US Supreme Court take up & decision: copyright dispute over Andy Warhol's use of Lynn Goldsmith's photograph of Prince

[Raghu Kuvempunagar]

Yayoi Kusama

I had no idea who this artist is. So out of curiosity I asked AI to give me "highly detailed painting of Mount Fuji by Yayoi Kusama" and I was quite impressed by what I saw:

Is this derivative art? Is it art?

 

[Alan Edward Klein]

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.

The Supreme Court passes on most cases that are appealed to them. It usually requires four of the nine justices to agree just to even hear the case. Why would they bother if they figured it was already decided constitutionally?

First, cases decided in Federal Court are appealed to the Appellate Division of the Federal Court system. They get the first shot at ruling on constitutionality. It only is reviewed by the Supreme Court if they figure the Appellate Division may have made a mistake or there is some other reason that their ruling would be required. In any case, there's not enough time for the Supreme Court to listen to every case brought before it, and most don't need to be.

 

[Alan Edward Klein]

I should also add that the court determines what laws mean separately from their constitutionality. If a law is vague, such as may be in copyright acts, they can rule the law unenforceable and send it back to the Congress to change it if they want. Otherwise, the law will die.

Of course, copyrights and patents are particularly interesting, as they are required by our constitution. But Congress defines its parameters such as the length a patent or copyright exists, transformative requirements, etc.

Courts have ruled that laws must be clear and not open to different interpretations. The public should not need a law degree to understand its rules. If they do not meet these standards, legislation will be declared null and void by the court. So if the court agrees that in this case it's transformative or not, will the next time be open to similar confusion? If so, the Supremes should throw out the legislation.

 

[Sirius Glass]

Only coffee cans? You really don't get away from your computer much, do you?

What do you not understand about a light touch of humor. You must have a glum life.

 

[Sirius Glass]

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."

It worked for Ansel, how do you stack up to Ansel?

 

[jtk]

I had no idea who this artist is. So out of curiosity I asked AI to give me "highly detailed painting of Mount Fuji by Yayoi Kusama" and I was quite impressed by what I saw:

View attachment 313193

Is this derivative art? Is it art?

Beautiful. Improvements on millions of much less beautiful Mount Fuji's.

 

[MattKing]

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.

Why would they bother if they figured it was already decided constitutionally?

Courts have ruled that laws must be clear and not open to different interpretations. The public should not need a law degree to understand its rules. If they do not meet these standards, legislation will be declared null and void by the court. So if the court agrees that in this case it's transformative or not, will the next time be open to similar confusion? If so, the Supremes should throw out the legislation.

There is no such jurisdiction in the Courts - either yours or ours. If legislation is within the Constitutional authority of the legislature that enacted it, the Courts must interpret it as best as they can. They often complain about poor legislation, but can't "throw it out". They are pretty good though at finding ways to get around problems using the particulars of the case before them.

More central to the subject of the thread, the issue of "transformative" work is an example of how important the role of the courts can be. Andy Warhol's silk screen images use a process which is technologically similar, but different, from the process used to create the original image. Vanity Fair then used a different process to arrange and distribute the Andy Warhol work. The Courts have the ability to interpret the copyright legislation in light (pun intended) of the effects of time and technological change on the market for copyright, and the interests protected by it. The Supreme Court will have to decide the issue here, and if the industry, public and the legislators don't like the result, then the political process to change the law can be used.

 

[halfaman]

I had no idea who this artist is. So out of curiosity I asked AI to give me "highly detailed painting of Mount Fuji by Yayoi Kusama" and I was quite impressed by what I saw:

View attachment 313193

Is this derivative art? Is it art?

A "non-derivative" work express something totally different from the original work, so even it is based on previous art it can be considered "new" or "original". A "derivate" work retains SOME fundamental elements or artistic values of the original. Everything could be art. But a derivative work must recognize and gain the permission of the author to use the original, and non-derivative work must not.

It is very easy to understand that an instrumental musical piece inspired on a poem is "non-derivative" even the text could give some base to the composer. It is possible but I think also very difficult that an image based in another image does not express anything that what was already in the original.

 

[MattKing]

Only coffee cans? You really don't get away from your computer much, do you?

What do you not understand about a light touch of humor. You must have a glum life.

Continued argumentative bickering like this will bring heavy moderation.

 

[jtk]

I should also add that the court determines what laws mean separately from their constitutionality. If a law is vague, such as may be in copyright acts, they can rule the law unenforceable and send it back to the Congress to change it if they want. Otherwise, the law will die.

Of course, copyrights and patents are particularly interesting, as they are required by our constitution. But Congress defines its parameters such as the length a patent or copyright exists, transformative requirements, etc.

Courts have ruled that laws must be clear and not open to different interpretations. The public should not need a law degree to understand its rules. If they do not meet these standards, legislation will be declared null and void by the court. So if the court agrees that in this case it's transformative or not, will the next time be open to similar confusion? If so, the Supremes should throw out the legislation.

You seem to be a legal expert of some sort. Lawyer? I'm not a lawyer but I generally agree with your train of thought.

 

[jtk]

There is no such jurisdiction in the Courts - either yours or ours. If legislation is within the Constitutional authority of the legislature that enacted it, the Courts must interpret it as best as they can. They often complain about poor legislation, but can't "throw it out". They are pretty good though at finding ways to get around problems using the particulars of the case before them.

More central to the subject of the thread, the issue of "transformative" work is an example of how important the role of the courts can be. Andy Warhol's silk screen images use a process which is technologically similar, but different, from the process used to create the original image. Vanity Fair then used a different process to arrange and distribute the Andy Warhol work. The Courts have the ability to interpret the copyright legislation in light (pun intended) of the effects of time and technological change on the market for copyright, and the interests protected by it. The Supreme Court will have to decide the issue here, and if the industry, public and the legislators don't like the result, then the political process to change the law can be used.

Matt, are you a lawyer? I sho ain't I do have trouble with the use of "should" fwiw. I think the "conservative" ("origanalist" ) position is that laws and Constitution are self-evident and inflexible and that the alleged "liberal" position is that they can change with the times..."evolve." Warhol has seemingly rung some bells and encouraged reflection among artists.

 

[MattKing]

Matt, are you a lawyer?

I'm retired for several years now, after about a quarter century of practice in British Columbia, Canada.

 

[Alan Edward Klein]

There is no such jurisdiction in the Courts - either yours or ours. If legislation is within the Constitutional authority of the legislature that enacted it, the Courts must interpret it as best as they can. They often complain about poor legislation, but can't "throw it out". They are pretty good though at finding ways to get around problems using the particulars of the case before them.

More central to the subject of the thread, the issue of "transformative" work is an example of how important the role of the courts can be. Andy Warhol's silk screen images use a process which is technologically similar, but different, from the process used to create the original image. Vanity Fair then used a different process to arrange and distribute the Andy Warhol work. The Courts have the ability to interpret the copyright legislation in light (pun intended) of the effects of time and technological change on the market for copyright, and the interests protected by it. The Supreme Court will have to decide the issue here, and if the industry, public and the legislators don't like the result, then the political process to change the law can be used.

I don't know about great britain, but in America laws are thrown out if they're vague. There's a doctrine of vagueness. If it's not clear, it won't be allowed by the courts and the law will be considered null and void. See link.

Regarding copyrights, if Congress passed a law that makes it unclear when you're copying the copyright legally or not legally, then the courts could determine that Congress has to correct the legislation.

Now I don't know if that would happen in this particular situation, but it could. The last thing the courts want is to have to decide on every case if it's not clear. How is that fair to thre litigants? The courts don't want to be wasting their time judging every case as to whether or not it meets the rules of the legislation. It should be clear and distinct that an average person could understand what the law means.

Vagueness

Courts in the United States give particular scrutiny to vague laws relative to First Amendment issues because of their possible chilling effect on protected rights.

www.mtsu.edu

 

[Andrew O'Neill]

I had no idea who this artist is. So out of curiosity I asked AI to give me "highly detailed painting of Mount Fuji by Yayoi Kusama" and I was quite impressed by what I saw:

View attachment 313193

Is this derivative art? Is it art?

Her art is derived from dreams, and her wild imagination I believe she is still going strong at 93!

 

[DREW WILEY]

This has all been building up for awhile. The reason is the blurring of the line now that technology like Photoshop makes it just so darn easy to reconfigure prior work. The whole meaning and scope of a copyright needs to be re-thought and re-standardized, especially with respect to visual content. There has no doubt been a prior string of attempts to get the Supreme Court involved in sorting it out. But that's hard to do not only because the technology itself is constantly evolving, but due to the level of expertise needed to accurately assess and describe what is going on. But a lawsuit aimed at the Warhol Trust makes a lot of sense because so much money in potentially involved, and it constitutes a conspicuous test case.

The parallel issue, inevitably not far behind, is going to be the privacy issue, namely, to what extend a person's privacy can be pirated or exploited due to all the rabid proliferation of new digital applications sticking its nose in every aspect of our personal lives. Heck, anyone can even go on Google Earth and see what cars you park in your own driveway.

 

[Mike Lopez]

It worked for Ansel, how do you stack up to Ansel?

Quite favorably, but I'm not going to show you my work because it might get stolen. Come to my house if you want to see it.

 

[Sirius Glass]

Quite favorably, but I'm not going to show you my work because it might get stolen. Come to my house if you want to see it.

On that we both agree, but your location is not listed so I have no idea where you are. You could be next door or polar opposite.

 

[Alan Edward Klein]

This has all been building up for awhile. The reason is the blurring of the line now that technology like Photoshop makes it just so darn easy to reconfigure prior work. The whole meaning and scope of a copyright needs to be re-thought and re-standardized, especially with respect to visual content. There has no doubt been a prior string of attempts to get the Supreme Court involved in sorting it out. But that's hard to do not only because the technology itself is constantly evolving, but due to the level of expertise needed to accurately assess and describe what is going on. But a lawsuit aimed at the Warhol Trust makes a lot of sense because so much money in potentially involved, and it constitutes a conspicuous test case.

The parallel issue, inevitably not far behind, is going to be the privacy issue, namely, to what extend a person's privacy can be pirated or exploited due to all the rabid proliferation of new digital applications sticking its nose in every aspect of our personal lives. Heck, anyone can even go on Google Earth and see what cars you park in your own driveway.

The Supreme court can't sort it out. They don't write the laws or legislate. It's Congress representing the people that have to clearly define the limits and where violations of copyright begin and end. They write the statutes, not the courts.

If the statutes are not clear, then people will be afraid to transform existing work to try new things from it, something that Congress apparently wants. So free speech will be impinged as people fear getting sued not knowing how far they can go. If Congress makes it clear, then artists will be able to expand copyrighted photos without hurting the originator of the copyright or worrying about getting sued. Both sides will know where they stand.

 

[MattKing]

I don't know about great britain, but in America laws are thrown out if they're vague. There's a doctrine of vagueness. If it's not clear, it won't be allowed by the courts and the law will be considered null and void. See link.

I'm not in Great Britain, and our law is not the law of Great Britain. Just as in the US, when Canada was created we adopted the law of England but our law has evolved on its own in the 150+ years since.
In fact, the English law that Canada brought into our law was about 90 years more advanced than the version of English law that the US incorporated into its law, due to the relative ages of our two countries.

The link you site is entirely inapplicable, because it deals with Criminal law. Laws that impose a criminal standard are much, much, much more strictly construed, and where there is uncertainty, always construed in favour of the accused.

It is very important not to confuse the principles applied to Criminal law issues with the far more extensive and pervasive law concerning all the non Criminal law. Criminal law is a very small and narrow subset of the law which only involves issues between private individuals and the government/Crown in its historic role as the protector of the public peace.

In contrast, the government is rarely a party to a copyright law dispute, save and except the relatively rare situation where it happens to own or claim a private interest in a copyright, or has been involved in a breach of someone's copyright interests.

When it comes to disputes before them, Courts decide things. That is their role.
Some times they have to decide things based on principles, because one part of a statute implies one thing, while another implies something else, and, due to the peculiarities of the facts before them, no part of the statute is entirely and exactly on point. Courts aren't allowed to just throw up their hands and say to the litigants before them: "we can't figure it out - work it out between themselves".

 

[DREW WILEY]

Do you know what goes on before any case, Alan? The contestants spend months studying the proclivities of the respective justices and their personal philosophies and opinions, just like criminal lawyers and prosecutors deeply research potential juror pools before any important trial. And even one change on the SCOTUS bench can obviously upend prior precedent. They aren't entirely objective at all, never have been. Appellate law firms devote entire departments to this kind of thing. It's a big deal. The court determines the constitutionality of any stance, but often with conflicting opinions. How often does Congress clearly define anything? How often is any law free from ambiguity? If that were the case, there wouldn't be so many lawyers on the planet. Heck, lots of tax experts can even understand some of the official tax code. Nothing is really that cut and dried, especially nowadays.

I don't want to get into an ideological argument over it. The point I was making was, how do you pre-legislate for the implications of technology which is moving ahead way faster than either legislative bodies or courts can keep up? Even the boundary between tangible art and vacuous cyber nonsense is getting blurred. And anywhere money is involved, so will be litigation. And now there are forms of monetary exchange floating around unseen in cyberspace too. Maybe in awhile the only safe unit of exchange will be going back to bartering eggs and chickens for the hatchets necessary to decapitate them.

 

[MattKing]

The Supreme court can't sort it out. They don't write the laws or legislate. It's Congress representing the people that have to clearly define the limits and where violations of copyright begin and end. They write the statutes, not the courts.

If the statutes are not clear, then people will be afraid to transform existing work to try new things from it, something that Congress apparently wants. So free speech will be impinged as people fear getting sued not knowing how far they can go. If Congress makes it clear, then artists will be able to expand copyrighted photos without hurting the originator of the copyright or worrying about getting sued. Both sides will know where they stand.

If you go to Court on a non-criminal matter, you will have the task of convincing the Court as to how the statues and common law apply to your situation. Any uncertainty that may be there will be the subject of the evidence the parties put before the Court and the arguments made to the Court, including references to the decisions of earlier Courts on similar facts. The Court will take all of that and render a decision as to how the words of the statutes and precedents apply to the facts at hand - no matter how uncertain or vague those words might be.
The Courts will not refuse to come to a decision based on any such uncertainty. If the result that they come to is inappropriate, the parties and others can seek a legislative remedy.
As legal counsel, I've done all that, and obtained those sorts of results. And it is not unusual to have a Judge or Justice complain about the lack of clarity of wording of legislation before coming down with the decision they make.

 

[Sirius Glass]

I'm not in Great Britain, and our law is not the law of Great Britain. Just as in the US, when Canada was created we adopted the law of England but our law has evolved on its own in the 150+ years since.
In fact, the English law that Canada brought into our law was about 90 years more advanced than the version of English law that the US incorporated into its law, due to the relative ages of our two countries.

The link you site is entirely inapplicable, because it deals with Criminal law. Laws that impose a criminal standard are much, much, much more strictly construed, and where there is uncertainty, always construed in favour of the accused.

It is very important not to confuse the principles applied to Criminal law issues with the far more extensive and pervasive law concerning all the non Criminal law. Criminal law is a very small and narrow subset of the law which only involves issues between private individuals and the government/Crown in its historic role as the protector of the public peace.

In contrast, the government is rarely a party to a copyright law dispute, save and except the relatively rare situation where it happens to own or claim a private interest in a copyright, or has been involved in a breach of someone's copyright interests.

When it comes to disputes before them, Courts decide things. That is their role.
Some times they have to decide things based on principles, because one part of a statute implies one thing, while another implies something else, and, due to the peculiarities of the facts before them, no part of the statute is entirely and exactly on point. Courts aren't allowed to just throw up their hands and say to the litigants before them: "we can't figure it out - work it out between themselves".

Well they can throw their arms up if they refuse to have four members to take it.

 

[VinceInMT]

Whether Warhol violated any copyright laws really has little to do with the art he created and the impact he had on the pop art movement. He produced more than the famous silk screens and if you find yourself in Pittsburgh, PA, go to his museum as it is worth the effort. I am especially fond of his early drawings.

 

[warden]

... go to his museum as it is worth the effort. I am especially fond of his early drawings.

Those drawings and much of his early works are fantastic. I agree that a visit to the museum is time well spent, especially if your exposure to his work is mostly soup cans and screen prints.

 

[Alan Edward Klein]

I'm not in Great Britain, and our law is not the law of Great Britain. Just as in the US, when Canada was created we adopted the law of England but our law has evolved on its own in the 150+ years since.
In fact, the English law that Canada brought into our law was about 90 years more advanced than the version of English law that the US incorporated into its law, due to the relative ages of our two countries.

The link you site is entirely inapplicable, because it deals with Criminal law. Laws that impose a criminal standard are much, much, much more strictly construed, and where there is uncertainty, always construed in favour of the accused.

It is very important not to confuse the principles applied to Criminal law issues with the far more extensive and pervasive law concerning all the non Criminal law. Criminal law is a very small and narrow subset of the law which only involves issues between private individuals and the government/Crown in its historic role as the protector of the public peace.

In contrast, the government is rarely a party to a copyright law dispute, save and except the relatively rare situation where it happens to own or claim a private interest in a copyright, or has been involved in a breach of someone's copyright interests.

When it comes to disputes before them, Courts decide things. That is their role.
Some times they have to decide things based on principles, because one part of a statute implies one thing, while another implies something else, and, due to the peculiarities of the facts before them, no part of the statute is entirely and exactly on point. Courts aren't allowed to just throw up their hands and say to the litigants before them: "we can't figure it out - work it out between themselves".

Sorry about Canada vs GB. Interestingly, when it comes to Patent Law, it appeared before other freedoms and rights so important did the founders consider it. Even slaves and women were protected regarding their intellectual property long before they gained any important other legal protection such as being a free person in the case of a slave about 70 years later or the right to vote in the case of women which didn't occur until the 20th century. See linked article.

In any case, the Supreme Court could decide the Warhol case based on their understanding of the terms. But if they don't clearly spell these out, these cases will keep appearing. Congress should clearly define these things out in legislation. We shouldn't be relying on judges. The Warhol case and these other aspects are also in the article/opinion.

The Supreme Court is Set to Hear a Copyright Case with Big Implications for U.S. Tech Innovation

The U.S. Supreme Court (SCOTUS) is set to hear Andy Warhol v. Lynn Goldsmith in October. It will be the latest in a series of cases the Court has taken on over the last decade-plus that promise to change U.S. innovation as we know it.

www.ipwatchdog.com