Supreme Court Rules Andy Warhol's Prince Art is Copyright Infringement (petapixel.com) 68
The United States Supreme Court has released its opinion on The Andy Warhol Foundation v. Goldsmith case, finding in favor of Lynn Goldsmith and stating that Warhol's use of her photo was not fair use. From a report: For those unfamiliar, the Warhol v. Goldsmith case has been ongoing for several years and involves photographer Lynn Goldsmith's photo of Prince and Andy Warhol's use of that photo which his Foundation argues was fair use. The details of the case to this point can be read in prior coverage, but in summary, Goldsmith had been victorious in the most recent court's decision leading up to this point. The Andy Warhol Foundation had appealed the decision to the Supreme Court, who has affirmed the lower court's decision and sealed Goldsmith's win.
In an 87-page [PDF], seven-to-two opinion written by Justice Sotomayor, the Supreme Court has ruled that Warhol's use of Goldsmith's Prince photo was not transformative enough to warrant fair use and was instead a violation of her copyright. Justices Roberts and Kagan dissented. "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," the court holds. "The 'purpose and character' of Andy Warhol Foundation's (AWF) use of Goldsmith's photograph in commercially licensing Orange Prince to Conde Nast does not favor AWF's fair use defense to copyright infringement."
In an 87-page [PDF], seven-to-two opinion written by Justice Sotomayor, the Supreme Court has ruled that Warhol's use of Goldsmith's Prince photo was not transformative enough to warrant fair use and was instead a violation of her copyright. Justices Roberts and Kagan dissented. "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," the court holds. "The 'purpose and character' of Andy Warhol Foundation's (AWF) use of Goldsmith's photograph in commercially licensing Orange Prince to Conde Nast does not favor AWF's fair use defense to copyright infringement."
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Professional photographers would hate that interpretation. So many lock people in by copyrighting photos so only the photographer can make copies.
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And that's a problem for the society at large, how exactly? That someone's lawyers and lobbyists managed to invent a legal means to extract monetary gains from something that'd otherwise be free doesn't mean their "win" should be preserved.
Re:Maybe photographs shouldn't have copyright? (Score:4, Interesting)
Say I have a photo of a dead relative and the photographer is long out of business. The photo is basically abandonware in software terms. Making a copy hurts no one. However doing so is breaking the law. I’d say that’s a problem for society.
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Note that your example of copying a picture of a dead relative for personal use would only be a civil matter, not a criminal one; it's only criminal if you do it for financial gain. That means the worst that could happen to you would be the photographer would be able to sue you for unauthorized copying of their work. Unless they registered the copyright, they would only be able to recover actual damages. IOW, the worst that could happen to you is that you'd have to pay them what you would have had to pay
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However doing so is breaking the law.
Not really.
a) normally ignoring copyright is not breaking any law, it is law breaking when the copyright owner wants compensation and you give none (I simplified). In other words: normal law breaking means, the police nad the state attorney are after you, as soon as they hear about it.
b) was it a random photographer or an artist making an artistic photo? If just a random party guest made a photo from your relative when both were on the party, the photographer hardly has
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Professional photographers would hate that interpretation. So many lock people in by copyrighting photos so only the photographer can make copies.
Yeah, that's what copyright is for, we get it.
If you want the rights to the photo, pay for the rights, or take the photo yourself. And welcome to capitalism, where things have the value we decide they do in realtime.
Re:Maybe photographs shouldn't have copyright? (Score:5, Informative)
There are times when photographs or video are not copyrightable, like automated security footage or the infamous monkey selfie . While modern cameras have automated a lot of the choices photographers used to make (like exposure and focus) there is still choice in how the subject is framed, when is the right moment to click the shutter and even more it the subject is specifically lit and posed (which I believe is the case of the Prince photo). There's a reason professional photographers still exist in a time when everyone has a camera on their phone.
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The guys laying pavement tiles also make choices how to fill a shape that doesn't match an integer number of tiles, and their choices might require quite some skills that are not obvious to those who never tried laying pavement. So why should photographers get copyright while tile layers do not?
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If a logo can be copyrighted so can a pattern of tiles.
Re: Maybe photographs shouldn't have copyright? (Score:2)
There is a whole, whole lot of caselaw on this. Brandir v. Pacific Lumber [justia.com] explains the law will while reaching an apparently unfair result regarding those undulating bike racks you will start to see everywhere. IIRC, the design is too functional for copyright or design patent, and not novel enough for a real patent, thus an apparently perfect blend of form and function has no legal protection and can be copied at will.
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So why should photographers get copyright while tile layers do not? ... or because of: oh, the law does not say that a pattern of tiles has no copyright. Facepalm.
Either because the law says so
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Also, the "transformation" of the photo was not large enough according to the ruling. As well the Andy Warhol Foundation used the transformed work to make money, which again disminished the fair use claim. It's a very long ruling, but there are a lot of guidelines clarified about what is or is not fair use which is useful since it's been 25 years since the last such ruling which was before the age of meme-generators and mass market imaging filters and editors.
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There's a reason professional photographers still exist in a time when everyone has a camera on their phone.
Largely because people still buy their BS. People still think they need one when in most cases they don't.
Re:Maybe photographs shouldn't have copyright? (Score:4, Insightful)
Photography actually has more creativity than you think.
For example on the news, you can have photos from the same event, while providing evidence for opposing narratives.
A burning garbage can can look like the only source of warmth for a poor sole who is struggling to survive. Or it could show a wraith of damage of public property by violent and unpredictable group of people, who are burning down the city.
Or a small group of people can look even smaller, or much larger. All with cleaver photography.
With the use of lenses, zoom, focus, camera angles. a picture can tell a different story or show a different side of things.
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I mean, it's just an image of something that was already there.
That is the stupidest take on photography there is. There's a reason why people spend upwards of $10k on wedding photographers rather than just taking Uncle Bob's family snaps form the event. The photographer creates the scene, and modifies it with artistic intent, they don't just record it blindly.
In the case in question the photographer would have been in control of every tiniest detail of the portrait, makeup, strands of hair, the slightest change in facial expression. These kinds of shoots often involve
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Should a photograph be copyrightable? I mean, it's just an image of something that was already there.
Same thing could be said of a portrait or landscape painting, you're only changing the tool used to capture the scene.
Creating really good photographs is a talent that combines technical and creative skill. I think that qualifies for a copyright.
I would say they should not be copyrightable unless the scene is arranged by the photographers,
Arguably every photo. Changing the angle of your camera, or deciding on the moment to take the shot, is arranging the scene.
and even then, getting someone's outline from a photo strikes me as something that should be fair use.
I'd probably agree here as well. In this case I doubt most people familiar with Warhol's work would recognize the relationship to the original
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Should a photograph be copyrightable? I mean, it's just an image of something that was already there.
OK, you take it then.
Oh, you weren't there with a camera, access, and skills?
ssshhh
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Well, is there any reason why a magazine would prefer a pro photographer's picture over one gramma took with her phone? Presumably, there is something special about the photog's pic that makes it worth paying money for, more money than gramma's could fetch. If it's worth paying money for, then the right to earn that money deserves protection, since the photog must have some value added in his particular pic.
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Warhol could have changed the hair a bit, changed the angle of the face a little, and done shadowing a little differently and then it would have been fair use
No it would not be fair use. It still would be a derived work!
Get a clue about copyright, before you get yourself into trouble with that _idiotic_ attitude.
Seriously, how stupid does one need to be to believe the bullshit you just wrote is true?
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No, as it was it was initially it was a derived work, which is why Warhol paid Goldsmith for the license to sell the one he sold while he was still alive. The Warhols in this case were ones he made while deciding which one to initially use and the estate decided to sell well after he died. If he had significantly transformed the image beyond color and light shading, it very well could have been fair use but he did not. This entire thing was the estate being a bunch of greedy fucks.
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If he had significantly transformed the image beyond color and light shading, it very well could have been fair use but he did not.
No, it would not.
I suggest to read the law.
This entire thing was the estate being a bunch of greedy fucks.
Of course.
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There's a lot more to making a photo than pushing a button. You say it's "an image of something that was already there," but that implies that, just for starters, you have to go there to record the image. And it sounds like you've never used anything more complicated than a phone camera. On something like an SLR, getting the image you want (note the emphasis implying specific intent) can take a fair amount of effort and skill. Once you record the image, even how you choose to display/reproduce it is an arti
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i watch a lot of photography tutorials because i want to become a painter. Even though I will never be using photo references but always live models.
still, what I often see is that a lot of work goes into a photoshoot. with pretty expensive equipment. professional photographers usually take 100-200 photos then curate them all to pick s best set. this often gets highly edited on photoshop. then there's warddrobe, backdrops, props, lighting, a make-up artist and the studio space or sometimes a hired location
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If you can take a picture of something and use it, you should be able to paint a picture of a photograph and use it.
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One can argue, someone who is really good at their job, often makes it look like it was a zero effort work.
Say you watch a cake decorating video, you are like, I can do that too, super easy. Then when you actually try it, you end up making a big mess.
Or heck at work, there are often problems that are spinning around all the business sectors as something unsolvable, when it comes to be, I do a 5 line script that will do the job. I can show that script to non-IT folks and they may understand it, and make sen
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Zero Effort Indeed (Score:2)
Marilyn Monroe should've sued him too.
And Campbell's Soup.
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I don't know how Marilyn would have felt about it, but I'm 100% sure that Campbell's soup enjoyed the free advertising [campbellsoupcompany.com]. Warhol may have been a weird character, but he was never disrespectful to their soup can.
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If it can* be argued the soup cans were a political commentary on mass consumption, then Campbell's may not have a case for getting royalties. McD is often used in political art to represent mass consumption and consumerism gone wrong.
* No pun intended
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I don't know the history of those works. In this case it was a commissioned work where the commissioner at that time licensed the photo, but then later the Warhol foundation decided to use the work without a licence (Andy Warhol died in 1987).
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It's interesting that the court was divided NOT according to its usual ideological lines: Roberts and Kagan were the only dissenters.
What things boil down to is that each justice rendered a purely aesthetic (and not legal) judgement: to what degree did Warhol "transform" the source photo? I happen to agree with the minority, that Warhol transformed the photo significantly, and added new artistic value. But this judgement, like nearly all such in aesthetics, has no empirical standard of proof, no way to meas
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Agreed, what stood out to me in this article was that Kagan and Roberts aligned. Weird.
Back in the day I took it as a matter of faith that the Supreme Court was a distillation of the best and brightest legal minds. As I matured I first saw that it had to be the best and brightest legal mind of the same political party that was in power at the time of a vacancy on the court.
Then for select opinions I began to listen to longer than soundbite recordings of cases. Wow, that was an eye opener. The question
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The work is not a composite, the works individually are each a rather small modification of the photograph and for copyright each will have to stand on its own. A composite work would probably have had better odds of being fair use.
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Weird Al actually asks for permission. For instance - Chicken Pot Pie
https://en.wikipedia.org/wiki/... [wikipedia.org]
Re:Ranks up there... (Score:5, Informative)
Warhol licensed the photo to make one derivative work for Vanity Fair. He made a series of variations, and VF chose and published the one they wanted.
FF years later when Warhol dies they chose to use the other unused variations that were not covered by the license, and they choose to try to worm out of paying by claiming it's transformative.
It was a bullshit excuse, and a simple case.
Re: Ranks up there... (Score:2)
It's because the summary is incredibly misleading. The SCOTUS ruling only states that this specific use of the image in question was infringing. Not that the picture itself was. In this case the photographer's photo was going to be used, but than the magazine discovered they could license warhol's version for less, while using it for the same exact thing.
Not a new controversy (Score:2)
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It's a minor point, but you're probably thinking of Roy Lichtenstein, not Andy Warhol, when it comes to reproduction of comic book art. He's the one who's famous for creating massive blow-ups of comic book panels, complete with Ben-Day dots.
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Personal opinion (Score:1)
Surprised it's a Supreme Court case (Score:2)
info (Score:5, Informative)
Y'all don't seem to understand what this ruling is about. Warhol paid the artist to use her picture. That implies a license to make a work of art using the picture. The work of art included multiple versions of the image. Then Warhol sold the right to use it to a magazine, which did NOT use the entire work of art, but only one of the multiple variations of the portrait, and unlike Warhol gave not credit or money to the photographer. So ultimately it is like taking the original photograph, and just applying some photoshop hacks to it, not putting a picture of Warhol's painting into the magazine.
Scotus got it right this time. This is not a decision about art, but about commerce.
Re:info (Score:4, Insightful)
No, because the photographer's original agreement was basically that this would be treated and credited as a joint work. i.e. a Warhol image based on Goldsmith's photograph. And when it originally appeared in the magazine that is what was done. If Warhol or the magazine wanted different terms, they would have needed to negotiate them at the time, they can't just unilaterally do whatever they want because it has been a while. I don't understand why this needed to go the the supreme court - this is a simple case of a magazine using an old image without checking how they are supposed to license it completely enough. The usual thing to do is to pay the photographer once it comes to light that they also had an interest in the work. That probably would have cost way less than this lawsuit.
I'm worried that this was basically the Warhol estate trying to get more money out of a bunch of work that probably has similar attribution problems. They seem to think that Warhol could take any old photo and "do his thing" and the original photographer's interest just evaporates. That is just asinine. It seems clear that Warhol or someone working with him generally went through a process of selecting a good photo to work from. That photo was almost always copyrighted because it was taken by a professional photographer, duh. Thus it is necessary to also license that photo. Yeah that's a pain, but that's how copyright law works.
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Warhol is dead you moron. And he well realized the work was derivative which is why he paid Goldsmith for the work he did sell. This is his estate being a bunch of greedy fucks and trying to sell all the variations Warhol made while deciding which one he wanted to sell.
This is why "fair use" is an abominable doctrine (Score:2)
Fair use is an abominable doctrine because you cannot know ahead of time whether a particular expression is legal or not. It depends on the artistic opinion of whatever judges it ends up in front of.
FWIW, I'm totally unfamiliar with this case, and I think that Warhol's painting of a can of tomato soup was not particularly transformative. But I also think it was a legitimate "artistic" expression. (I'm not so sure about his signing commercially produced cans of tomato soup.)
It your feeling is "you're not
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Fair use is an abominable doctrine because you cannot know ahead of time whether a particular expression is legal or not.
No. There are clear earmarks written into the law for what defines fair use.
You could argue that every law is "an abominable doctrine" because you can always find edge cases, and you can always find a lawyer (if you have enough money) to argue the exact wording of the law, but fair use is really no more arguable than any other law, and a lot less ambiguous than some.
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So what ARE those "clear earmarks"? You may know, but I've never encountered a description from a trustworthy source (and rarely from any source).
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So what ARE those "clear earmarks"? You may know, but I've never encountered a description from a trustworthy source (and rarely from any source).
From the copyright office:
107. Limitations on exclusive rights: Fair use
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 particul
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You may find that clear, but I sure don't. And I believe courts have often made different decisions on the same use. Listing criteria doesn't tell you where the line is drawn.
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You may find that clear, but I sure don't. And I believe courts have often made different decisions on the same use.
No more so than pretty much any other law. When you get down into the weeds, you can always find edge cases.
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So what ARE those "clear earmarks"? You may know, but I've never encountered a description from a trustworthy source
Why not just read the law?
https://www.copyright.gov/titl... [copyright.gov]
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Given that Warhol paid Goldsmith for the work he did sell, it's pretty clear he thought it was derivative.
Sounds like hope (Score:2)
The only real crime is (Score:2)
Getting between a wealthy person and a dollar.
Chain reaction? (Score:2)
The Warhol estate should sue Trump for copyright infringement on Andy's hair.
Expect this to hit the "AI art generation" systems (Score:2)
This decision sounds directly applicable to the AI art generation programs trained on artists' work.
the dead artist has a foundation (Score:2)
which seeks to maximize it's profits on art of the dead artist. it shouldn't even be able to do that in the first place.
this case tells you a lot about what is wrong with the current state of copyright.
Overrated (Score:2)
This will get me Troll points, but Warhol was an overrated piece of shit. EOM.
No Prince v. Cariou? (Score:2)
I would have thought that precedent in the decision of 'transformational use' in Prince v. Cariou (different Prince! see, e.g. https://www.theverge.com/2013/... [theverge.com]) would have significant bearing on this case.
But I searched the SCOTUS doc and ...there's not even a single mention of Cariou? They do nevertheless address whether the "Orange Prince" constituted transformative use, deciding that in this case it really didn't.