A legal dispute that will test the limits of fair use

https://www.theatlantic.com/ideas/archive/2022/10/warhol-copyright-fair-use-supreme-court-prince/671599/

by fortran77 • 4 years ago

142 244 4 years ago

theatlantic.com

tromp• 4 years ago

This other article recognizes that a picture is worth a thousand words:

https://www.latimes.com/opinion/story/2022-09-29/andy-warhol...

thih9• 4 years ago

In music production terms, the sample hasn’t been cleared.

mwenge• 4 years ago

Guy colored in someone else's photo for profit. And doesn't kick any of it back. I also don't suppose his estate lets anyone else sell copies of that image. Seems like having your cake and eating it.

EdwardDiego• 4 years ago

Yeah, I'd hardly call that fair use.

bagels2• 4 years ago

Nah, it's like stealing someone else's cake, and writing your name on it with frosting and eating it.

Huh13372• 4 years ago

Much more like making the same cake with few differences and calling it yours. The original photo wasn't taken from anybody.

phpisthebest3• 4 years ago

No it is not. Copyright infringement is not, can not be considered theft. It is not legal theft, and can not be called that in court.

Theft is the act of taking something from someone, if you copy something you by definition have not taken it, you copied it.

The original is still there, intact.

Taxation is closer to theft than copyright infringement is.

pavlov• 4 years ago

Annoyingly this Atlantic article doesn't have a picture of the actual pair of works under dispute.

Here they are on ArtNet:

https://news.artnet.com/art-world/andy-warhol-foundation-los...

williamcotton7• 4 years ago

That seems incredibly transformative and especially since it would be part of a collection of many variations on the Prince print and displayed as such, playing with the idea of mass production and celebrity. Warhol’s art is like a meta-layer above celebrity photographs.

williamcotton7• 4 years ago

Here’s an example of Warhol in situ: https://www.diaart.org/exhibition/exhibitions-projects/andy-...

grumbel• 4 years ago

How is that transformative? It's just a copy of the photo with some level adjustments and background colors. Takes about a couple of seconds to reproduce in your favorite photo editor.

HillRat• 4 years ago

The problem, legally speaking, is that this is almost the exact same fact pattern as Rogers v. Koons, in that the photograph itself was not being commented on, so parodic fair use isn’t a valid defense.

dgs_sgd• 4 years ago

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

boomboomsubban2• 4 years ago

Or the article being printed in a magazine doesn't want to pay the republishing cost for both artworks.

linuxftw3• 4 years ago

From this article:

He compared Warhol’s distinctive silkscreen aesthetic to filmmaker with an easily identifiable style turning a book into a movie—that doesn’t mean the film is no longer a derivative work.

I find that argument compelling.

fastball2• 4 years ago

I don't find that argument compelling at all. Going from a book to a movie is a wildly different (and more involved process) than going from a photo to a silk screen.

masswerk3• 4 years ago

So what about turning a person (Prince) into a photograph, by the "mere" use of a technical apparatus?

It's an interesting aspect that we do not allow a model or actor to own the specific posing and/or acting, as this would imply considering any media capturing the performance as derivative work. There's an enormous bias in the system, right from the beginning.

slim• 4 years ago

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

fortran772• 4 years ago

This is similar to the case, which was successful, over the use of a stolen photograph for Barack Obama's campaign. The artist involved, Shepard Fairey, actually was sentenced for his involvement in the case:

https://www.phaidon.com/agenda/art/articles/2012/september/1...

morisy• 4 years ago

To clarify the above, the criminal charges came in not over copyright but over destruction of evidence and false statements:

However, criminal proceedings began when it transpired that Fairey lied in the earlier case, destroyed documents and submitted false images. In a statement published following the proceedings, the artist said that he 'accepted full responsibility for violating the Court's trust by tampering with evidence during my civil case with the Associated Press,' before going onto argue that he still believed he had a strong Fair Use case.

Trademark infringement cases can be ruinous, especially without insurance, but it’s civil not criminal.

dclowd9901• 4 years ago

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

beardyw• 4 years ago

It is very clear where the writer's sympathies lie. "Copyright maximalists" versus "Copyright minimalists"? - sorry, no "Copyright reformers".

Even as a fan of modern art Andy Warhol has always left me cold. Nothing he did seemed original or said anything.

To me seeking permission to use someone else's work is just good manners, regardless of money. That is the point.

denton-scratch2• 4 years ago

I agree that asking permission is just good manners.

Thing is, Warhol's entire output is based on copying; not having obtained permission is a large part of the point. I'm no art critic - I'm a phillistine - but I think one way of interpreting his work is as a commentary on copying.

etrautmann3• 4 years ago

Sure, but that doesn’t necessarily make it profound or interesting, regardless of its popularity.

lelanthran5• 4 years ago

Found the pictures thanks to the link elsethread.

To me, the Warhol images are substantially different - the only common element is Prince's features, and presumably that likeness belongs to Prince, not the photographer.

Consider that the photographer isn't the owner of the likeness, and that everything besides the likeness is different, I'd call the Warhol image a substantially different work from the photographer's image.

If the ruling comes down on the side of the photographer there's definitely a chilling effect on the creation of new art.

Other than the likeness (which belongs to Prince), there are no similarities between the images.

sbuk7• 4 years ago

The problem here is that the likeness is not what is in dispute, and the copyright of a photograph belongs to the photographer. The ruling, like it or not, is entirely correct. It is plain that the Warhol piece is derivative of the photograph.

lelanthran5• 4 years ago

The argument is not whether it is a derivative (it clearly is), but whether it is so substantially different that fair use applies.

Since there are no similarities other than the likeness, I find it hard to sympathise with the photographer's point of view.

The difference between the two images is substantial, to me.

As a thought experiment, if this was a painting of a disembodied Eiffel tower, would you say that the photographer of an Eiffel tower photo was ripped off?

The subject of the image clearly does not belong to the photographer, all the elements in the photo that do were omitted from the painting.

Aerroon3• 4 years ago

Perhaps we should change copyright to only last 5-10 years then.

jeroenhd• 4 years ago

I'm all for changing copyright to allow the stuff Warhol did, but I don't think this is substantially different at all. It's a direct copy of a picture with a coloured background. The angle, lighting, position, and expression, all probably directed by the photographer, are identical. This is the manual equivalent of an Instagram filter.

The two images don't compete in the same market, but that's not relevant for copyright. I think it perhaps should be, but as it stands, the law shouldn't be interpreted like this.

Imagine another type of copyrighted work, such as open source software, being reproduced against the terms of its license but with all names (variables etc.) changed, perhaps translated into another language or capitalised. The style of the work has definitely been changed, much like Warhol's style is very different from a photograph, but the product is very much a derivative that should be used in the terms set forth by the original author.

Also consider the effect this would have on the internet: if Google/Facebook/Bytedance were to be allowed to just scrape images online and sell them as their own after applying a black-and-white filter, any photographer would probably be up in arms.

XorNot• 4 years ago

The two images don't compete in the same market, but that's not relevant for copyright.

That is actually extremely relevant for Fair Use though.[1]

Note Factor 4: The Effect of the Use on the Potential Market for or Value of the Work

[1] https://copyright.columbia.edu/basics/fair-use.html

towaway154632• 4 years ago

I don’t think your analogy is correct. Colour and alteration of angle and shadow/lines produces a functionally distinct effect ie those who like the Warhol may dislike and the original for a variety of reasons including taste or whether it would match the decor where they would hang it. So it is not the same software with the variable names and casing or language changed, that would be invisible or relatively inconsequential to the end user. At worst it is a reskinned application but I think the effect is deeper than that.

itronitron• 4 years ago

> If the ruling comes down on the side of the photographer there's definitely a chilling effect on the creation of new art.

I actually think a ruling in favor of the photographer will favor creation of new art, because artists will have stronger protections. Warhol could have just taken his own photograph and there wouldn't be any argument to be made.

indymike• 4 years ago

To me, the Warhol images are substantially different - the only common element is Prince's features, and presumably that likeness belongs to Prince, not the photographer.

Depends on if Prince signed off on a model release.

ghaff7• 4 years ago

Model releases are about using images in marketing/advertising/etc. I can use images of you for other purposes without a release.

denton-scratch2• 4 years ago

Author says:

The English version, like a lot of English beer, is older but not necessarily better.

That's unkind. English sterilized bottled or tinned beer isn't "older" than the US equivalent. English cask-conditioned beer is a fresh product, usually made no more than a few days before it's pulled.

laumars• 4 years ago

I assumed they meant older in terms of heritage. But it’s still an unfair comment given how nice ale is.

forgotusername6• 4 years ago

Also given how until very recently American beer had a terrible reputation for being watery rubbish. Most of the American beers that make it overseas are still those watery mass produced products.

bagels2• 4 years ago

In a fairly similar circumstance, Shepard Fairey got sued (but settled) by AP for his 'hope' poster he created by coloring an AP photo of Obama.

acomjean2• 4 years ago

Acording to Wikipedia the judge told him to settle because he’d likely loose.

https://en.m.wikipedia.org/wiki/Barack_Obama_%22Hope%22_post...

I think the take away here is you draw someone famous move the hair, rotate the head so the source can’t be determined. If the source can be figured out it’s probably too close.

bambax• 4 years ago

Warhol, in contrast, viewed existing content as source material for his own work, which, of course, is what he did with Goldsmith’s photograph. Whether he would sue someone to protect his own work is another question

How is it another question? It's the exact same question. It would be interesting to take "orange prince", change the background color to green and print it on mugs & fridge magnets, and see what happens.

culturestate3• 4 years ago

How is it another question?

Because Andy Warhol has been dead for 35 years, while Lynn Goldsmith is very much alive.

We know what she would do - since she’s done it - but whether he himself would make the same choice is, as the author says, another question that we have no way to answer.

giantg24• 4 years ago

Didn't the article say the Warhol curators actually filed the suit first?

O__________O• 4 years ago

Example of the art:

- https://ibb.co/wyMdvvd

_________________

Regardless of the outcome, Warhol wins.

Art really comes down to two things: content and style.

Warhol’s style is definitely defined, it is copied all the time, and odds of a court enforcing the estate’s rights to that style are zero. Regardless of if he’s paid for it, no one will ever be able to take that from him — not even the American Supreme Court.

The photograph referenced in the case is not an original work of art. Photographer happened to get access to a celebrity and took a photograph that if combined with 1000s of other photographs by photographers on the same day of the same celebrity would not be distinctive — it literally deserves no protection.

Warhol, if alive, regardless of the outcome in court would have produced even more meaningful art based on the experience, which would have enriched the world.

The litigant in this case, unless case is thrown out has literally contributed nothing, deserves nothing — and if America rules in their favor, that is exactly what Americans deserve too. The litigant, if remembered, will not be remembered as an artist, but as the troll they are.

sbuk7• 4 years ago

Ironically, the image you linked completely disproves your point. The derivative work is identical to the point that it is an obvious copy. Warhol should absolutely have sought permission, especially since he and his estate have profited handsomely from the copy.

Aerroon3• 4 years ago

But you don't know whether you will profit or not before you make the work. And asking for permission after the fact is too late and might even weaken your fair use case.

treerunner• 4 years ago

It’s worth noting that this particular Warhol piece was done much later in his career after he had established his style. Usually he didn’t even execute the work, it was done by assistants in the studio. This painting of Prince is an example of Warhol as art business — which incidentally was one of his statements as an artist.

Opinion: bout the photo and the painting are actually not very good representation of either artists work. I imagine both the photo and the painting would be considered unimportant if it wasn’t for this legal wrangling.

There are many ways that this issue could be approached. For example, could Warhol be allowed fair use in execution but, post-mortem, his estate pay? After all, one thing that the author of the article did not go into is that this argument is really no longer about the creative act.

musingsole• 4 years ago

Despite your emphasis, I don't find that anything has been "obvious" or "proven" about these pieces. The fact of the ongoing lawsuit implies it's not definitive for the authorities involved either.

If you see it so clearly, it's because you're uninformed about or otherwise disrespectful to the actual social norms/rules at play.

jimnotgym• 4 years ago

Stupid thing is, I'm pretty sure he could have licensed the picture for what would have been a trivial sum for Warhol

Ekaros2• 4 years ago

So could this be applied to tracing of drawn art? That is taking someone else drawing and copying it and then altering some elements.

Aerroon3• 4 years ago

And memes.

rahidz• 4 years ago

And AI art.

autoexec2• 4 years ago

I'd consider Warhol's work to be essentially a remix. It's clearly different. It has a very different impact. Even though there's no denying where it came from, I doubt anyone wanting the photograph of Prince would be very happy if you gave them the Warhol version instead.

Legally, I expect Warhol to lose, but if he does it'll be because the law is wrong. We absolutely should be allowed to remix one or more existing artistic works into new works, and artists shouldn't be burdened with having to obtain permission to create them (although it's still polite to ask, we shouldn't expect art or artists to always be polite).

Hopefully the enforcement of copyright law, the chilling effects it has on artists, and the negative impact that it has on the richness and accessibility of our culture, will eventually encourage people to push for reformation of copyright law to bring it more in line with what it was originally intended to do.

em-bee3• 4 years ago

i don't believe remixing is popular enough for that. personally i think that there is to much junk art out there. (how many hours of video are there on youtube?) and freely allowing remixing will only increase the ratio of junk vs good art. i am not saying that all remixes are junk. it is certainly possible to create good remixes. but if half of all original works are junk, then two thirds of remixes are junk, or something like that.

now, i think that an argument can be made that remixes should be allowed to enable that one third of good remixes, and that the good always comes with the bad, and i agree. but i fear many don't, and would rather limit remixing in order to protect original works.

autoexec2• 4 years ago

i don't believe remixing is popular enough for that.

I suspect it would be a lot more popular if people didn't risk getting dragged into a courtroom for doing it.

freely allowing remixing will only increase the ratio of junk vs good art.

Remixing has the ability to take bad art and make it better. Most of everything is garbage, but fortunately nobody is forced to be exposed to it all either. People who don't want to spend their time looking outside of narrowly curated selections of available content or what's already gained popularity never have to. All art is built off of previous works, and even if someone creates a work that you hate, someone else may by inspired by that work to make something you love. It doesn't make sense to want to prevent the creation of new creative works out of fear that they might not be "good" in your opinion.

Even if, somehow, it did make sense to hinder the creation of new creative works copyright would not be the tool for the job. Copyright already has a job. Copyright is supposed to encourage the creation of new creative works. Sadly it is currently being used to suppress art and artists, which is why it is broken and needs to be reformed.

There are some people who want copyright to be as restrictive as possible. Very wealthy and powerful industries for example. They've spent a lot of time and money to try to convince us that copyright should be as restrictive and long lasting as possible, but that's entirely for their benefit and not ours. It's bad for art, it's bad for artists, and it's bad for the public as a whole. They've convinced us to muzzle each other and lock up our own culture so they can increase their profits. The longer it takes us to fix that, the more great art we lose.

shusaku• 4 years ago

It’s interesting because Warhol’s style is so iconic, that it almost feels like the rules should be different. You can’t look at the transformation in a vacuum, rather it involves injecting his entire artistic history.

etrautmann3• 4 years ago

I think that’s a bad reason - it essentially says that if you’re famous enough you can get away with whatever you want. The legal precedent of this would serve to protect established artists and punish less well know or up and coming artists.

theIV• 4 years ago

Reading this reminded me of the Kind of Bloop album cover dispute (Miles Davis photo “pixelized”): https://waxy.org/2011/06/kind_of_screwed/

pessimizer10• 4 years ago

Thanks for posting this, it was an interesting listen. The fact that every track exactly copied the improvisations rather than improvising around the tune (which I did not expect) says something about the merit of the photographer's argument, though. Although it doesn't say any more about it than the fact that the compiler got permission from everyone beforehand.

It's a separate work from Kind of Blue only to the extent that a different mix or running the tracks through a distortion pedal would be.

nonrandomstring10• 4 years ago

I have always thought that the fundamental toxic conceit of "Intellectual Property" lies in an obscure fear. And I think this case supports that.

To be clear, I'm not touching on legal or economic arguments about payment, rights, control or attribution. These may or may not address the many injustices facing creative people.

In the deeper spiritual conversation about ownership and acts of thought, is the spectre of fear; that one has passed one's creative peak. That you'll never make anything as good as that again. From that fear comes the rejection of creativity as an inexhaustible living process, and the urge to commodify, to cast the past in stone and build a fence around it.

This case, which is more formally about 'derivative works', is about stopping an art-form from living.

For me the antidote to that whole control pathology lies in Kahlil Gibran's "On Children": You are the bows from which your children (creations) as living arrows are sent forth. Real creators have the courage to let go.

johtso2• 4 years ago

I wonder how much of this kneejerk reaction can be rooted back to being taught in school that copying is bad. If someone's copying me, they didn't have to do the hard work I did, and therefor it's immoral, even if it doesn't cause any loss for me.

bluecalm3• 4 years ago

Well the loss you mention is not the only argument. The argument is about future incentives. If anyone is free to copy and fully use my work I will not do some of the work.

It's about where the bar is. Most people agree copying someone's else novel and selling it is wrong. Copying parts of it that went into popular culture? Making variations on some characters? Those are more interesting. We just need to find some reasonable rules to balance various incentives.

squeaky-clean4• 4 years ago

It does cause loss for you. How many hours you spent on that original work have been wasted. You could have just spent 10 minutes copying someone else.

To the downvoter, please do some free contract work for me. It causes you no loss.

egypturnash3• 4 years ago

Hi. I’m an artist. I have spent most of my life practicing my craft. I think that until we have abandoned the concept of “working for a living”, this line of thought is a bunch of wankery.

If I create something that people are willing to keep buying for decades without any more work on my part, then I have a nice source of recurring, passive income that I am very motivated to defend by stopping anyone else from profiting off of it. I am also a human being who needs to do things like take a break from working now and then so I don’t burn out. And explore new avenues of expression without worrying about spending a while making stuff that’s not good enough to get paid for. And work on big, weird projects. Having something that keeps selling without me putting in any work is great for all of those things.

The fundamental toxicity here is that we live in a capitalist hellscape, not that artists would like to use their skills to get by in said hellscape.

gus_massa3• 4 years ago

Would you prefer a communist hellscape where you only get paid if the Commissariat of Art likes it, or a monarchist hellscape where you only get paid if the Duke of Something is your patreon?

nonrandomstring10• 4 years ago

Hi. I’m an artist. I have spent most of my life practicing my craft. I think that until we have abandoned the concept of “working for a living”, this line of thought is a bunch of wankery.

If you seriously think that the deepest spiritual questions of why we create are "a bunch of wankery" then you are no artist. A producer of things, maybe. A very successful producer of wonderful, beautiful and desirable things perhaps.

But not an artist.

jawns• 4 years ago

The author argues that it would be okay to object to what Warhol has done if it were already well established that what he did was a violation of fair use, but that it can't already be considered well established because otherwise there wouldn't be a lawsuit about it.

But there are plenty of instances where clearly established precedents nevertheless require lawsuits for their enforcement.

giantg24• 4 years ago

How was the illustration actually created?

pessimizer10• 4 years ago

I think both sides are right, and that this is another example of why copyright is not a good abstraction. It ultimately doesn't make sense because the way we learn how to do things is by imperfectly copying each other. Being successful means to successfully produce a stylish, architectural variation of combinations of fragments of things that you've seen before.

Part of the quality judgement on a work is in the nature of its comment on what has come before. This is whether you're putting on a play, designing a skyscraper, or designing the API to a website that keeps track of people's coin collections. If you fail to stylishly or profoundly reference things that have come before, your art is probably bad.

edit: and by "I think both sides are right" I mean that I think the pieces of art are completely different to the point of barely resembling one another, just the shape has been retained. I also think that the photographer contributed as much to the work's construction as the artist, and deserves as much of the profit and say in the decision-making about how it is used. And I should use collective pronouns for the artist, because Andy Warhol likely just told somebody to paint on the photograph, and suggested colors, then approved the best of 10.

tgv• 4 years ago

When we learn something to make something (through copying), it's usually not our first idea to sell it. And in this case, Warhol didn't learn anything from Goldsmith.

I think the pieces of art are completely different to the point of barely resembling one another

I must have read a completely different article.

pessimizer10• 4 years ago

I'm just going to accept that if I put your urinal in my art gallery, it becomes my fountain. I'm going to accept that because I enjoy it, and because that is the consensus.

lotsofpulp6• 4 years ago

I think both sides are right, and that this is another example of why copyright is not a good abstraction. It ultimately doesn't make sense because the way we learn how to do things is by imperfectly copying each other. Being successful means to successfully produce a stylish, architectural variation of combinations of fragments of things that you've seen before.

Making copyright last 10 years only sort of solves this issue.

lurquer• 4 years ago

Warhol could have simply asked to use the photograph. If the photographer declined, he could find another photographer and another photograph and seek permission.

However, if there was something so special about that particular photograph that compelled Warhol to use it even without permission, then the argument that it was a ‘generic’ Prince photo falls apart.

Or, god forbid, Warhol or one of his minions could have taken their own photo of Prince…

amelius2• 4 years ago

I sometimes wonder: why do we so badly want artists to be able to make a living of their work?

Don't we want art that is pure and that is made by people like us (when we are not trying to make money), instead of by people who live in some completely alternate reality?

Copying has been a thing since the beginning of evolution. I'm ok with people making money through selling art, just don't bother me with human-made laws around copying.

hilbert423• 4 years ago

"…"I think both sides are right" I mean that I think the pieces of art are completely different to the point of barely resembling one another, just the shape has been retained."

I think here both sides are actually right in this instance—and I don't disagree with you saying that the images ”barely resembling one another" but I would not go that far (as I think there is a significant recognizable resemblance).

That I disagree with you isn't the problem per se—as it'd be a damn boring world if we all agreed or experienced the same perception—rather it's that in cases like this the judgment relies on a subjective analysis by the person(s) doing the judging and that everyone's subjective judgement is different, moreover, to further complicate matters, such differences are likely to alter over time.

Thus, if courts allowed it, this case could go on indefinitely with no one being adequately served. This is an obvious case where copyright law has broken down and it's clear the law needs to be changed.

It seems to me that royalties ought to be split in this instance but I don't want to get embroiled in a discussion about how the law should be altered as that's not the issue here.

Rather it's that we have to face the fact that current copyright law is broken in many areas and it desperately needs reform to make it fairer and less contentious. It needs more than just a fine tuning, instead it requires major reworking, and for that we need to bring a much more sophisticated and nuanced approach to the problem.

'Fair use' provisions are already under considerable strain by the hardened attitudes of many copyright owners—especially from large corporations, Sony, Disney, Elsevier, etc.—and tightening them further by a precedent in this case would likely have significant negative repercussions elsewhere. If the law is tightened writers and artists who don't have big pockets won't dare risk doing derivative works even if they plan differences that are much larger than those in this case and that will twart innovation (if the law becomes more restrictive then copyright holders are also likely to become more litigious).

There are also other issues that make copyright law unfair such as the unreasonable increases duration of copyright, excessive restrictions on the use of orphan works, the right to copyright works that are only trivially different to works already in the public domain and the absolute rights of copyright owners with respect to licensing—that is that copyright law does not acknowledge those who are in a position to copyright material are also members of society who, in many instances, have developed their talents at public expense (their education etc.) and in return they have some obligation to society (which implies that some form of enforced arbitration ought to be a part of copyright law).

I'm not advocating that rights holders not be paid fair dues for their works—clearly they should, but at the same time they should not be allowed to exploit consumers of copyright material as has so often happened in recent years.

The difficulty with this case is that a fair decision in this instance could likely result in a net increase in copyright restrictions which will only increase the unfairness of copyright law. It's why we need urgent copyright law reform—and that won't be easy given the many complexities involved.

pessimizer10• 4 years ago

in cases like this the judgment relies on a subjective analysis by the person(s) doing the judging and that everyone's subjective judgement is different, moreover, to further complicate matters, such differences are likely to alter over time.

I agree with you 100%. My judgement of lack of resemblance is based more on whether I imagine that the same person would want to use both in the same context, not on anything that I think anyone should respect. I just don't think you can draw a line. We need to move to a model where we are openly, explicitly granting and enforcing monopolies on the production of certain works in return for some societal benefit. Not just assuming that society always benefits when monopolies on reproduction are granted.

If we don't want whales to rush in and capture all of the profits when somebody produces a creative work, we can target that situation explicitly, rather than pretending that qualifications for being worth protecting are inherent in the work, rather than a legal construct. A pretension that creates a situation where a defense of the series of disposable Warhols can be to denigrate the photograph that they chose to base the series on. Judges and juries as art critics, trying to figure out how much of Blurred Lines is Marvin Gaye.

Worldblender• 4 years ago

A few of the best places to start such work on would be to focus on reducing the length of copyright terms and generally allowing non-commercial usages, redistribution/copying/similar, and modifications/derivatives. Because I think these two issues don't directly touch on the profit-making aspects, they may be easier to deal with rather than a full-on revamp of existing copyright laws or even abolishment of them.

That said, even these two issues aren't going to be easy to change at first, especially with big companies and some pre-existing laws like from the Berne Convention in 1909 (!) that have to be dealt with as well. All things that I definitely cannot change just by myself; at least we need more people onboard with copyright law reforms like what I said before any meaningful change is expected.

bsenftner• 4 years ago

Two points: 1) This goes back to the assessment that "the object" is not "The Art", it is the totem that represents the cultural milestone of The Art's creation date and position in cultural time and location, and "The Art" is The Artist proclaiming a vision/perspective they share to others. This is part of the reasoning that allows extremely similar works of art to be designated as unique - they are milestones for different cultural points in history and different intellectual perspectives.

2) 40 years ago, I dated the daughter of a major art collector; he owned the entire collections of a few major artists. He commissioned Warhol do to a Jean Cocteau portrait. Girlfriend's dad expresses anger one day, as Warhol is weeks late on his commission. He takes he daughter with him to Warhol's studio to complain, and upon return expresses utter disgust with Warhol and his process. He returned with the portrait, Warhol made it in 15 minutes upon Dad's arrival and complaint, seemingly with zero forethought. A Cocteau series followed, but GF's Dad was completely uninterested in Warhol after that point, calling him "an advertiser".

IMO, Warhol's fame and artistic perspective is exactly like P.T. Barnum, Warhol simply proved “There's a sucker born every minute” is also true for serious fine art. And that transference of suckers existing in the world of Fine Art, transforming their "foolish art" into "Fine Art" is Warhol's Art.

animitronix• 4 years ago

The problem is that this is a purely subjective issue, there is no objective test you can apply to determine whether or not something is a fundamentally original work or not. Even within this thread there are disagreements about if Warhol changed the image enough. Eliminate copyright, period.

RunSet• 4 years ago

The correct incentive to create intellectual property is intellectual currency. Other incentives are perverse and lead to a private entity capping the public well of knowledge to make their brand of bottled water a more compelling purchase.

Maursault4• 4 years ago

What about the model? Presumably Prince gave permission to be photographed (if he was in Goldsmith's studio), and it is always assumed public figures (and anyone) can be photographed in public without permission. But if the work generates significant revenue, how come the model is never entitled to fair compensation? If I was famous, or it seemed inevitable I would be, is there no way to use my natural rights to my likeness and sound of my voice to protect my investment (or privacy)? And of models that do generate significant revenue from their likeness, shouldn't their parents (and grandparents, and estates of great grandparents, etc. ad infinitum) be permitted to sue for a portion of the profits? What about the living subjects of songs?

The point is it is hypocritical to screw the model or human inspiration of the art, or owner of an animal or plant or object that is the inspiration, for the benefit of the art and whomever happens to own it. If you paint me and the painting sells for millions, or write a journalistic piece about me and millions of copies are sold, I want a piece of that, and I think I'm entitled to it, but more so, I want to use my copyrights to my likeness and name as legal deterrent to protect my privacy and prevent bad (or good) press.

Don't look at me, because you're necessarily reproducing my likeness upside-down twice in both your eyes and in your brain, and if you do look at me, you owe me fair compensation, because once seen I cannot be unseen. And stop reading my comment, because it belongs to me. Don't even think about quoting me without permission under threat of litigation.

em-bee3• 4 years ago

it works that way in film, doesn't it? actors get compensated for their contribution, not just directors and camera-operators, so models in a photo or painting should be compensated just as well.

ghaff7• 4 years ago

Professional models typically are paid. (And top fashion models can get paid very well.)

But that actress probably wants to be on that Vanity Fair cover shoot. And people who are famous in general for things other than modeling also generally want to get their photo taken by well-known photographers.

People do have rights to their images being used in marketing and advertising materials. I can't take a photo of you on the street and put it in an ad without your permission. But, no, you don't generally have rights related to me taking your photo in public and making a poster of it or otherwise publishing it. (In the US.)

stereolambda• 4 years ago

It's a little hard to tell if and how much you are being sarcastic. I don't see how people could expect payouts for just existing. You are already getting plenty of (often unseen) services and benefits from society, and you presumably pay back taxes to more or less get even. Fame already brings many benefits and opportunities by itself. Some people are famous against their will and I am sympathetic to that issue, but this is a wholly different discussion.

There is an argument that you might work to look a certain way (clothes, makeup etc.) for some professional reason, but then do it on a private property if you want to stop people from photographing you. Otherwise you're just grabbing public space for yourself unilaterally. Note that I made a similar critique of modern copyright in a recent thread, so I'm not really advocating for privileging artists over the objects of art.

pessimizer10• 4 years ago

I don't see how people could expect payouts for just existing.

I don't see how people could expect lifetime payouts when other people copy a photograph, but everybody has blind spots in their ability to empathize and understand other people's positions.

rrwo• 4 years ago

Wasn't there a similar case with the Obama Hope poster? https://en.m.wikipedia.org/wiki/Barack_Obama_%22Hope%22_post...

monetus• 4 years ago

Fairey sued for a declaratory judgment that his poster was a fair use of the photograph. The parties settled out of court in January 2011. In February 2012, Fairey pleaded guilty to destroying and fabricating evidence showing that he had used the photograph; in September, he was sentenced to two years of probation, 300 hours of community service, and a fine of $25,000.

Very similar, and more unfortunate for fairey than tfa. He is a graffiti artist, so there is that in regards to illegal art. I've seen him speak to Warhol's archetype before, and he resented the copycat nature of it pretty clearly. I think that is a bit ironic.

mdeck_• 4 years ago

The argument in this piece is a classic example of slippery slope-ism. The question of fair use, or of balancing between copyright maximalism and copyright minimalism, is a so-called line-drawing problem (given a spectrum of cases, deciding where the line of “ok” vs “not ok” should be). The article says that ANY decision in favor of the photographer/against Warhol would basically ruin fair use doctrine.

This proposition has barely a hint of truth in it. Especially considering how clever lawyers, SCOTUS justices included, can be in distinguishing one case from the next.

I’d hardly be worried.

6stringmerc7• 4 years ago

Only fair this would revolve around Prince - keep in mind he ADAMANTLY HATED FAIR USE and wanted it against the law for people to cover his songs without his permission. He said so in interviews. I believe he was very wrong on this point and he would’ve abused copyright worse than the RIAA from beyond the grave.

Warhol’s work is barely transformative to me, as in was there tracing paper involved? Or basically the same concept? That’s not transformative that’s derivative. That term applies and it’s not fair use as derivative. These two concepts are rather clear and those who would argue it’s transformative (probably Masnik who is a quack when it comes to fair use) instead of derivative (correct term) are wrong.

Just like Masnik and Pharrell who chicken little’d the Blurred Lines ruling that it would kill creativity in music! Huh, how about that? Old Town Road paid for its samples and was a smash hit. So, yeah, welcome to a re-run of some tired absolutist arguments that fall apart.

ghaff7• 4 years ago

wanted it against the law for people to cover his songs without his permission

IANAL but note that covering a song is not fair use. However, with music specifically, it is (normally/always?) possible to pay for a mechanical license [1] which allows a musician to pay to cover a song. The same concept does not apply to many other types of creative works. For example, a playwright can (and many do) refuse to allow their work to be performed by amateur theater companies or to have the content modified.

[1] https://en.wikipedia.org/wiki/Mechanical_license

aliqot• 4 years ago

You are correct however there is a grey area if they claim it is parody. As a cover it is not fair use.

6stringmerc7• 4 years ago

Prince wanted the mechanical license mechanism to go away completely for everyone because he didn’t like it. That’s what I’m talking about - he sued over the dancing baby which helped build support for fair use. This article is the same crap Masnik said about Blurred Lines that it would kill creativity and the author should be admonished for such easily disproven pearl clutching FUD.

jsmith452• 4 years ago

It is also worth remembering that a mechanical license is limited.

It allows you to perform a work yourself (privately) to create a new audio recording of that work[1]. What is known as a "cover". But other than sell the new cover audio as CD, mp3, etc, or have it get played on the radio or audio streaming services, there is not much more you can do.

It does not allow your cover band to perform the work publicly. (Normally this gets covered by the venue, either via ASCPA/BMI licensing, or via individual negotiation with the rights-holder, but in some cases, like temporary venue fully orgnaized by the band, the band may need to acquire such rights.) Remember that any form of live-streaming is also public performance.

It does not allow your cover band to create a music video, or to use your cover recording as background music in a video you create. (For either of these you need a "synchronization license" that the work holder can simply refuse, and there is no simplified ASCAP-like mechanism for handling these negotiations)

It may also surprise many to learn that recording artists are not technically entitled to royalties for use of their songs over the radio. Indeed, recording artists of any kind[2] only get royalties for digital music transmission when certain exemptions don't apply, and get no protection at all for non-digital transmission.[3]

The whole music copyright system is basically a giant mess, and does not work how a reasonable person would expect it to work.

Footnotes:

[1] Or to duplicate an existing audio recording if you also have permission of owner of the copyright for that particular audio recording.

[2] unless they happen to be the musical work copyright holder as well, which is not uncommon, but hardly universal.

[3] Realistically they were only granted this digital public performance right, because a digital transmission of a digitally recorded phonorecord is hard to distinguish from copying said phonorecord.

judge20202• 4 years ago

That’s not transformative that’s derivative. That term applies and it’s not fair use as derivative

Pedantic, but the law is pedantic: fair use works are inherently derivative of the work they're based off of. Fair use is just an exception to the 'must get permission' requirement of creating a derivative work.

6stringmerc7• 4 years ago

No, Fair Use must pass the four factor test, and you are wrong in your interpretation. Go look up the four factor test so you can correct yourself.

towaway154632• 4 years ago

I dunno, I prefer the Warhol over the original. Should art like this not exist or be heavily discouraged or controlled by licensing fees? Copyright seems to be stuck in a scarcity mindset. Especially for static images whose market far exceeds the ability of artists to keep up with. The bigger problem seems to me that artists still don’t have a great way to sell directly to their customers.

squeaky-clean4• 4 years ago

You need to consider the affect on the original as well though. Without copyright would Lynn Goldsmith have ever taken the original photo? They have a degree in Psychology, in a world without copyright protections why would she pursue photography and filmography rather than becoming a professional psychologist?

Sure she'd probably still own a camera as a hobby, but would she have taken weeks to follow touring bands?

MichaelCollins5• 4 years ago

Everything Prince ever made was derivative. Without the artists that came before Prince, Prince was nothing. His ego was out of control.

6stringmerc7• 4 years ago

Agreed. He chose opiate addiction over hip surgery because of his personal beliefs which he held more important than his health and eventually life. Not a good guidebook in my opinion.

jccalhoun• 4 years ago

My gut reaction looking at it is to judge the quality of the art but that isn't really the point. We shouldn't only defend "good" art. So that does get into the fact that fair use is a "doctrine" and so it harder to quantify. Would anyone confuse the photograph with Warhol's version? No. Warhol's look was so distinct that regardless of the photo used, it still looks like a "Warhol." So on that grounds I would say it is a transformative work and therefore fair use.

jcranmer• 4 years ago

One of the amici in the case has a poignant example of how insane fair use. In their brief (https://www.supremecourt.gov/DocketPDF/21/21-869/227996/2022...), on page 28, they have the example in the case in question (which the 2nd Circuit ruled was not fair use), as well as another example from another case... which the 2nd Circuit ruled was fair use, and reaffirmed that it was fair use in the question. Despite the transformations in the two cases being almost identical.

Madness.

brudgers3• 4 years ago

This article leaves out the relevant facts. [1]

See, http://copyrightblog.kluweriplaw.com/2022/05/09/andy-warhol-...

After Prince's death, Vanity Fair Magazine purchased an image rights license to run the Warhol painting on it's cover.

The original photograph was, at the time, also available for license.

Goldsmith argued that Warhol's work was commercially competing with their original photograph.

Note that the context was not space on gallery walls but the cover of a magazine, and there was not a question of whether the cover of magazine constitutes fair use...I mean the Warhol foundation would almost certainly have sued if Vanity Fair had used the Warhol image without a license.

To put it another way, the case is not about Fair Use directly, but about competing image rights. I mean, since nobody is going to confuse a magazine cover with an original Warhol, for the Warhol Foundation's fair use claim to stand, then Vanity Fair's cover would be sufficiently transformative to constitute fair use.

Not that there'd be anything wrong with that. Warhol's been dead 25 years. Seems like enough time for the works to be in the public domain, to me. YMMV.

[1]: The Atlantic seems to have given up on journalism in recent years...Jobs bought it in 2017.

joshu• 4 years ago

The competition you mention is directly part of fair use, specifically the fourth factor: Effect of the use upon the potential market for or value of the copyrighted work. https://www.copyright.gov/fair-us

brudgers3• 4 years ago

I am not a lawyer.

My understanding is that lowering the value of the original work is an argument against a particular use being fair use.

Which is to say that Fair Use is not intended to further commercial competition.

And that the purpose of copyright is to forestall commercial competition.

Of course I could be wrong.

williamcotton7• 4 years ago

Do images of soup cans or thoughts of fifteen minutes of fame come to mind when you’re viewing the Goldsmith photo?

Both Warhol’s works and Vanity Fair can be seen as celebrations of, well, celebrity vanity.

What I’m getting at is that it seems Vanity Fair chose the Warhol for the cover because it means something very different than the original photograph and that Warhol’s baggage could easily be what the editors needed for the intended effect.

brudgers3• 4 years ago

Sorry for not being clear

I’m not arguing that Vanity Fair’s image choice wasn’t a better way to convey the intended mood of the moment.

The painting is fair use.

The magazine cover isn’t the painting.

codazoda• 4 years ago

I don’t know who’s right here but copyright constantly stops me from creating art.

I would probably only hang it on my own wall or sell 25 copies in a cheap zine but I’m terrified someone will sue me. So, I don’t create art that I envision. Maybe the world is better for it; maybe it’s worse.

One of my recent art projects was to create a series of images in the CGA palette of the 1980’s but using images of modern technology. It would probably end up very similar to this example. I’ve spent tens of hours trying to perfect the look I wanted but I abandoned the idea because capturing my own images is impossible in some cases that I can imagine.

MichaelCollins5• 4 years ago

https://i0.wp.com/itsartlaw.org/wp-content/uploads/2018/12/a...

Fair use? I think yes. Was Andy Warhol an overrated hack? I think also yes.

Animats• 4 years ago

This is an argument over not fair use, but transformative use. How much transformation of an old thing has to take place before it's a new thing? That's very much an issue now, because ML systems have become very good at transforming old things into somewhat similar new things.

Classically, such transformation was a lot of work. A standard art-school exercise is to hand-copy a classic painting. Possibly with variations. Because that's quite a bit of work, it generally hasn't raised serious copyright issues. Now, though, it's very easy.

Much music litigation revolves around this. There are only so many note patterns that sound good. Someone has generated all 69 billion possible 8-note melodies and released them into the public domain, just to mess with any claims of melody originality.[1] Images are a bigger space, though.

[1] https://www.theatlantic.com/technology/archive/2020/02/whats...

gnicholas• 4 years ago

Yeah I was disappointed that the article didn't even mention the fair use factors, or discuss how the upcoming case would affect some but not others of them. For reference, these are the four factors:

• the purpose and character of your use

• the nature of the copyrighted work

• the amount and substantiality of the portion taken

• the effect of the use upon the potential market

6stringmerc7• 4 years ago

The whole conclusion is putting forward a speculative chilling effect about a case that doesn’t matter to anybody but attorneys and hacks.

It’s a tired argument and it’s not only lazy but easy to disprove.

WalterBright6• 4 years ago

Yeah, should probably give up on copyrighting sequences of notes. Copyright the arrangements instead. An awful lot of what makes a song good is the arrangement.

jraph• 4 years ago

I like the idea, but isn't an arrangement a set of sequences of notes assigned to instruments / voices? Fundamentally, a "documented" sequence of notes? (where a note has a duration, an instrument, a start time, a function defining the dynamic, a pitch (possibly a function), possibly an intent, possibly a part of the lyrics if applicable).

Where to draw the line?

egman_ekki3• 4 years ago

Let's not forget also about Library of Babel (https://libraryofbabel.info/) which includes all texts ever written and that will ever be written up to 3200 characters. I truly wonder how that website is allowed to exist and why they don't claim copyright for every other website that has been created since.

BTW, it also includes all images: http://babelia.libraryofbabel.info/

charcircuit• 4 years ago

vlunkr• 4 years ago

Do you truly wonder that? Unless someone takes legal action fair use doesn’t take effect. Why would anyone bother to take legal action against them? This is essentially an art project.

AStrangeMorrow• 4 years ago

Does it truly contain all these texts? It seems more like it can generate any of these texts, but they are (obviously) not pre-generated and stored anywhere.

If we consider only lowercase non accentuated English characters and a few additional basic chars (space.,? etc), let's say 30 base characters, we are looking at 30^3200 combinations. Which is a number made of 4727 digits. Estimated number of atoms in the universe is 10^80. So basically nothing compared to this 30^3200.

Them claiming copyright over this would be a bit silly as the texts don't truly exist but only have the potential to be generated.

comex• 4 years ago

This is an argument over not fair use, but transformative use.

I’m going to be pedantic, but: as far as US law goes, transformative use isn’t separate from fair use. Rather, transformativeness is a key test used to help establish whether something qualifies as fair use.

powera• 4 years ago

America is a declining empire, and it appears to be a law of history that declining empires establish increasingly cumbersome regimes of copyright regulation.

So I must assume that the side wanting to restrict fair use further will win.

diebeforei485• 4 years ago

I think things are at the point where having more clarity would be more helpful than having a bunch of settled cases with no clear precedent, because they were too expensive to litigate.

1vuio0pswjnm7• 4 years ago

If the title chosen by The Atlantic author is so objectionable that HN submitter/moderator must change it completely, then why not find a different source with a more agreeable title on the same topic. There is no shortage of articles on this case from a variety of sources.

Alternatively, HN could include both the author's title and the "HN title" in its HTML but only display the HN title.

When I extract URLs from HN HTML I tend to ignore the titles and this is one reason why.^1 I am interested in objective identifiers. HN can change the title, but it cannot change the URL.

Someone searching HN by title for an article from a particular publication may not be able to find it as easily as they should. Similarly, someone browsing all submissions from a particular source, looking for a particular title may miss it because the original title has been editorialised.

1. When I retrieve www search results into a custom SERP format, I actually drop everything except the URL. I never see "objectionable" titles.

A legal dispute that will test the limits of fair use

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