6 ms·

Folks 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 Con

Folks 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 ago
So pay and get a license from the original artist?
anigbrowl 3y ago
No 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 ago
  I 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."
  - anigbrowl 3y ago
    Yes...non-publication won't bar a fair use finding. If you sit at home and make 100 copies of a work in the pursuit of developing your artistic technique, you're fine up to the point where you attempt to sell them or exploit your production commercially, eg making a youtube 'documentary' about yourself which leverages the fame of the original work to draw attention to your perfect imitation of it, but painted with a toothpick or something. This is after all a kind of publication. There isn't a default presumption of infringement, which is why you don't need to produce ID at the art supply store to buy brushes and canvas.
    - saynay 3y ago
      More accurately, you are fine until you try to distribute them, or display them. Giving out free copies would not be commercial, but would definitely be a violation.
      - anigbrowl 3y ago
        Well it's commerce in the sense of 'look at me I'm so great at art-ing.' You're sharing them for social rather than fiscal capital. If you anonymously mailed them out and kept your mouth shut I doubt any resources would be spent to track you down, or (if they were) that you would lose in court.
    - sandworm101 3y ago
      You are definitely not "fine". The infringement has happened. The fact that you aren't going to be "caught" and sued doesn't make everything legal. Ask any artists if you make and hang a copy of their work inside your own home. Ask Microsoft if you can copy their "art" for use in your own home.
      - deleted 3y ago
        [deleted]
      - willcipriano 3y ago
        If I have photographic memory do I need to license any artwork I see? Sometimes practical limits on laws are intentional. Tracing your favorite anime character is legally infringement but luckily, multinational corporations aren't allowed to enter our homes to make sure we don't owe them royalties for our kids artwork on the fridge. They can only do that for trading cards.
- subsubzero 3y ago
  right, anyone can use a lightscreen, put a piece of paper over Goldsmiths photo and then trace it with either pens or paint. Where you run into issues is trying to say that the copy you made is yours and licensing it, the ruling seems pretty fair.
  - archontes 3y ago
    US law as written does not permit this. Copyright restricts reproduction and the production of derivative work except for the reasons listed in fair use. Personal use isn't among those reasons (setting the US apart from like 20 other countries). It's just de facto legal because of the difficulty of detecting those instances and the presumably nil return in litigating them.
    - tracker1 3y ago
      In this case it wasn't for personal use... and even beyond just selling the original (derivative creation) itself. Where it came afoul was when they tried to license the derivative work in ways that were in conflict and reduced the market value to the original work.
    - davorak 3y ago
      > right, anyone can use a lightscreen, put a piece of paper over Goldsmiths photo and then trace it with either pens or paint. Where you run into issues is trying to say that the copy you made is yours and licensing it, the ruling seems pretty fair. This seems like it would be fair use. SeanLuke's comment[1] does a brief analysis that looks correct. [1] https://news.ycombinator.com/item?id=35994306 https://news.ycombinator.com/item?id=35994306
      - archontes 3y ago
        I'm sure that copying a work for your private consumption would be considered non-commercial in nature, but his assertion that it doesn't affect the potential market for the item wouldn't hold up. It's clearly affecting the market for the original as you are removing yourself from the market for it. Creating a copy for your own consumption harms the copyright holder's ability to market a reproduction to you.
- thrashh 3y ago
  Warhol isn’t well known because he tinted some images but because he chose to use everyday subjects like the Campbell soup can which were then-under appreciated in art and society. What gives art meaning is how it is a reaction to what was then in vogue at the time of its creation, but if you take art outside of its context, it seems superficial. For a more relatable example, if you watch 2001: A Space Odyssey now, it pales in comparison to modern sci-fi works but for its time, it was a revolutionary piece.
  - freejazz 3y ago
    The supreme court didn't say Warhol's work was without value. It said that Warhol's work was derivative of another work and that they could not maintain their alleged fair use defense based upon it being transformative, when it was being commercially used for the same exact purpose.
  - anigbrowl 3y ago
    everyday subjects like the Campbell soup can which were then-under appreciated in art and society As I already pointed out, Marcel Duchamp did that very thing with a urinal ~60 years earlier. Duchamp talked of found objects as 'readymades; and said they were "everyday objects raised to the dignity of a work of art by the artist's act of choice." Warhol wasn't unoriginal because he appropriated everyday objects and others' artistic works, but because those concepts had been developed by the Dadaists decades earlier. https://en.wikipedia.org/wiki/Fountain_(Duchamp) https://en.wikipedia.org/wiki/Fountain_(Duchamp)
    - thrashh 3y ago
      But a urinal is not the marketing on a product.
- gnicholas 3y ago
  > No 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. You can create infringing works in your home to your heart's content because you are unlikely to get caught. But that doesn't mean that the infringement hasn't happened. There are fair use factors that will determine whether an exception to infringement applies, but only one of those factors relates to commercialization. This is why most photo print shops won't let you print images that they suspect to be copyrighted, even if you just plan to use it in your own home. Perhaps this will come across as an overly-technical explanation to non-lawyers (IAAL), but I think it's worth noting in this thread because it is strictly not true that infringement hasn't happened until you license or sell a work.
  - dbspin 3y ago
    > This is why most photo print shops won't let you print images that they suspect to be copyrighted, even if you just plan to use it in your own home. That's genuinely shocking to me, is that an American thing? Never heard of such a restriction here (in Ireland).
    - tracker1 3y ago
      Different nations have different interpretations of intellectual property in general. Combined with treaties that provide protections in other nations. It all will vary.
      - dbspin 3y ago
        I suspect the law is all too similar, it's the enforcement that tends to vary. Recently moved from back from living in Germany. On paper Germany has similar noise nuisance laws to most countries. In practice they're super officious about enforcement, with a whole police force dedicated just to nuisance complaints. Which has an extremely chilling effect on social life and neighbourly relations - since its normalised to call the police on ones neighbours.
    - 3y ago
MollyRealized 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." In other words, just adding new expression, meaning, or message to a work does not, in and of itself, create a transformational use. That's a troublesome ruling (to me, at least).
- tracker1 3y ago
  I'm a bit mixed on this myself. I can see it both ways, and the ruling itself was probably correct, and I didn't read the full judgement to even comment on how it should apply to new cases moving forward.
btown 3y ago
From the opinion, as quoted in the article: > “AWF [Andy Warhol Foundation] 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, which is a matter of degree, and the degree of difference must be weighed against other considerations, like commercialism." It seems like there's a strong possibility that if you use any tool, but especially an automated tool, explicitly to generate work "based on Artist Name's work" and then you try to sell it for substantially the same purpose as Artist Name's original work with an explicit goal to avoid the commercial ramifications of licensing those rights from Artist Name, then the courts might not see that as fair use under this new precedent. This is immensely important, say, if Artist Name is a writer that a studio is trying to replace while maintaining their style by asking an AI to mimic their style, or an actor where the studio wants to use an AI-generated likeness in place of paying them. And of course, this means that studios will try to get these creators to sign their rights away explicitly - which makes some of the current collective action all that much more important!
- pmoriarty 3y ago
  But the case wasn't about the style of the photographer, but the close resemblance to that particular photo.
  - greiskul 3y ago
    Not close resemblance. Copying. Andy Warhol didn't happen to paint it similar to that photo. If he had, there wouldn't haven been a case, since copyright doesn't cover independent creation. Andy Warhol painted it by copying the photo.
- bioemerl 3y ago
  Seems like a stretch to me. An AI tool doesn't just recolor an existing image, it generates nearly entirely novel ones.
Alex3917 3y ago
Given the fact that the Warhol Foundation has been accused of not authenticating legitimate pieces owned by the "wrong kind" of people in order to drive up the perceived value of the collection, it's still kind of poetic justice.

colesantiago 3y ago

So pay and get a license from the original artist?

anigbrowl 3y ago

No 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 ago
I 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."
- anigbrowl 3y ago
  Yes...non-publication won't bar a fair use finding. If you sit at home and make 100 copies of a work in the pursuit of developing your artistic technique, you're fine up to the point where you attempt to sell them or exploit your production commercially, eg making a youtube 'documentary' about yourself which leverages the fame of the original work to draw attention to your perfect imitation of it, but painted with a toothpick or something. This is after all a kind of publication. There isn't a default presumption of infringement, which is why you don't need to produce ID at the art supply store to buy brushes and canvas.
  - saynay 3y ago
    More accurately, you are fine until you try to distribute them, or display them. Giving out free copies would not be commercial, but would definitely be a violation.
    - anigbrowl 3y ago
      Well it's commerce in the sense of 'look at me I'm so great at art-ing.' You're sharing them for social rather than fiscal capital. If you anonymously mailed them out and kept your mouth shut I doubt any resources would be spent to track you down, or (if they were) that you would lose in court.
  - sandworm101 3y ago
    You are definitely not "fine". The infringement has happened. The fact that you aren't going to be "caught" and sued doesn't make everything legal. Ask any artists if you make and hang a copy of their work inside your own home. Ask Microsoft if you can copy their "art" for use in your own home.
    - deleted 3y ago
      [deleted]
    - willcipriano 3y ago
      If I have photographic memory do I need to license any artwork I see? Sometimes practical limits on laws are intentional. Tracing your favorite anime character is legally infringement but luckily, multinational corporations aren't allowed to enter our homes to make sure we don't owe them royalties for our kids artwork on the fridge. They can only do that for trading cards.
subsubzero 3y ago
right, anyone can use a lightscreen, put a piece of paper over Goldsmiths photo and then trace it with either pens or paint. Where you run into issues is trying to say that the copy you made is yours and licensing it, the ruling seems pretty fair.
- archontes 3y ago
  US law as written does not permit this. Copyright restricts reproduction and the production of derivative work except for the reasons listed in fair use. Personal use isn't among those reasons (setting the US apart from like 20 other countries). It's just de facto legal because of the difficulty of detecting those instances and the presumably nil return in litigating them.
  - tracker1 3y ago
    In this case it wasn't for personal use... and even beyond just selling the original (derivative creation) itself. Where it came afoul was when they tried to license the derivative work in ways that were in conflict and reduced the market value to the original work.
  - davorak 3y ago
    > right, anyone can use a lightscreen, put a piece of paper over Goldsmiths photo and then trace it with either pens or paint. Where you run into issues is trying to say that the copy you made is yours and licensing it, the ruling seems pretty fair. This seems like it would be fair use. SeanLuke's comment[1] does a brief analysis that looks correct. [1] https://news.ycombinator.com/item?id=35994306 https://news.ycombinator.com/item?id=35994306
    - archontes 3y ago
      I'm sure that copying a work for your private consumption would be considered non-commercial in nature, but his assertion that it doesn't affect the potential market for the item wouldn't hold up. It's clearly affecting the market for the original as you are removing yourself from the market for it. Creating a copy for your own consumption harms the copyright holder's ability to market a reproduction to you.
thrashh 3y ago
Warhol isn’t well known because he tinted some images but because he chose to use everyday subjects like the Campbell soup can which were then-under appreciated in art and society. What gives art meaning is how it is a reaction to what was then in vogue at the time of its creation, but if you take art outside of its context, it seems superficial. For a more relatable example, if you watch 2001: A Space Odyssey now, it pales in comparison to modern sci-fi works but for its time, it was a revolutionary piece.
- freejazz 3y ago
  The supreme court didn't say Warhol's work was without value. It said that Warhol's work was derivative of another work and that they could not maintain their alleged fair use defense based upon it being transformative, when it was being commercially used for the same exact purpose.
- anigbrowl 3y ago
  everyday subjects like the Campbell soup can which were then-under appreciated in art and society As I already pointed out, Marcel Duchamp did that very thing with a urinal ~60 years earlier. Duchamp talked of found objects as 'readymades; and said they were "everyday objects raised to the dignity of a work of art by the artist's act of choice." Warhol wasn't unoriginal because he appropriated everyday objects and others' artistic works, but because those concepts had been developed by the Dadaists decades earlier. https://en.wikipedia.org/wiki/Fountain_(Duchamp) https://en.wikipedia.org/wiki/Fountain_(Duchamp)
  - thrashh 3y ago
    But a urinal is not the marketing on a product.
gnicholas 3y ago
> No 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. You can create infringing works in your home to your heart's content because you are unlikely to get caught. But that doesn't mean that the infringement hasn't happened. There are fair use factors that will determine whether an exception to infringement applies, but only one of those factors relates to commercialization. This is why most photo print shops won't let you print images that they suspect to be copyrighted, even if you just plan to use it in your own home. Perhaps this will come across as an overly-technical explanation to non-lawyers (IAAL), but I think it's worth noting in this thread because it is strictly not true that infringement hasn't happened until you license or sell a work.
- dbspin 3y ago
  > This is why most photo print shops won't let you print images that they suspect to be copyrighted, even if you just plan to use it in your own home. That's genuinely shocking to me, is that an American thing? Never heard of such a restriction here (in Ireland).
  - tracker1 3y ago
    Different nations have different interpretations of intellectual property in general. Combined with treaties that provide protections in other nations. It all will vary.
    - dbspin 3y ago
      I suspect the law is all too similar, it's the enforcement that tends to vary. Recently moved from back from living in Germany. On paper Germany has similar noise nuisance laws to most countries. In practice they're super officious about enforcement, with a whole police force dedicated just to nuisance complaints. Which has an extremely chilling effect on social life and neighbourly relations - since its normalised to call the police on ones neighbours.
  - 3y ago

MollyRealized 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." In other words, just adding new expression, meaning, or message to a work does not, in and of itself, create a transformational use. That's a troublesome ruling (to me, at least).

tracker1 3y ago
I'm a bit mixed on this myself. I can see it both ways, and the ruling itself was probably correct, and I didn't read the full judgement to even comment on how it should apply to new cases moving forward.

btown 3y ago

From the opinion, as quoted in the article: > “AWF [Andy Warhol Foundation] 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, which is a matter of degree, and the degree of difference must be weighed against other considerations, like commercialism." It seems like there's a strong possibility that if you use any tool, but especially an automated tool, explicitly to generate work "based on Artist Name's work" and then you try to sell it for substantially the same purpose as Artist Name's original work with an explicit goal to avoid the commercial ramifications of licensing those rights from Artist Name, then the courts might not see that as fair use under this new precedent. This is immensely important, say, if Artist Name is a writer that a studio is trying to replace while maintaining their style by asking an AI to mimic their style, or an actor where the studio wants to use an AI-generated likeness in place of paying them. And of course, this means that studios will try to get these creators to sign their rights away explicitly - which makes some of the current collective action all that much more important!

pmoriarty 3y ago
But the case wasn't about the style of the photographer, but the close resemblance to that particular photo.
- greiskul 3y ago
  Not close resemblance. Copying. Andy Warhol didn't happen to paint it similar to that photo. If he had, there wouldn't haven been a case, since copyright doesn't cover independent creation. Andy Warhol painted it by copying the photo.
bioemerl 3y ago
Seems like a stretch to me. An AI tool doesn't just recolor an existing image, it generates nearly entirely novel ones.

Alex3917 3y ago

Given the fact that the Warhol Foundation has been accused of not authenticating legitimate pieces owned by the "wrong kind" of people in order to drive up the perceived value of the collection, it's still kind of poetic justice.