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About 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

About 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 ago
I'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 ago
  One 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 ago
    Lichtenstein picked poorer, more anonymous artists to rip off and that seems like the more winning strategy
    - mold_aid 3y ago
      Not for Koons it wasn’t
  - ghaff 3y ago
    As a non-lawyer, I basically agree. This seems like a case of license the thing already. It's an edge case but, especially given existing case law, seems like a less-difficult one. The main complication here seems to be big name photographer on the one hand and big name pop artist on the other. So this wasn't Andy Warhol repurposing some random pedestrian photo. Arguably the difference shouldn't matter. But it does.
  - sum1zideas 3y ago
    So glad Lynn Goldsmith can grift forever on one black and white photo. Forever copyright is a joke.
- anon84873628 3y ago
  The animated gif in the article sure does make it seem like a very simple filter. I guess the "Warhol aesthetic" was at one time novel and seems basic now, but just changing the colors of a photograph isn't particularly transformative.
reaperman 3y ago
The Warhol was previously presumed to be “transformative” work due to Warhol’s reality distortion field. I’m not trying to be facetious, warhol’s “Campbell soup” genuinely transformed the imagery/iconography of a Campbell’s soup can for his generation. And “transformative” makes it not infringement, legally. But removed from that transformative force, it’s clearly copyright infringement. So by 2023, things look different.
- smeagull 3y ago
  It's not copyright infringement, but entrenched interests that publish, rather than create, are feeling threatened.
  - eternalban 3y ago
    > entrenched interests https://images.squarespace-cdn.com/content/v1/5d08189949b8cd0001bc204e/1610676584002-CAEOLPBNRLWJ92XX7UBJ/Untitled_Artwork.PNG https://images.squarespace-cdn.com/content/v1/5d08189949b8cd... > create https://www.highsnobiety.com/static-assets/thumbor/3K6e1WnYR08kHOrNmhhTa5isyYY=/1600x1067/www.highsnobiety.com/static-assets/wp-content/uploads/2017/10/09154708/guide-buying-supreme-1.jpg https://www.highsnobiety.com/static-assets/thumbor/3K6e1WnYR... Kruger is a class act & has my respect. https://highxtar.com/wp-content/uploads/2017/12/Thumb_Kruger_Supreme.jpg https://highxtar.com/wp-content/uploads/2017/12/Thumb_Kruger...
- marcosdumay 3y ago
  What an odd, contrived problem caused by eternal copyrights.
  - stubish 3y ago
    What has the length of copyright have to do with this? The same court case could have happened in the 80s before Warhol died.
    - echelon 3y ago
hn_throwaway_99 3y ago
Perhaps a lawyer can explain a little more to me the logic behind the "transformative" rule when it comes to copyright protection, and particularly how there seems to be a totally different standard when it applies to music. While Ed Sheeran just won (in my opinion, thankfully) his copyright lawsuit, the writers of "Blurred Lines" famously lost the lawsuit filed by Marvin Gaye's family alleging infringement of "Got to Give it Up". In my opinion, that was the wrong decision - while you can argue there are some similar beats and chord progressions, I don't see how anyone could believe that Blurred Lines isn't at least a "transformative" depiction of "Got to Give it Up" (to be clear, I think it's much more than that - the songs sound completely different to my untrained ear). Even in cases where there is no dispute, where one song legally samples another song but pays royalties, in many cases the use of the sample is completely transformative, again in my opinion, use of the original song. So basically what I'm asking is why do judges appear to apply the "transformative" rule to visual arts but not to auditory ones.
- Retric 3y ago
  One of the major problems with songs is they often “borrow” from songs in competition or even the same style. Art that’s appealing to wildly different customers is given significantly more leeway where art that competes head to head is more suspect. This is one reason comedy is given so much freedom. It’s much easier to argue South Park retelling a story isn’t economically harming the original creators. That isn’t to say transformative only applies in economic terms, but such things make the arguments a lot easier. As an example of this, Blizzard actually provided significant help in creating “Make Love, Not Warcraft” which shows just what transformative reuse can look like.
  - bdowling 3y ago
    > Blizzard actually provided significant help in creating “Make Love, Not Warcraft” which shows just what transformative reuse can look like. Actually, it shows how copyright owners can cooperate when a third party's use comports with their interests. If, however, South Park had appropriated imagery, music, etc., from Blizzard without permission, then that may have been copyright infringement outside the realm of fair use. (Note: South Park probably still could have parodied World of Warcraft, albeit without using any of Blizzard's materials.)
graderjs 3y ago
This is because you're not equipped to judge what's transformative or not. Transformative is not just about the visual, art's also about the context. You should have wondered, why can't your designer pal do it, if it's OK for Warhol? The answer may have been: Warhol's process, coloring, final result, context, was way more transformative physically, and also semantically. I think this is where we need art experts who are advising judges, it's sort of like maybe that trope where judges are making judgements about encryption and they don't understand the technology. Not assuming these judges were not art buffs, it's the SC, it's probably a very complex, refined, elaborate, and legally sound judgement...but I think they're missing some key connection to art to have gone this way. 2 dissenters thank God. Hopefully overturned in future, or further refined to protect artists and great art. I think the plaintiff here is less an artist and more a "professional paparazzi with a lighting set up".
- pclmulqdq 3y ago
  The court generally tries to avoid playing art critic. It may be better that they do. To that end, a lot has been made of Warhol's soup cans, but the big distinction here is that he's not using them to sell soup. Sure, they are a different medium and all, but the really important factor is that those paintings don't have the same commercial purpose as Campbell's ads. In this case, his art did have the same commercial purpose and was a close copy, meaning that the fair use analysis didn't go his way.
  - graderjs 3y ago
    Thanks for that analysis. So...really? The prince work was editorial art commission and the purpose of that is to sell magazines? Is that idea? I think that sounds a little weird. Walk into the downtown corporate building of big firms in any city in the world, and I think you often see large scale art in the high ceilinged foyer: these pieces are often specially commissioned by the building owners or firm. Would the purpose of those, by that judgement, be to "sell the firm" (or equivalently raise its profile to by a chain of events, eventually increase revenue?). To me that just sounds weird, because often they are great art in themselves, and indeed many go on to be sold to other collections, or loaned to museums, and throughout their life they are rotated through the firms buildings or collections--just like regular art. But maybe I'm misunderstanding your meaning or the connection here.
zamnos 3y ago
Sure he had to settle, but the question is how much did he have to settle for ($X), and how much money did the web design company net him ($Y)? And how much more was $Y than $X?
- lpapez 3y ago
  Note however that money is not the only question here. For example I would also question their ethics to knowingly violate copyright law.
  - account42 3y ago
    Nothing ethically wrong with violating bad laws.
yieldcrv 3y ago
> I always wondered why if, my designer friend had to settle, how Warhol got away with it. Your designer friend didn't have to settle. Warhol went to district court and got the undesired result. Then went to appeals court and got the desired result. Then went to the Supreme Court and got the undesired result. Your designer friend could have done all that too and created the exact same case law in a complete coin toss that affects everyone for the next few decades. They didn't. The secret ingredient is money.
lpapez 3y ago
I wonder what is going on inside heads of people like this when they do stuff contrary to the entire world thinking that they know better. I've seen it in tech as well, people reimplementing SQLite, Boost and Tensorflow because they think they know better. Sheer hubris.

ghaff 3y ago

I'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 ago
One 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 ago
  Lichtenstein picked poorer, more anonymous artists to rip off and that seems like the more winning strategy
  - mold_aid 3y ago
    Not for Koons it wasn’t
- ghaff 3y ago
  As a non-lawyer, I basically agree. This seems like a case of license the thing already. It's an edge case but, especially given existing case law, seems like a less-difficult one. The main complication here seems to be big name photographer on the one hand and big name pop artist on the other. So this wasn't Andy Warhol repurposing some random pedestrian photo. Arguably the difference shouldn't matter. But it does.
- sum1zideas 3y ago
  So glad Lynn Goldsmith can grift forever on one black and white photo. Forever copyright is a joke.
anon84873628 3y ago
The animated gif in the article sure does make it seem like a very simple filter. I guess the "Warhol aesthetic" was at one time novel and seems basic now, but just changing the colors of a photograph isn't particularly transformative.

reaperman 3y ago

The Warhol was previously presumed to be “transformative” work due to Warhol’s reality distortion field. I’m not trying to be facetious, warhol’s “Campbell soup” genuinely transformed the imagery/iconography of a Campbell’s soup can for his generation. And “transformative” makes it not infringement, legally. But removed from that transformative force, it’s clearly copyright infringement. So by 2023, things look different.

smeagull 3y ago
It's not copyright infringement, but entrenched interests that publish, rather than create, are feeling threatened.
- eternalban 3y ago
  > entrenched interests https://images.squarespace-cdn.com/content/v1/5d08189949b8cd0001bc204e/1610676584002-CAEOLPBNRLWJ92XX7UBJ/Untitled_Artwork.PNG https://images.squarespace-cdn.com/content/v1/5d08189949b8cd... > create https://www.highsnobiety.com/static-assets/thumbor/3K6e1WnYR08kHOrNmhhTa5isyYY=/1600x1067/www.highsnobiety.com/static-assets/wp-content/uploads/2017/10/09154708/guide-buying-supreme-1.jpg https://www.highsnobiety.com/static-assets/thumbor/3K6e1WnYR... Kruger is a class act & has my respect. https://highxtar.com/wp-content/uploads/2017/12/Thumb_Kruger_Supreme.jpg https://highxtar.com/wp-content/uploads/2017/12/Thumb_Kruger...
marcosdumay 3y ago
What an odd, contrived problem caused by eternal copyrights.
- stubish 3y ago
  What has the length of copyright have to do with this? The same court case could have happened in the 80s before Warhol died.
  - echelon 3y ago

hn_throwaway_99 3y ago

Perhaps a lawyer can explain a little more to me the logic behind the "transformative" rule when it comes to copyright protection, and particularly how there seems to be a totally different standard when it applies to music. While Ed Sheeran just won (in my opinion, thankfully) his copyright lawsuit, the writers of "Blurred Lines" famously lost the lawsuit filed by Marvin Gaye's family alleging infringement of "Got to Give it Up". In my opinion, that was the wrong decision - while you can argue there are some similar beats and chord progressions, I don't see how anyone could believe that Blurred Lines isn't at least a "transformative" depiction of "Got to Give it Up" (to be clear, I think it's much more than that - the songs sound completely different to my untrained ear). Even in cases where there is no dispute, where one song legally samples another song but pays royalties, in many cases the use of the sample is completely transformative, again in my opinion, use of the original song. So basically what I'm asking is why do judges appear to apply the "transformative" rule to visual arts but not to auditory ones.

Retric 3y ago
One of the major problems with songs is they often “borrow” from songs in competition or even the same style. Art that’s appealing to wildly different customers is given significantly more leeway where art that competes head to head is more suspect. This is one reason comedy is given so much freedom. It’s much easier to argue South Park retelling a story isn’t economically harming the original creators. That isn’t to say transformative only applies in economic terms, but such things make the arguments a lot easier. As an example of this, Blizzard actually provided significant help in creating “Make Love, Not Warcraft” which shows just what transformative reuse can look like.
- bdowling 3y ago
  > Blizzard actually provided significant help in creating “Make Love, Not Warcraft” which shows just what transformative reuse can look like. Actually, it shows how copyright owners can cooperate when a third party's use comports with their interests. If, however, South Park had appropriated imagery, music, etc., from Blizzard without permission, then that may have been copyright infringement outside the realm of fair use. (Note: South Park probably still could have parodied World of Warcraft, albeit without using any of Blizzard's materials.)

graderjs 3y ago

This is because you're not equipped to judge what's transformative or not. Transformative is not just about the visual, art's also about the context. You should have wondered, why can't your designer pal do it, if it's OK for Warhol? The answer may have been: Warhol's process, coloring, final result, context, was way more transformative physically, and also semantically. I think this is where we need art experts who are advising judges, it's sort of like maybe that trope where judges are making judgements about encryption and they don't understand the technology. Not assuming these judges were not art buffs, it's the SC, it's probably a very complex, refined, elaborate, and legally sound judgement...but I think they're missing some key connection to art to have gone this way. 2 dissenters thank God. Hopefully overturned in future, or further refined to protect artists and great art. I think the plaintiff here is less an artist and more a "professional paparazzi with a lighting set up".

pclmulqdq 3y ago
The court generally tries to avoid playing art critic. It may be better that they do. To that end, a lot has been made of Warhol's soup cans, but the big distinction here is that he's not using them to sell soup. Sure, they are a different medium and all, but the really important factor is that those paintings don't have the same commercial purpose as Campbell's ads. In this case, his art did have the same commercial purpose and was a close copy, meaning that the fair use analysis didn't go his way.
- graderjs 3y ago
  Thanks for that analysis. So...really? The prince work was editorial art commission and the purpose of that is to sell magazines? Is that idea? I think that sounds a little weird. Walk into the downtown corporate building of big firms in any city in the world, and I think you often see large scale art in the high ceilinged foyer: these pieces are often specially commissioned by the building owners or firm. Would the purpose of those, by that judgement, be to "sell the firm" (or equivalently raise its profile to by a chain of events, eventually increase revenue?). To me that just sounds weird, because often they are great art in themselves, and indeed many go on to be sold to other collections, or loaned to museums, and throughout their life they are rotated through the firms buildings or collections--just like regular art. But maybe I'm misunderstanding your meaning or the connection here.

zamnos 3y ago

Sure he had to settle, but the question is how much did he have to settle for ($X), and how much money did the web design company net him ($Y)? And how much more was $Y than $X?

lpapez 3y ago
Note however that money is not the only question here. For example I would also question their ethics to knowingly violate copyright law.
- account42 3y ago
  Nothing ethically wrong with violating bad laws.

yieldcrv 3y ago

> I always wondered why if, my designer friend had to settle, how Warhol got away with it. Your designer friend didn't have to settle. Warhol went to district court and got the undesired result. Then went to appeals court and got the desired result. Then went to the Supreme Court and got the undesired result. Your designer friend could have done all that too and created the exact same case law in a complete coin toss that affects everyone for the next few decades. They didn't. The secret ingredient is money.

lpapez 3y ago

I wonder what is going on inside heads of people like this when they do stuff contrary to the entire world thinking that they know better. I've seen it in tech as well, people reimplementing SQLite, Boost and Tensorflow because they think they know better. Sheer hubris.