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

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eli griggs

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Judges need and must have the discipline to no including social considerations, in their rulings, as that is the job of elected representatives in Congress, and in the State Houses, whom are supposed to use their offices to order our Laws of Our Society and segments therein.

Our Republic is dependant on the Peoples of America to decide if a representative will or has best mirrored their demands for good Government or no.

If no, we change them when the next election rolls around, if yes, the get to continue to draw their pay.

I find the Laws on Copyrights on art and the permissable, sampling, to be clear and straight forward and, as I stated in an earlier post, protective of the Rights of the Company that contracted the graphic product of the artist they paid.
 
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It's Art, however, whether or no it's derivative art, depends on if the inspiration came from other artists art.

Yayoi Kusama did create artworks with Mount Fuji as the subject: 1, 2, 3 but what I shared in my earlier post was not created by her. Those were produced by Artificial Intelligence in Yayoi Kusama's style. And hence my questions. :smile:
 
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eli griggs

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Yayoi Kusama did create artworks with Mount Fuji as the subject: 1, 2, 3 but what I shared in my earlier post was not created by her. Those were produced by Artificial Intelligence in Yayoi Kusama's style. And hence my questions. :smile:

It's still simply a matter of if the AI was ever exposed to that data/art.

Data in, even in AI, results in the 'sampling' of already acquired knowledge upon which choices are made, UNLESS, the AI can be reliably instructed to lock away any and all consideration of what it knows and honestly does so.


Remember, AI, like Humans, is entirely capable and assuredly better at lying to anyone/thing.

IMO.



.
 

Rrrgcy

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Yayoi Kusama did create artworks with Mount Fuji as the subject: 1, 2, 3 but what I shared in my earlier post was not created by her. Those were produced by Artificial Intelligence in Yayoi Kusama's style. And hence my questions. :smile:

It’s interesting in the U.S. you don’t hold a copyright to your new Mt. Fuji creations since the AI ‘hand’ was so involved. “Bah, humans!” so says Robot.

The copyright cases involving Richard Prince works (i e., Rasta w guitar, https://www.newyorker.com/business/currency/who-owns-this-image)(and developments since) fascinate; their legal evolution indicate how wildly contradicting and inexplicably judges might interpret what it means to be sufficiently “transformative.” Lastly, unfortunately, analogies for copyright between sampling music vs. sampling image are (legally) not quite applicable.

I was witness in a somewhat similar manner w a wonderful person who in the enviro business had done a fair share of travel and amateur capture of images of people and places in undeveloped countries (which were imminently changing into the ‘modern’). Several of the most striking B&W images, shared w a friend in an art project, were later taken and (mis-)used by this ‘friend‘ after their relationship dissolved. They appeared w/out the photographer’s authority to great shock exhibited for sale in a known gallery in a major city - the images now were supra enlarged with added coloration much like Prince’s Rasta Man but without the addition of any other element (such as the guitar). The friend defended his misuse as ’transformative‘ The photographer had little resource to stop it and merely privately complained to detriment. I’d be really angry, too. Many cases are different but I find all IP conflict interesting and can’t wait for what the Court will decide on the Warhol matter.
 
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I went back to this thread, and looked online to see if there has been a definitive ruling on this. Two things I learned:

1- I need to learn how to spell derivative, but maybe my misspelling is a derivative way of spelling it:>}

2- The US Court of Appeals for the Second Circuit had originally ruled that Warhol's work did not demonstrate fair use of Lynn Goldsmith's photograph. OK, fine, but I still can't find out if this has been reversed or ruled on after that decision. Looking at his work (in the first link below) demonstrates to me that it is definitely a "Warhol'. It bears all the signs of the artists techniques and individual style, and is surely different in scale.

Working from photographs is an old time tested technique, but if someone just makes a bigger or smaller copy w/ no fundamental changes then it is plagiarism. I think musicians deal w/ this all the time, much more that artists/photographers. The trouble is that the courts are not consistent. The artist Jeff Koons has been in hot water over and over on this issue, and sometimes the courts rule one way, sometimes another. Mostly the rulings say that he is what he is...... someone who uses other's works in ways that do not fundamentally change them from their source material.

Maybe I can buy a poster for cheap. Apparently that's OK, just take a look at the second link below. Oh hell, I'll just use my phone and take a snap of the image on my monitor, have it enlarged, frame it and hang that on the wall. Or use Warhol's work as a basis to make an "original" piece in my style. A large pastel in different colors, and in a different style, that is based on a photograph of a web image of Warhol's silkscreen, which was based on a photograph that someone else made. I better consult an army of attorneys first.



 
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Chuck_P

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Imo, Warhol's painting is not transformative at all. The colors versus black and white just adds color...is that supposed to be transformative?
 

AnselMortensen

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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. 😇

Thanks for the plug. 😜🤣
 

warden

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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.

I agree with your last sentence there, and find the Warhol work sufficiently transformative compared to the photograph. But it's anyone's guess what this court will decide.

I was at the Philadelphia Museum of Art today to spend some time with Cy Twombly, and you walk right past some legal fodder to get to it:

IMG_0986.jpg

IMG_0987.jpg

It makes me wonder what artists will be lining up to sue other artists after this case is complete.
 

warden

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I haven't gotten to the majority opinion but here are a few snips from Kagan, in her dissent:

His work—whether Soup Cans and Brillo Boxes or Marilyn and Prince—turned something not his into something all his own. Except that it also became all of ours, because his work today occupies a significant place not only in our museums but in our wider artistic culture. And if the majority somehow cannot see it—well, that’s what evidentiary records are for. ...
Did his “new work” “add something new, with a further purpose or different character”? Campbell, 510 U. S., at 579. Did it “alter the first with new expression, meaning, or message”? Ibid. It did, and it did. In failing to give Warhol credit for that transformation, the majority distorts ultimate resolution of the fair-use question. ...
Of course, that is all well and good if an artist wants merely to copy the original and market it as his own. Preventing those uses—and thus incentivizing the creation of original works—is what copyrights are for. But when the artist wants to make a transformative use, a different issue is presented. By now, the reason why should be obvious. “Inhibit[ing] subsequent writers” and artists from “improv[ing] upon prior works”— as the majority does today—will “frustrate the very ends sought to be attained” by copyright law. Harper & Row, 471 U. S., at 549. It will stifle creativity of every sort. It will impede new art and music and literature. It will thwart the expression of new ideas and the attainment of new knowledge. It will make our world poorer.
 
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Don_ih

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I guess the world will see what the full implications of this are. It was a hell of an image to pick, since it really is not transformative - it's really just a way of printing that photo. The images have no significance greater or less than the photo did - and they were done under contract for a definite commercial purpose. So, how could the court not side with the photographer?

If you commission someone to take one of your b&w photos and make a, say, colour gum print of it, you wouldn't expect that person to claim ownership of the licensing of that image just because they made the print and chose the colours.
 

Sirius Glass

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It is a 7 to 2 opinion that is very narrow making it hard to predict how future similar cases would go.
 
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warden

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I guess the world will see what the full implications of this are. It was a hell of an image to pick, since it really is not transformative - it's really just a way of printing that photo. The images have no significance greater or less than the photo did - and they were done under contract for a definite commercial purpose. So, how could the court not side with the photographer?

I think the full implications you mention will be a lot of fresh lawsuits. Educated people, including Supreme Court justices, can disagree on the transformative/non-transformative issue. I think it was transformative btw, and I’m a bloody genius.

;-)
 

RalphLambrecht

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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.


of course it's obviously Warhol's work.The original photographer sold his rights!
 

Don_ih

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The original photographer sold his rights

No. The original photographer licensed the image for the use of the magazine issue publication, which included a Warhol colourization. There was no understanding that the photographer was selling the rights to the image permanently.

I think it was transformative btw

I'd like to know what you find transformative about the Prince Warhol prints. They seem more-or-less slapped out, from my point of view - maybe even done completely by an employee (of which Warhol had numerous who did his silkscreens). The photo itself is pretty lame, in my opinion, and the silkscreens don't show much in the way of inspiration.

It's difficult to say anything definitively about the Warhol products because, just by association with other Warhol products, they gain an amount of credibility (or total lack thereof, depending who you ask). The Warhol Marilyn silkscreens and the Elvis silkscreens have more weight than these Prince ones, simply because of just how enormous those people were in the broader culture (way, way bigger than Prince). A more iconic photo of Prince may have actually been transformative - but this photo is pretty bland milquetoast.
 

warden

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I'd like to know what you find transformative about the Prince Warhol prints.
Everything that happened after he began with the source material photograph.

I still haven't read the majority opinion but I look forward to doing that. For now I found a good deal to agree with in Kagan's dissent.
 

eli griggs

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No. The original photographer licensed the image for the use of the magazine issue publication, which included a Warhol colourization. There was no understanding that the photographer was selling the rights to the image permanently.



I'd like to know what you find transformative about the Prince Warhol prints. They seem more-or-less slapped out, from my point of view - maybe even done completely by an employee (of which Warhol had numerous who did his silkscreens). The photo itself is pretty lame, in my opinion, and the silkscreens don't show much in the way of inspiration.

It's difficult to say anything definitively about the Warhol photographs because, just by association with other Warhol products, they gain an amount of credibility (or total lack thereof, depending who you ask). The Warhol Marilyn silkscreens and the Elvis silkscreens have more weight than these Prince ones, simply because of just how enormous those people were in the broader culture (way, way bigger than Prince). A more iconic photo of Prince may have actually been transformative - but this photo is pretty bland milquetoast.

You miss the point of, Warhol.

His work is overblown, even mundane to many, but it is transformative, in that it reflected a great social change, in that it appealed to a huge number of people, who had seen "traditional 'art'" and more recently, abstraction, minimalism, surrealism, conceptual, etc, movements, as over serious, too intellectual, even only credible to fine art "experts", who, like the National academies, took it on to be "final word" on what was 'worthy' and 'acceptable' in "art", a very narrow window subjected to stale, tired limitations, too often judged by jealous artists, whom tolerated very little change to the S.O.P
they had come up from and now enforced by their limited vision.

No longer was the art world centered in Europa, but America, vibrant, powerful, a still growing concern, populated by people, finding their own voices, particularly the young, creative people whom wanted "different" and "more" than what went before.

POP Art appealed to many folks and, Warhol, offered up blown up images, coloured in unrealistic hues, of popular icons, often still living, popular I. the public eye, fun and self-mockingly, a sly wink from the artist that envisioned them.

Those photographs can no be judged, then or now, on the merits of realistic photography, because they were, intentionally, never intended to be a serious photographic depiction of life as it is, but rather, a fun, tongue and cheek interpretation of art for the "cool, hip, population" youth whom wanted their own tailored sarcasm and ideas of art, of their own.

This is my interpretation of Warhol, who, ironically, wanted to be acknowledged as an artist of serious repute, as cool and hip as the people who vied to be seen at his socal events, where he ruled supreme.

As far as having others bringing his conceptual arts to fruition, no one today really kicks up a fuss that many, many "classic" Old Masters had studios of other artists making major contributions to their most famous finished art, which bore only their name.

Warhol, was the singular nexis of the 'begining' and the 'end' of his art, and what came in-between, a curious footnote that many do no see at all.

IMO
 
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Don_ih

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You miss the point of, Warhol.

No, I don't. What you went on to say was fine about certain things that he did. But these Prince "prints" are on the level of the 4- or 6-square silkscreens he made on commission - basic plain printing. So, you are correct in your general statements about Warhol and his significance and the significance of many of his works. But the Prince prints are just prints.

Ever hear the expression "He dialed it in"? It's appropriate here.
Everything that happened after he began with the source material photograph [was transformative].

I don't think painting a room or even putting up wallpaper can be called "transformative" and I don't see what the difference is with what Warhol did with this photo. He made prints. "Everything that happened after he began" could just as easily have been done with a photocopier and a handful of highlighters. (that is an exaggeration. But there's no guarantee that Warhol himself was even the person who made the Prince prints.)

Is this transformative?

1684525431443.png
 

MattKing

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Thread title updated
 

warden

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No, I don't. What you went on to say was fine about certain things that he did. But these Prince "prints" are on the level of the 4- or 6-square silkscreens he made on commission - basic plain printing. So, you are correct in your general statements about Warhol and his significance and the significance of many of his works. But the Prince prints are just prints.

Ever hear the expression "He dialed it in"? It's appropriate here.


I don't think painting a room or even putting up wallpaper can be called "transformative" and I don't see what the difference is with what Warhol did with this photo. He made prints. "Everything that happened after he began" could just as easily have been done with a photocopier and a handful of highlighters. (that is an exaggeration. But there's no guarantee that Warhol himself was even the person who made the Prince prints.)

Is this transformative?

View attachment 339179
I’m not going to relitigate this case with you, sorry. I’m not trying to convince you or anyone to change your minds about what you think is transformative or non-transformative.
 

Don_ih

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I’m not trying to convince you or anyone to change your minds about what you think is transformative or non-transformative.

I was asking you what you think is transformative about this particular set of prints. If you don't want to discuss things, fine. But this is a forum...
 

CMoore

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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.
Does anybody know..........

When somebody "samples" a song, do they credit the original song writer.?
If they do, is that any different than "covering" a song.?

If The Rolling Stones cover "Aint Too Proud To Beg" on one of their records, they credit the song to The Temptations.

If a band "samples" Sympathy For The Devil and credit it to Jagger/Richards, is that different..?
 

MattKing

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Does anybody know..........

When somebody "samples" a song, do they credit the original song writer.?
If they do, is that any different than "covering" a song.?

If The Rolling Stones cover "Aint Too Proud To Beg" on one of their records, they credit the song to The Temptations.

If a band "samples" Sympathy For The Devil and credit it to Jagger/Richards, is that different..?

It is complex.
But those who publish music that contains samples need to license the use of those samples - i.e. pay money!
 

CMoore

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It is complex.
But those who publish music that contains samples need to license the use of those samples - i.e. pay money!

Money, laws, interpretations....... i suppose there are less complex topics :smile:
 

guangong

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Years ago, not having air conditioning in our apartment , my daughter and I went to Museum of Modern Art on hot summer days. Adjacent to the museum’s sculpture garden was a reasonably priced cafeteria ( as had the Metropolitan Art Museum...but these are long gone). I was under the misconception that the Campbell soup banners hanging in cafeteria were provided by the soup company and was unaware that they were transformative, whatever that means.
On our way to MOMA in morning, my daughter would converse for a few minutes with Moondog.
 

Rrrgcy

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For what the Warhol copy was ultimately later used for, commercially, over which I’m sure Lynn Goldsmith wasn’t happy about (especially considering her original one-time use license for illustration purposes), and irrespective of ‘some‘ transformation, the court said:

“In sum, if an original work and secondary use share the same or highly similar purposes, and the secondary use is commercial, the first fair use factor is likely to weigh against fair use, absent some other justification for copying.”

Seems the essence of the ruling. Your feet in her shoes and all that.
 
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