Supreme Court to take up dispute over Andy Warhol's use of other's photograph

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momus

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Vanity Fair magazine once paid a photographer to take photos of Prince, then bought the licensing rights to them. Later they hired Warhol to make silkscreens of the photos in his signature style. The Warhol foundation wants to reissue the works, but the original photographer says they don't legally have the to right and is suing.

It's a very interesting case. The question seems to be...... what is a copy, and what is a directive work based upon someone else's imagery? Should the Warhol foundation be allowed to reissue these works?

To me, unless a work is a direct copy, you can do what ever you wish w/ it.

 

Sirius Glass

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I strongly disagree with the use of "transformative" to screw someone over. If one cannot produce their work from their own originality, then they need to just quit and give up. Transformative has always been a weasel word to cheat an artist or photographer. If you had written, copyrighted and sold a book and I came along and republished the book with a larger size first letter of the title, are you telling that you would be happy with me pirating your book and making a large income?
 
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AgX

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Because of your controversy the legal aspect comes in...

(Over here in Germany art legally basically supersedes intellectual rights. Problem is whether the new work then is art... business for experts and lawyers.)
 

Don Heisz

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I think the photographer is in the right. If I take, say, @momus' negative and make a print and sell it as my own, I'm obviously in the wrong. Well, a silkscreen - even divided between several screens to make it colour - is just a way of making a print from the original.

Drawing from a photograph is still obviously copying but is not a way of making a print of the original. It's mediated through the person doing the drawing. But what if they're so good at copying that the result looks like a print from the original? Then there's no visible reason that should not be a reason to sue.

However, it is worth noting that the various multicoloured Marilyn Monroes are more popular than the photo from which they were made. Do they have more artistic merit? They occupy a larger place in the culture.
 
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John Koehrer

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Dollar to a donut says the original photographer never thought outside the box far enough
to envision what Warhol did.
 

DWThomas

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I'm thinking the OP meant "derivative work" not directive? (Dagnab spellchuck 🙂).

I am aware of art associations specifying their competitions will not accept derivative work based on another artist's work. But the whole business -- differing style, differing media, differing breakfast cereal -- can quickly descend into how many angels can stand on the head of a pin, etc., etc. The truly large cases make a lot of money for lawyers.

(Fortunately my skills are limited enough that even an attempt to directly copy something may be so different as to not be noticed as derivative. 😳)
 
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DREW WILEY

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I'm sick of everything Warhol anyway. A new era of cliches is long overdue.
 

Mike Lopez

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I'm sick of everything Warhol anyway. A new era of cliches is long overdue.

I recently heard of this photographer who has mostly been under the radar and might be a suitable cliche substitute, provided enough people start copying him. His name is Ansel something or other…let me get back to you. 😇
 

Sirius Glass

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I recently heard of this photographer who has mostly been under the radar and might be a suitable cliche substitute, provided enough people start copying him. His name is Ansel something or other…let me get back to you. 😇

He only put photographs on coffee cans and those were his own photographs not something transformative.
 

Mike Lopez

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Robert Adams has been mentioned quite a bit on this website lately. Here's something from one of his essays:

"For every Atget, Stieglitz, Weston, or Brandt who remain visionary to the end, there is an Ansel Adams who, after a period of extraordinary creativity, lapses into formula."
 

halfaman

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It is very difficult that a work that remains in the same artistic plane than the original, like an image based on an image, is going to be "new" and therefore out of copyright restrictions. In this particular case I think like Vanity Fair did decades ago, that it is a "derivative work" and needs the author license (which can be revoked by the way).
 
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VinceInMT

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……If one cannot produce their work from their own originality, then they need to just quit and give up….

I tend to partially agree with this aspect of Sirius’s comment. While we are all influenced by those who came before us and, certainly for many, we tried to recreate works of the masters as a way of learning, at some point the training wheels have to come off and we need to search our visionary souls and do something new and unique if, for no other reason, to push ourselves beyond where we were.

We see something similar going on in the music world with this reliance on “sampling.” I mean, really? Yes, I know, that songwriter has lifted melodic phrases and chord progressions from others long before recording came along, sometimes even unknowingly, but there is still room for originality and its rewards.

And, back to the extract from Sirius I quoted above, maybe the suggestion to “quit and give up” is a bit harsh. I’d suggest that if the artist is stuck, then move to a different medium and see if creativity becomes unblocked. While I still do quite a bit of photography, over the last decade I’ve moved more to drawing as it has it’s own unique challenges and forces me to think differently about my subject matter.
 

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I judge the work to be transformative and that Warhol did nothing wrong, but it's anyone's guess what the current supreme court will do with this case. I won't be surprised with a 5-4 in either direction.
 

halfaman

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We see something similar going on in the music world with this reliance on “sampling.” I mean, really? Yes, I know, that songwriter has lifted melodic phrases and chord progressions from others long before recording came along, sometimes even unknowingly, but there is still room for originality and its rewards.

If the sampler is an exact and clearly discernable chunk from another person work... you are dead! (legally speaking) The whole piece can be considered "derivative" and you need author's license to use it, at least in the UE.
 
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I judge the work to be transformative and that Warhol did nothing wrong, but it's anyone's guess what the current supreme court will do with this case. I won't be surprised with a 5-4 in either direction.

If you think about it, Supreme Court decisions should be close. If cases were so clear that they wind up 8-1 or 9-0, they should never had gotten there in the first place. It should have been resolved at lower levels with the Supreme Court not even being bothered.
 

jtk

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DREW WILEY

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Since I happen to have a family member who has actually argued and won Supreme Court cases, there's no tellin'. It's all about technical jargon and nuances of law, how the argument is specifically presented, and then finally, the underlying bias of the individual philosophies of the Judges. And the present Court is a pretty ideologically oriented batch. Common sense would surmise that what Warhol did was no more egregious than what Roy Lichtenstein did copying comic books and enshrining Donald Duck in art museums. But there are two key differences. For one thing, common sense has been outlawed in our court system. For another thing, the Duck could sing better than Prince, so gets more respect.
 

Andrew O'Neill

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When I was a kid, I used to like Campbell's soup.

Me too. In fact, I grew up on it. Bean With Bacon. Scotch Broth. If it wasn't Campbell's soups, it was beans on toast... Tried some Bean With Bacon a few years ago. Took one spoonful, and dump the rest. Gross! Also, I don't remember the cans being so tiny! Much larger when I was a kid.
 

MattKing

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The Supreme court might say that the word transformative is not clear enough and send the whole thing back to Congress to re-write the law to include a specific description of what's allowed. They'd only apply it to this case so previous decisions would stand as decided earlier.

If they did that, the Court would be just ducking their primary responsibility - to interpret the law in the context of the facts before the Court. The Court's job is to come to a decision. If the result of that decision isn't to the legislature's taste, the legislature has the power to change the law.
 
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Me too. In fact, I grew up on it. Bean With Bacon. Scotch Broth. If it wasn't Campbell's soups, it was beans on toast... Tried some Bean With Bacon a few years ago. Took one spoonful, and dump the rest. Gross! Also, I don't remember the cans being so tiny! Much larger when I was a kid.

Your hands were smaller then. :wink:
 

MattKing

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If you think about it, Supreme Court decisions should be close. If cases were so clear that they wind up 8-1 or 9-0, they should never had gotten there in the first place. It should have been resolved at lower levels with the Supreme Court not even being bothered.

In a lot of cases, the matter has come before the Court because there are conflicting decisions on the issues involved coming out of different cases decided in the various lower Courts of Appeal. If the current law on the issue goes one way in one Circuit, and another way in another Circuit, then the Supreme Court gets to resolve the inconsistency.
There are vast numbers of cases coming out of the lower Courts, all of which have the potential to have precedential value. Most precedents don't come from the Supreme Court, because the Supreme Court decides so very few cases.
 
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