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

[Sirius Glass]

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.

Which means … ?

 

[Don_ih]

Which means … ?

um...

In sum, if an original work (photo) and secondary use (Warhol Prints) share the same or highly similar purposes (Identifiable Portraits of Prince), and the secondary use is commercial (Published in a magazine or sold as prints), the first fair use factor (The determination of the purpose and character of the secondary use) is likely to weigh against fair use (i.e., the secondary use must credit/pay the original work), absent some other justification for copying (likely such as reproduction for educational purposes?)

 

[Rrrgcy]

My opinion, If I have a photo of my dog and license it to you for one-time-use as an illustration for your SeriousSiruisGlass magazine, and you do so (having contracted MattKing to colorize it a little and paid him)(who also made several variants to keep in-house or whatever) and years later you try to use one of those (colorized by Mattaking) for your magazine then the law says No to you and to MattKing given the commercial aspect of use, given the one time license and given the lack of sufficient transformation.

That second time around was another bite at the commercial Apple. No Bueno.

At first it seemed to me merely an issue of contract law but then no, LG wanted to kill the commerciality of all those AW prints as an offense to the copyright, if I get it right.

Commerciality seems to be the Jupiter to those smaller satellites. Maybe it’s a fairly narrow ruling and reinforces what was the prevailing balance between those aspects, I don’t know; but if the supreme court took it up, it may have chosen so to make an impact in this area of law. Cases seem to always sway between those fair use aspects with differing interpretations and perspectives as to each and their fuzzy importance one over the other. It’s a challenging area of law to suss.

re Shoes, I’d likely feel the same way and not want my intellectual property (or a slight variation of it) re-used commercially.

I didn’t read the whole thing btw and I’m not an attorney but it’s what I came away with burning through parts of it.

 

[Sirius Glass]

um...

In sum, if an original work (photo) and secondary use (Warhol Prints) share the same or highly similar purposes (Identifiable Portraits of Prince), and the secondary use is commercial (Published in a magazine or sold as prints), the first fair use factor (The determination of the purpose and character of the secondary use) is likely to weigh against fair use (i.e., the secondary use must credit/pay the original work), absent some other justification for copying (likely such as reproduction for educational purposes?)

That is what I though, but rather than assume that I asked. Thank you. So if Warhol was still alive, he or whatever group "owns" his work, money must be paid to owner of the photograph.

 

[Rrrgcy]

That is what I though, but rather than assume that I asked. Thank you. So if Warhol was still alive, he or whatever group "owns" his work, money must be paid to owner of the photograph.

I think the commercial reuse by the AW Foundation of a variation of the originally licensed image (the copyright) needs to be authorized by the copyright holder. In its essence, contention was over whether the AW variation was a new creation which lies outside the original copyright and so could be used by AWF commercially. Court said uh No considering the use originally (commercially hired to make a variation for illustration purposes for the magazine) and the offending (commercial) use secondly.

if we could get leading art law scholar NYU law professor Amy Adler on the line, she’d explain it succinctly!!!

 

[Sirius Glass]

I think the commercial reuse by the AW Foundation of a variation of the originally licensed image (the copyright) needs to be authorized by the copyright holder. In its essence, contention was over whether the AW variation was a new creation which lies outside the original copyright and so could be used by AWF commercially. Court said uh No considering the use originally (commercially hired to make a variation for illustration purposes for the magazine) and the offending (commercial) use secondly.

 

[MattKing]

My opinion, If I have a photo of my dog and license it to you for one-time-use as an illustration for your SeriousSiruisGlass magazine, and you do so (having contracted MattKing to colorize it a little and paid him)(who also made several variants to keep in-house or whatever) and years later you try to use one of those (colorized by Mattaking) for your magazine then the law says No to you and to MattKing given the commercial aspect of use, given the one time license and given the lack of sufficient transformation.

Heh - why do you want me to colourize it - I'm lousy at that!