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Author Topic: What is Transformative vs What is not? Warhol recent decision  (Read 515 times)

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Uncle Pete

  • Great Place by a Great Lake - My Home Port
« on: June 15, 2022, 10:06 »
0
https://www.ipwatchdog.com/2021/12/12/warhol-foundation-tells-scotus-second-circuits-fair-use-ruling-threatens-sea-change-copyright-law/id=141022/#

This creates questions about fair use and the latest ruling is the opposite. The Second Circuits ruling creates a conflict with the Ninth Circuit. What is Transformative? What is allowed as fair use.

I wanted to quote one of the definitions that is interesting:  the ability of [other] authors, artists, and the rest of us to express them- or ourselves by reference to the works of others.

I don't see copying and coloring as a reference image as fair use?

Just a note since we've seen this on some sites, Marilyn Monroe was domiciled in New York when she died, and therefore, no such posthumous right of publicity existed under NY law that could have been transferred to her heirs.

However the right of the photographer or other artists are in full force, so MMs images, created by others, are NOT public domain. But anyone can create a new image of MM without worrying about the right to publicity or personal likeness. Then back to about... what would make a new image, fair use and transformative if someone uses an existing image as a "reference".




« Reply #1 on: June 15, 2022, 10:38 »
+2
Seems like the Second Circuit's decision is a win for photographers.

Just taking a photograph and adding color and minor line changes may have seemed "transformative" back in the 1980's but with digital software these days anyone could do the same so easily and if that's still considered "transformative" photographers are really out of luck. I wonder if the decision would have been different if the case was brought 40 years ago. I hope SCOTUS refuses to take it, though give the conflict with the 9th Circuit I assume they'll grant cert, so hopefully they'll uphold the Second Circuit decision.

I wonder if they determined that the additional images went beyond the license granted?

Interesting case.

Uncle Pete

  • Great Place by a Great Lake - My Home Port
« Reply #2 on: June 17, 2022, 10:19 »
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Seems like the Second Circuit's decision is a win for photographers.

Just taking a photograph and adding color and minor line changes may have seemed "transformative" back in the 1980's but with digital software these days anyone could do the same so easily and if that's still considered "transformative" photographers are really out of luck. I wonder if the decision would have been different if the case was brought 40 years ago. I hope SCOTUS refuses to take it, though give the conflict with the 9th Circuit I assume they'll grant cert, so hopefully they'll uphold the Second Circuit decision.

I wonder if they determined that the additional images went beyond the license granted?

Interesting case.

Yes if anyone reads the entire article, Warhol did license the image of Prince. Yes, one court says yes and one says no. So where you file the case, may change the precedent. I'm no fan of appropriation art or sampling of music, which is about the same thing.

When Prince (a different Prince) stole the Marlboro Man images and made millions, there wasn't much news. Then the original photographer heard about it. "A district court found Prince guilty in 2011, but an appeals court overturned the verdict in 2013. More recently, Prince took material from Instagram, and fine art photographer Donald Graham sued him; the case is pending."

There are other situations where, aside from photo copyrights, different courts have made opposing decisions. While we assume that something ruled on in NY will apply in California, that's not always true. Each works on precedence in their district.

That's why this needs to get to the Supreme Court and maybe some laws would help, to codify our rights for our works? Fair use isn't just a big loophole, it's not understood and as someone once said (and he wasn't being facetious) Everything on the Internet is free and anyone can use it. People believe that!
 

« Reply #3 on: June 17, 2022, 16:09 »
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Wordplanets point is well taken. At first glance, the image would be fairly easy to make in Photoshop today, but in 1981, I dont have the faintest idea how it could have been done. What may have been transformative then I dont think should be looked at the same way now.
All that said, Im very skeptical of a court case decades after the work was made and nearly as long since Warhol himself died.

Uncle Pete

  • Great Place by a Great Lake - My Home Port
« Reply #4 on: June 19, 2022, 14:45 »
0
Wordplanets point is well taken. At first glance, the image would be fairly easy to make in Photoshop today, but in 1981, I dont have the faintest idea how it could have been done. What may have been transformative then I dont think should be looked at the same way now.
All that said, Im very skeptical of a court case decades after the work was made and nearly as long since Warhol himself died.

Overhead projector and trace?

Warhol did screen printing from photos, which was easily done back then. You create a master screen and the ink it, press with a squeegee and there's an inked image. Think like T-Shirt printing. What he could do (for example) would be take a photo and make it into a set of screens. Then print the background, print the edges, let it dry, print the hair another color, print some other elements. Finally over print the face. Which would make every print, individual and unique.

Or in some of the series, he used the same screens to make variations and created sets of four, for example, arranged on a page, and had those printed.

But the original screen prints are what is more desirable than the replicas which are offset or lithographs.

I don't know if the original photographer is just chasing or what, but true it seems a little late. The case reads that the original license was to a magazine, not Warhol and the photographer didn't know that Warhol made a work using the original. Then after discovery, is when the case was filed. Seems terribly late and distant but that's the way the law works?

Seems there would be a statute of limitation. But no, there's a foundation and the copyright is still in force, so the original photographers work is protected and the suit is not against Andy Warhol it's against the foundation and the use.

« Last Edit: June 19, 2022, 14:49 by Uncle Pete »


 

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