine stories about Prince, the original photograph and AWF’s copying use of it share substantially the same purpose. Moreover, AWF’s use is of a commercial nature. Even though Orange Prince adds new expression to Goldsmith’s photograph, in the context of the challenged use, the first fair use factor still favors Goldsmith. That's not to say this doesn't touch on larger issues, or that this ruling won't have wider-ranging implications, but the text of the case makes it specifically about the licensing, not the creation of the work itself.
- colesantiago 3y agoSo pay and get a license from the original artist?
- anigbrowl 3y agoNo creation of art is infringing, you can rip other artists off in your home to your heart's content. It's the commercialization of your output that creates infringement - when you license or sell the work. Warhol's version of the Prince photographs might not be infringing if the original were sold, but that's really for a jury to decide. There isn't a legal test that can articulate the exact difference between a derivative and transformative work. Warhol had interesting ideas but I consider him more of an impresario than an artist; his real creativity was that of his public persona, and many of his most famous paintings seem to me to be merely decorative (multiple tinted reproductions) or imitative (Campbell's soup can, which was just Duchamp in the kitchen).
- csours 3y agoI am not a lawyer, I am not your lawyer, this is not legal advice. > No creation of art is infringing Unfortunately it is very tempting to read section 107 as you might read other text and assume that any one of the four parts of the test can protect you, but that is NOT how the law has been applied. You can be found to be infringing even without commercial exploitation. Each of the four parts of the test is evaluated and weighted with the other parts. https://www.copyright.gov/title17/92chap1.html#107 https://www.copyright.gov/title17/92chap1.html#107 > "Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."
- m3kw9 3y agoHow much $ can she get from Andy?
- graderjs 3y agoAgree. It's probably too much to speculate that she bedded some of her subjects, and definitely too far out to posit she would have sued them for relationship issues if she could have, right? So in lieu of that...we can sue the dead for relicensing a (much better and more interesting) derivative of our boring photograph (no offence to photogs in general, I think they're great, and photog is art, can be. but doesn't mean you can't have classless ones like her tho, or how she's acting here). Taking this all the way to the SC to sue Warhol estate? Has to be a money play. Just, no class. I guess that's what you do when you make works that you can't sell for that much anyway, you "make up the difference" to what you think you're entitled, with a suit. Probably she was never happy that she only got 400 for the license and Warhol got 10K for the editorial work. This is her "revenge" to "make it right." I don't like any of this: Warhol made art but this person's using the court to prosecute about that. Ugh...just so ugly.
- seydor 3y agoAlso importantly, the SC upheld section 230 again
- zerocrates 3y agoThey didn't, they punted on their 230 case. The Twitter case they decided on the grounds that Twitter didn't "aid and abet" under the meaning of the specific antiterrorism statute at issue, and the Google case they sent back down without deciding anything on 230. It's certainly better for section 230 than an overturn, but they didn't uphold it either.
- pentagrama 3y agoIf Warhol had added a ridiculous mustache I think he would have gotten away with it in this ruling
- archontes 3y agoProbably not, as the L.H.O.O.Q [1] is the literal textbook example of a derivative work, which would fall under the explicit protection of copyright. [1] https://en.wikipedia.org/wiki/L.H.O.O.Q https://en.wikipedia.org/wiki/L.H.O.O.Q.
- revolvingocelot 3y agoWhile it's not precisely congruent, this makes me think of Prince's single "Breakfast Can Wait" [0] whose artwork features Dave Chappelle dressed up as Prince, a still taken from a Chappelle's Show sketch (y'know, "fuck yo' couch"?). By my reading of TFA, this use of Chappelle's image-of-Prince wasn't exactly transformative. Chappelle reportedly took this in chuckling stride, as the wiki link relates, but one wonders if any negotiation, legal or otherwise, took place. [0] https://en.wikipedia.org/wiki/Breakfast_Can_Wait https://en.wikipedia.org/wiki/Breakfast_Can_Wait
- cvoss 3y agoThe oral argument for this case was an entertaining one to listen to. I mean, relative to others. The whole thing is so understated that little stuff stands out a lot. First we get this exchange, in which EK interrupts T to make a joke. They try really hard not to interrupt each other normally. Her timing is perfect. [0] > T: Let's say I'm a Prince fan---which I was in the 80s--- > EK: No longer? [T is derailed for a solid ten seconds.] [T proceeds to lay out a hypothetical in the first person, where he is the one being sued.] That hypothetical is brought up again later, this time by SS, with another joke for T. [1] > SS: I think my colleague, Justice Thomas, needs a lawyer. And I'm gonna provide it. Then we get a great show from my favorite SCOTUS lawyer, Lisa Blatt, who always tells it like it is, as she challenges my favorite justice, EK, on her reading of a lower case. [2] > Blatt: I think that's very unfair to 3 members of Article III [aka 3 judges] who three times said meaning and message is relevant--- > EK: ---3 members?---3? > Blatt: what they---3 times---what they---yes [Laughter from R, I think.] > Blatt: ---well, it's---I find it insulting to the 2nd Circuit panel... [R still laughing.] ... > Blatt: I mean I could just keep reading you quotes, but you know how to read a decision as best as I do, but on the very same page they're yakking about, it says... ... > Blatt: They had a district court opinion that went, completely: This is a Warhol, and Oh my god it's a Warhol!, so it's transformative by definition. And the 2nd Circuit said, No, we're not gonna do that here. [0] https://www.youtube.com/watch?v=RR1jnZCVbNM&t=1953 https://www.youtube.com/watch?v=RR1jnZCVbNM&t=1953 [1] https://www.youtube.com/watch?v=RR1jnZCVbNM&t=2200 https://www.youtube.com/watch?v=RR1jnZCVbNM&t=2200 [2] https://www.youtube.com/watch?v=RR1jnZCVbNM&t=3087 https://www.youtube.com/watch?v=RR1jnZCVbNM&t=3087
- 1lint 3y agoMy feeling is that Andy Warhol's creation entailed greater effort, and certainly greater artistic expression, than Goldsmith's act of snapping a photograph of Prince. I guess what I really take issue with is that taking a photograph entitles one to copyright protection, when the image is directly created by a machine (the camera), while all the photographer does is point the camera and click. In fact the USPTO recently opined against granting copyright for images generated by a machine (AI model) in response to someone's prompt (https://public-inspection.federalregister.gov/2023-05321.pdf https://public-inspection.federalregister.gov/2023-05321.pdf). I believe applying this same standard (whether the standard is right is an entirely separate question) to photography should also preclude photos from copyright, because there is more artistic expression involved in prompting than there is in pointing a camera.
- freejazz 3y agoIf you think that's what's really entailed in photography, you a) don't really seem to know anything about photography as a science, let alone an art, and b) should read US court cases on photography copyrights, which make all of these points against you. Happy to get you same case names if you are interested.
- 1lint 3y agoYes I will take you up on the offer for these case names you mentioned. I think it will be interesting to read up on them, in light of the current copyright discussion around AI image generation, which I believe to be akin to photography due to the shared degree of reliance on a machine to generate images.
- dang 3y agoRelated. Others? The Andy Warhol Copyright Case That Could Transform Generative AI - https://news.ycombinator.com/item?id=35731856 https://news.ycombinator.com/item?id=35731856 - April 2023 (96 comments) Why Warhol images are making museums nervous (NYT) - https://news.ycombinator.com/item?id=35054912 https://news.ycombinator.com/item?id=35054912 - March 2023 (2 comments) The Supreme Court May Force Us to Rethink 500 Years of Art - https://news.ycombinator.com/item?id=35018423 https://news.ycombinator.com/item?id=35018423 - March 2023 (1 comment) Justices debate whether Warhol image is “fair use” of photograph of Prince - https://news.ycombinator.com/item?id=33426354 https://news.ycombinator.com/item?id=33426354 - Nov 2022 (3 comments) The case litigating Andy Warhol’s use of a photograph of Prince - https://news.ycombinator.com/item?id=33330613 https://news.ycombinator.com/item?id=33330613 - Oct 2022 (20 comments) A legal dispute that will test the limits of fair use - https://news.ycombinator.com/item?id=33053286 https://news.ycombinator.com/item?id=33053286 - Oct 2022 (260 comments) Supreme Court to Review Warhol Lawsuit Involving Prince Portrait - https://news.ycombinator.com/item?id=30844145 https://news.ycombinator.com/item?id=30844145 - March 2022 (2 comments) Does Andy Warhol get same copyright treatment as Google code? - https://news.ycombinator.com/item?id=26919044 https://news.ycombinator.com/item?id=26919044 - April 2021 (58 comments)
- indymike 3y agoAbout 15 years a go I worked with a web designer that would take a photo and apply a filter to it in Photoshop and claim it was now copyright free and could be used. Fortunately, we told him to get something where we could either license it or have documentation it didn't have to be licensed. Paid license, CC, whatever, but we needed proof we were allowed to use it. Our designer thought using famous people instead of stock photos would sell more. The designer went on to start a web design company that got sued for infringement, and ended up having to settle. I always wondered why if, my designer friend had to settle, how Warhol got away with it.
- ghaff 3y agoI'm not going to put this and similar cases quite in the class of just applying a Photoshop filter or similar transformations. But I'm not sure it's that far off either. Which seems to fall into an area where you can't just take someone's photo, apply a couple straightforward changes, and now it's yours.
- ChrisMarshallNY 3y agoOne of the problems, was that Warhol stole from Lynn Goldsmith, who is about as big-time a celebrity shooter as you can get. She's in the same league as Annie Leibovitz. She was able to devote years and years, to get it all the way to the top. Personally, I think it went the way it should, but I'm biased. My company worked with her, and I think she had a serious network; not just a single artwork. She's very popular, and has friends in high places. Other photographers probably don't have the capabilities that she has. Many of them have probably licensed through outfits like Getty Images, who would probably go after folks that used their works, but if they didn't, I don't think the photographer would have a whole lot of recourse.
- kevinmchugh 3y agoLichtenstein picked poorer, more anonymous artists to rip off and that seems like the more winning strategy
- zenmaster10665 3y agoThere is a wider relevance here to AI, is there not? 'prior art' could be broadly interpreted?
- cubefox 3y agoI doubt it, since the Warhol work here has strong similarities to another one, while text-to-image models only directly reproduce existing art when something occurs as multiple (close) duplicates in the training data. Which can be quite easily avoided, like using a vector database to filter for similar items before training.
- 01100011 3y agoMore like, this ruling is irrelevant in the age of AI. I can take your photo, change the perspective, angle, exposure, etc, and now you'd be hard pressed to prove that I started with your photo. It's just 'transformation', but it's not simple transformation in a way you could prove a connection.
- JoeAltmaier 3y agoIt was a picture of Prince, modified by coloring and outlining. But it's use (selling it) was again to represent Prince, for commerce, not some other subtle meaning/parody/social commentary. I can see the argument in favor of the photographer.
- IshKebab 3y agoYeah this definitely doesn't seem unreasonable. It's the same photo, just stylised. I think copyright should protect that.
- tinglymintyfrsh 3y agoRotoscoping is similar. Perhaps Campbell soup shouldn't be Xerox or art either?
- dcow 3y agoNow the question is, "how does one suitably distinguish a work from the original?". Now giving it a new expression is not enough. Now it must be used also for a different purpose? This is just way more confusing... not less.
- perrygeo 3y agoWas this "new expression" meant to compete in the same economic market? If I take a photo, and you modify it and try to pass it off and sell it as yet another photo - clearly not distinguished and derivative. If I take a photo, and you create an artwork or video game character based off it - clearly distinguished; I don't have any right to your IP. If I take a photo, and it inspires you to take a similar photo for your personal collection - clearly distinguished. If I take a photo, and it inspires you to take a similar photo and you decide to sell it as your creation... ambiguous, as there is a market conflict.
- crumpled 3y agoReminds me of the more recent law suits between Shepard Fairy and AP about the Barack Obama "Hope" graphic. Based on this new judgment it looks like Fairey would eventually lose if they hadn't settled the case.
- bambax 3y agoThat you would copy an image, apply a random filter, then call it your own and sell it, is ridiculous. But the real scandal is that copyright survives the artist. Marvin Gaye, Andy Warhol... Dead guys. So called "estates"... Insects feeding on corpses.
- sacrosancty 3y agoI'm a bit of a broken record on this, but copyright lasting beyond the death of the author is important so that near-death authors can still sell their work. It would be near-worthless to a buyer/publisher/etc. if it was about to enter public domain. Imagine the headline "Famous artist diagnosed with terminal cancer - suddenly can't sell her work to fund her treatment."
- smeagull 3y agoThis feels very similar to the "think about the children" lines when people want to keep their privacy online. It's stupidly specific, and if you have to twist this far to find an example, I think you have nothing.
- zanellato19 3y agoI don't think its _stupidly_ specific to point out that people should still be able to sell things when nearing death. But 10/15 years should be more than enough. The amount of years is beyond parody at this point.
- kevinmchugh 3y agoDavid Bowie died two days after his final album was released. Are the people who worked on it, put it out, somehow less entitled to make money because he died? It doesn't feel overly specific when the topic is copyright after death to think about how people die.
- realusername 3y agoThere's two solutions here, either they are co-creators and then all the creators aren't dead or they aren't and they were never going to receive additional revenue beyond their work anyway. Either way, that's not working as an argument against stopping copyright when the authors are dead.
- tinglymintyfrsh 3y agoSCOTUS is dysfunctional: art isn't art and women don't have bodily autonomy.
- photochemsyn 3y agoOur collective human culture should not be controlled by some authoritarian court system. We should be free to use the elements of humanity's collective cultural product in any way we want, and, let's face it, who is going to enforce it? Oh right, the authoritarian state... You know, I think AI can help us dismantle the authoritarian state. Certainly not an outcome that Orwell envisionged... but plausible, I think.
- __loam 3y agoAnd fuck the artists who created it right? You're entitled to the fruits of their labor after all. Feed em into whatever system you want and ignore the consequences.
- matheusmoreira 3y agoActually yeah. We're sick of these monopolists you call artists and their all-overriding concerns surrounding their imaginary property. As if the entirety of society has to bend over backwards just to enable their centuries old business model centered on something so absurd it's logically reducible to the ownership of numbers. If the product of your labor is information, it's time to accept you're in the 21st century. Information can be trivially copied and modified with barely any restrictions.
- __loam 3y agoAbsolutely misanthropic take.
- gedy 3y agoPhotographers should be paid, but come on, it's a photograph of a person, not carving the Statue of David out of marble.
- deleted 3y ago[deleted]
- madrox 3y agoReminds me of a similar case between the AP and the artist that made the famous "Hope" poster of Obama: https://www.npr.org/sections/thetwo-way/2011/01/12/132860606/shepard-fairey-and-ap-settle-copyright-dispute-over-hope-poster https://www.npr.org/sections/thetwo-way/2011/01/12/132860606...
- anothernewdude 3y agoStupid thing is, there are multiple photos from that angle.
- graderjs 3y agoThis is where we need Art Trump: Washed-up and very classless "photog" Lynn Goldsmith seeks giant lifetime basic income by looting the very great Warhol estate, amid dwindling demand for her work. A very nasty person, a true "hack"! Can't we have protection for high art from this BS? If I make a collage, that includes a photo from a magazine, on a canvas, with some paint and other things added, it's not transformative enough? Ugh...
- thaumaturgy 3y agoWeird. A lot of the comments here seem to be talking about copyright issues that aren't present in this case. The Supreme Court's decision is linked from the article (https://www.supremecourt.gov/opinions/22pdf/21-869_87ad.pdf https://www.supremecourt.gov/opinions/22pdf/21-869_87ad.pdf [pdf]), and the first few pages summarize the facts of the case and go to lengths to present a very limited scope for the ruling. I haven't finished reading all 87 pages, perhaps there is something further along in the ruling that people are specifically concerned about, but if there is, there's no hint about that in the comments here or the article about it or in the summary. First, the Court notes that it is specifically testing only one aspect of the Fair Use doctrine: "In this Court, the sole question presented is whether the first fair use factor, “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes...” It continues: "...the fact that a use is commercial as opposed to nonprofit is an additional element of the first fair use factor. The commercial nature of a use is relevant, but not dispositive." and: "...in a broad sense, a use that has a distinct purpose is justified because it furthers the goal of copyright, namely, to promote the progress of science and the arts, without diminishing the incentive to create." and (most importantly, IMO): "...The same copying may be fair when used for one purpose but not another..." There is some very specific context here. Lynn Goldsmith originally licensed this photograph to Vanity Fair for a single use only as an "artist reference for an illustration". VF then hired Warhol, Warhol made the derivative work in 1984, VF published it, and VF paid Goldsmith for the license. All was fine at this point. Then Prince dies in 2016, and Conde Nast (parent company for Vanity Fair) contacts the Andy Warhol Foundation, and they say, "hey, we've got a nice Orange Prince you can use", and they sold a license for that art to Conde Nast for $10,000. Goldsmith did not even know Orange Prince existed. She sees it on a magazine cover, and contacts the Andy Warhol Foundation to say, "hey, I think this might be a copyright infringement," and AWF pre-emptively sues her for declaratory judgement of non-infringement. The Court decided this case in favor of Goldsmith explicitly because both versions of the artwork are competing for the exact same kind of commercial use. i.e., had AWF merely been presenting this in an art gallery, it is less likely to have been found to be infringing. (And, had AWF not been massive dicks about the matter to begin with, this case might not have even gone to court.)
- sharkjacobs 3y agoWow, one of my least favourite artists and one of my least favourite branches of law!
- dhosek 3y agoIt always startles me a little to realize that Andy Warhol died in 1987 and was apparently producing work late in his life. I tend to think of him as belonging to the 60s and early 70s so the idea that he would have done a painting of Prince seems odd. But then, there are a number of artists whose death is later than I always imagine, like Tennessee Williams dying in 1983. He’d only been dead a year when I first read his plays in my high school English class, and I thought he was part of the long-dead canon of American writers.
- specialist 3y agoIf Fairey's Hope is not fair use, Warhol's Prince rip off most certainly isn't. https://en.wikipedia.org/wiki/Barack_Obama_%22Hope%22_poster#Origin_and_copyright https://en.wikipedia.org/wiki/Barack_Obama_%22Hope%22_poster...
- cobertos 3y agoWill this change how places like wikiHow source their images?
- deleted 3y ago[deleted]
- 6gvONxR4sf7o 3y ago“Although new expression, meaning, or message may be relevant to whether a copying use has a sufficiently distinct purpose or character, it is not, without more, dispositive of the first factor. Here, the specific use of Goldsmith’s photograph alleged to infringe her copyright is AWF’s licensing of Orange Prince to Condé Nast. As portraits of Prince used to depict Prince in magazine stories about Prince, the original photograph and AWF’s copying use of it share substantially the same purpose. Moreover, AWF’s use is of a commercial nature. Even though Orange Prince adds new expression to Goldsmith’s photograph, in the context of the challenged use, the first fair use factor still favors Goldsmith.” [emphasis mine] It's reasons like this that make me skeptical of the claims that AI training is slam dunk fair use, independent of the downstream purpose and usage of the models.
- theage 3y agoThe minor hue change of the picture makes them both published for "substantially the same purpose" i.e. subject-aggrandizement for being in position X at time Y. AI training doesn't preserve position nor the purpose of a photograph's subject like photoshop does, it amasses a style from corpus as probabilities. Upstream it's not substantial copying of a single work, downstream it's substantial restyling into any new imagined purpose. Slam dunk.
- petilon 3y agoWhat does this mean for Microsoft? Pretty much everything they do is a copy of some other successful product. Consider Microsoft Loop. Pretty good product. But it is a Warhol'd version of Notion. What is Micrsoft Teams, if not a Warhol'd version of Slack? What is C# if not a Warhol'd version of Java?
- WalterBright 3y agoYou heard it here first: Since AI generations are not copyrightable, AI is going to destroy copyright. Because nobody will be able to tell what parts of a new work are generated by AI and what parts are not.
- krapp 3y agoIt's far more likely AI will be regulated such that AI generations are copyrightable if models are trained on IP owned by the user, as an extension of their existing copyright, and there will probably be similar new rules created around attribution for artist and actors' unions, etc. So IP owners will simply use dedicated in-house models or licensed models for a fee. AI isn't going to destroy copyright - no one is going to allow that to happen. Joe Schmoe with his $8.00 SD account on Paperspace making waifu porn for Instagram won't have a legal leg to stand on, though, but then he never did.
- WalterBright 3y agoI doubt an in-house model will be able to get enough training data. I doubt public domain data plus their own personal copyrighted stuff is remotely sufficient.
- krapp 3y agoI'm sure Disney could get their hands on enough Disney owned material to train a Disney AI. It would also be a reason to keep artists and staff on hand to create training material for new properties, so maybe not as many creatives would be out on the streets. Plus I'm assuming IP owners would have deals with stock image libraries and companies like Adobe to make it actually legal for companies to use.
- vivegi 3y agoThe obligatory "This is not a pipe" reference https://en.wikipedia.org/wiki/The_Treachery_of_Images https://en.wikipedia.org/wiki/The_Treachery_of_Images
- jcranmer 3y agoThe majority opinion is, to put it mildly, a fucking disaster. There are four factors to fair use, and in this case, it's pretty clear that the fourth factor (the effect on the market use) is fairly disastrous for Andy Warhol, and would be sufficient to find the use here non-fair. But SCOTUS took up only the question of "what the hell does factor one mean", and the majority opinion basically decides they want to import the fourth factor into factor one in order to answer the question. Also, the sheer lack of comity between majority and dissenting opinions is... yikes. Kagan and Sotomayor are basically calling each other idiots throughout their respective opinions.
- lemax 3y agoKagan's dissent is particularly thought provoking. While the majority ruled that the use was not sufficiently transformative because it was licensed to publications in the same manner as the original photograph, Kagan believes that Conde Nast could have chosen either photo to license, and that they chose the Warhol not as a substitute, but a work of its own. "The majority holds that because Warhol licensed his work to a magazine—as Goldsmith sometimes also did—the first factor goes against him. It does not matter how different the Warhol is from the original photo—how much “new expression, meaning, or message” he added. It does not matter that the silkscreen and the photo do not have the same aesthetic characteristics and do not convey the same meaning. It does not matter that because of those dissimilarities, the magazine publisher did not view the one as a substitute for the other. All that matters is that Warhol and the publisher entered into a licensing transaction, similar to one Goldsmith might have done. Because the artist had such a commercial purpose, all the creativity in the world could not save him. ."
- coding123 3y agoThe supreme court handed this down? I mean the world is melting down and we're arguing about Warhol's art (who is dead) and Prince's image (who is also dead).
- wesleywt 3y agoI don't like copyright, but if you are an artist that the AI mimics too closely you might have some recourse.
- chmod600 3y agoFair use doesn't completely liberate the new work from the old. It just means that the particular use of the old work is not infringing. When the new work gets used in new ways, those new uses might be infringing.
- Nevermark 3y agoThought experiment: Create a book which starts with a literal duplication of some art on page 1, and a completely unrecognizable work on page 1000, using increments of various artistic interpretive methods. Use the same Prince pic to ensure the book and its works are noticed. Mail a complimentary copy to Prince's estate just to be sure. -- If I were the Supreme Court, I would: 1. Choose a penalty p1 for the first page. 2. Choose the first page N that was considered not overstepping in anyway, presumably by averaging the page choices of every justice (with all their agreement). 3. Set the total penalty to linearly go from p1 to 0, for pages from 1 to N. Total penalty, P = p1 * (N^2 - N)/2 That N^2 should kick the ass of anyone that vexes the Court with such an interesting but contrived situation! Oh well, better not.
- aaron695 3y ago[dead]
- vivegi 3y agoJust tried the following prompt on Bing Chat. > generate an image of the face of michael jackson in the style of Andy Warhol painting of Prince It obliged with 4 variations [1]. I wonder how the legal system views this. [1]: https://www.bing.com/images/create/the-face-of-michael-jackson-in-the-style-of-andy-w/64671ad7944249dcb637a6a1e9443fd7 https://www.bing.com/images/create/the-face-of-michael-jacks...
- bmitc 3y agoI have never understood the appeal of Andy Warhol, even in trying to understand him and his work in a period context. For an interesting movie that is in some ways a critique of the banality of Warhol, check out Exit Through the Giftshop by Banksy.