from the if-you-like-to-tell-me-"maybe"-just-go-ahead-now dept.
The Court wrestled with who gets to decide the meaning of art:
In 1981 the photographer Lynn Goldsmith took a portrait of Prince. He sits alone on a white background, wearing a blank expression with a glint of light in his eyes. In 1984 Andy Warhol used that photo to create art. Warhol altered the image, adjusting the angle of Prince's face, layering on swaths of color, darkening the edges, and adding hand-drawn outlines and other details in a series of 16 silkscreen prints.
40 years later, the artwork is at the center of a Supreme Court case that could change the course of American art, copyright law, and even the state of the internet. The question is whether Warhol's work was fair use, or if he violated Goldsmith's copyright. In oral arguments on Wednesday, the Court wrestled with the finer points of the issue, and to put it mildly, it's pretty complicated.
Did Warhol create an entirely new work of art, or was it just a derivative reinterpretation of Goldsmith's photo? If the art is found to be derivative, the Warhol Foundation will owe Goldsmith millions in fees, royalties, and perhaps additional damages. But the implications of the Supreme Court's impending decision are a much bigger deal than a few million dollars.
[...] You don't have to pay the original artist if it's fair use, which is determined based on four factors: the purpose you're using it for, the nature of the art, how substantially you used the original work, and how your new art affects the market for the original. The lawyers, in this case, focused on the first and fourth factors, purpose and the market.
[...] But the Court's decision will have serious implications. A broad ruling in favor of the Warhol Foundation could theoretically make it easier to steal or make liberal use of artists' work. [...]
On the other hand, a narrow ruling in favor of Goldsmith could have huge repercussions for the art world. The estates of pop art icons Robert Rauschenberg and Roy Lichtenstein joined the Brooklyn Museum in an amicus brief, telling the court upholding the 2nd Circuit's decision, would "impose a deep chill on artistic progress, as creative appropriation of existing images has been a staple of artistic development for centuries."
(Score: 2, Troll) by Rosco P. Coltrane on Monday October 17 2022, @11:28AM (4 children)
But it sure was shit use, like most of what Warhol did.
(Score: 2, Funny) by Anonymous Coward on Monday October 17 2022, @12:38PM
Pop art. Just flush after discarding.
(Score: 2) by epitaxial on Monday October 17 2022, @11:30PM (1 child)
Historians, art critics, and the market would beg to differ.
(Score: 2) by Rosco P. Coltrane on Tuesday October 18 2022, @11:58AM
Art critics are a clique of pedants outdoing one another to appear avant-garde to keep their jobs.
The art market is a tax avoidance scam.
Historians describe the past as it happened - including how famous an "artist" was whose main purpose was precisely to make himself famous, and the opinions of the aforementioned sycophants and scam artists gravitating around him to grab a piece of the action.
So, tell me exactly how any of the above people prove that Warhol didn't produce shit?
(Score: 3, Interesting) by Thexalon on Tuesday October 18 2022, @02:29AM
I'm not a fan of Warhol. And it's not because I don't like modern art: There's some really cool fairly recent stuff in my nearest art museum that's wonderfully mind-bending (example [clevelandart.org]). He always struck me as someone who was better at playing the role of "famous artist" than he was at actually making art: The guy filmed somebody sleeping for a few hours and the high art world carefully twisted itself into knots explaining why that was high art with something important to say about the human condition.
And you compare that to someone much more impactful that your average person has never heard of, like Viktor Schrekengost, and you get a sense of how overrated Warhol really was. I'm not saying he necessarily deserved to be shot, but I can understand the urge.
The only thing that stops a bad guy with a compiler is a good guy with a compiler.
(Score: 4, Interesting) by Anonymous Coward on Monday October 17 2022, @11:39AM
If it was my decision, I'd base it almost completely on "how substantially you used the original work".
For derivative technical art, often used in engineering reference books and scientific papers I was told by our publisher:
+ At one end is using the original idea but completely re-drawing the art. This is what we did for our 900 page niche engineering reference book (1996), the 400+ figures were all drawn on a Mac (from our sketches) or re-drawn by our contracted artist from previous work, making it all "new work". While it may not be strictly necessary, we chose to add the line, "Based on Figure xx from Ref yy" whenever we started with previous work.
+ At the other extreme is a straight scan of the original, perhaps when printed it looks a little different than the original due to pixelation or other distortion. This is not allowed by copyright. Recently, a new book in our same niche came out, published by giant Springer...and one of our figures is included as a direct scan, with a few bits of text removed and some different text added.
Our smaller publisher was amazed that Springer would make a mistake like that (they are meant to get a statement from authors for the source of all art)...and Springer have since corrected their eBook version, and will also change the print version in the next printing. Unfortunately for me and our smaller publisher, I don't think there is going to be any settlement (money) coming our way, Springer is a 900# gorilla that usually gets what it wants!
I'm not sure how the middle ground is treated, I'm guessing there are some court cases that apply?
(Score: 3, Insightful) by sigterm on Monday October 17 2022, @12:17PM (6 children)
OK, then:
The purpose: To create a new piece of art.
The nature: Literally altering the original work significantly to provide an entirely different perspective (figuratively and, in this case, literally).
Substantial use: Basically the entire work was used, and then altered.
Effect on the market: No-one who wants to use or own a real photograph of Prince will look at the Warhol piece and say, 'you know, I think I'll use that instead.'
Given that there's been quite a few cases where someone has used an entire piece of work, was sued by the original creator, and the use of the work was then deemed sufficiently "transformative" by the court, I'd be very surprised if the court sides with Goldsmith. It would make the entire Fair Use provision essentially null and void.
(Score: 5, Insightful) by c0lo on Monday October 17 2022, @12:50PM (1 child)
FTFY
I sorta fail to see the literal change in the perspective.
(oh, the irony. It's like "silvery", but with iron instead)
TFA
Rrright, that Vanity Fair nobody.
https://www.youtube.com/watch?v=aoFiw2jMy-0
(Score: 2) by sigterm on Tuesday October 18 2022, @09:06PM
Regarding the Vanity Fair article: No, that's not a strong argument at all.
Vanity Fair didn't want or need a realistic depiction of Prince, they just wanted any old picture of Prince to put in their article. It was used for illustrative purposes only. They could have used literally any photograph, or for that matter a charcoal sketch if that's what had been available at the time.
Sure, if Goldsmith argument was "if my picture of Price was the only one in existence, they'd have to pay me to use it," then that's true. But it's not the only picture available by a very long shot, and hence it's not the argument being made.
Instead, Goldsmith seems to make the claim that Vanity Fair must have chosen the Warhol piece expressly because of its similarity to her photograph, which is a dubious claim. In fact, it may just as well have been the fact that it was a work of Andy Warhol because, like it or not, Warhol was/is ridiculously famous, and Goldsmith really isn't.
(Score: 1, Touché) by Anonymous Coward on Monday October 17 2022, @05:05PM (3 children)
"It would make the entire Fair Use provision essentially null and void."
Guess we'll find out what sort of blackmail on Supreme Court justices
the Haus of Maus has been holding onto waiting for this.
(Score: 3, Insightful) by Anonymous Coward on Monday October 17 2022, @06:16PM (1 child)
How do you even blackmail the majority on this court? They have no shame. They outright lie during their confirmation hearings. The one who was ramrodded through in the month before the admiration changed, turns up a month later at an event to honor and pay back the guy who rammed her through, and then she had the gall to appear upset that people think she is a pollical hack. When you can overtly and very publicly do these things, what the hell could Disney have on them that would cause them shame? (and notice that I didn't even get to mentioning the guy with the spouse who was planning an insurrection and who advocates the overthrowing of democratic processes and institutions)
(Score: 0) by Anonymous Coward on Tuesday October 18 2022, @12:54AM
The same Supreme Court whose argument for abandoning 50 years of precedent was "Wrong, LOL". Did you appreciate the subtle argument, the penetrating insight, the detailed understanding, of our greatest legal minds. Wrong LOL.
https://local12.com/news/nation-world/justice-samuel-alito-roe-wade-egregiously-wrong-from-start-supreme-court-right-abortion-ruling-law-rules-limit-ban-decision [local12.com]
(Score: 1) by pTamok on Tuesday October 18 2022, @06:01PM
"It would make the entire Fair Use provision essentially null and void."
What, much like the concept of "limited Times" [wikipedia.org] for copyright? Eldred v. Ashcroft [wikipedia.org]
(Score: 5, Insightful) by janrinok on Monday October 17 2022, @12:24PM (2 children)
My concern is that we rely on 'Fair Use' to enable us to extract portions of published articles for our stories. We always acknowledge the original source and provide a direct link to it. Depending on whereabouts on the spectrum the final outcome of this trial lies could have a significant effect on sites such as ours, Slashdot, and many others.
(Score: 2) by c0lo on Monday October 17 2022, @01:01PM
Yeah, naaah, no worries, mate; she'll be apples.
You see, everything is published on dark red, totally different to the sources.
Besides, S/N editors work hard to adjust the news to the high level of scitech its readers expect; social topics only in the Journals.
And its never about trivial stories picked from sites with dubious reputation, that's a FatPhil guarantee (large grin)
https://www.youtube.com/watch?v=aoFiw2jMy-0
(Score: 1, Interesting) by Anonymous Coward on Monday October 17 2022, @06:00PM
I don't know if I'm too concerned. A lot of the stuff posted here comes from press releases, either directly from the place putting it out, or through a SN-like aggregator (scitechdaily, phys.org, etc.) who paraphrase and/or simply copy/paste the press release without adding much to it, so if we need to we can link to the source ourselves. Press releases obviously are released specifically to get publicity. Some sites, like The Conversation, release their stuff under a CC license, so we'd be ok there. IANAL, but I would think the first fair use criteria listed, the purpose of what you're using it for, itself would be sufficient for a place like here or slashdot, where the purpose is not to make/break news as it is to start conversations (I understand, of course, that if a lawyer gets involved it doesn't matter much if you are in the right than it does if you want to put in the energy to deal with it).
I'd also like to think that whomever we link to appreciates us linking to them because it leads interested parties to their web sites (at least for the very many who RTFA!).
(Score: 4, Interesting) by MIRV888 on Monday October 17 2022, @01:20PM (3 children)
The stealing part is irrelevant. Once your images hit the web it's over.
For personal use short of high dollar art / commercial use its completely unenforceable and silly.
Hammering another Artist's work so you can make $$$$, not so much.
Where that line is at on the map is about to be drawn.
(Score: 4, Insightful) by DeathMonkey on Monday October 17 2022, @03:32PM (1 child)
This happened before the web and is definitely in the high dollar art category.
I'm a bit more receptive to copyright claims when so much money is getting passed around.
(Score: 2) by MIRV888 on Tuesday October 18 2022, @09:02PM
Agreed
(Score: 0) by Anonymous Coward on Monday October 17 2022, @05:59PM
> Where that line is at on the map is about to be drawn.
We all know with this Supreme Court that the decision will come down on the side of owners. Excuse me, job creators. Who deserve the profit for any derivative work done by others. The inheritance of ownership ensures proper respect for the derivative works of owners.
(Score: 4, Insightful) by progo on Monday October 17 2022, @05:31PM (3 children)
Could it really do that? How do you make case law from this? It seems like this case hinges on a very specific question deep in the weeds. Is THIS act of art derivative or transformative? I don't see how you can generalize from this case. The law seems to leave "is it really fair use" up to the parties in a dispute and the courts, and can't write a logical definition of it.
(Score: 3, Informative) by HiThere on Monday October 17 2022, @05:43PM
Look at the way some of their past decisions have been used. E.g. one of them turned California from a rather red state to a rather blue state. (That was the one deciding that state senators had to be elected based on population rather then geography.)
Javascript is what you use to allow unknown third parties to run software you have no idea about on your computer.
(Score: 2, Flamebait) by epitaxial on Monday October 17 2022, @11:34PM (1 child)
Case law no longer matters for the supreme court given the recent set of rulings.
(Score: 0) by Anonymous Coward on Thursday October 27 2022, @05:11PM
Not sure if you're a US citizen. Lot of non-US citizens seem to have overly strong opinions about US laws and politics. On one hand I'm flattered. On the other hand, if you disagree with us (USA) then learn from it and focus it on your own country and prove us wrong. We've been known to learn from others.
Regardless, you don't seem to have a grasp of courts, laws, and US govt. structure. Case law (precedent) is not always Constitutionally or otherwise correct. It is by very definition the Supreme Court's job to correct lower courts' incorrect decisions, whether you agree with them or not.
(Score: 3, Insightful) by SomeRandomGeek on Monday October 17 2022, @07:37PM (6 children)
Something was bothering me about this article, so I went and read TFA, and now it is bothering me even more. As laid out in TFA, the law has a clear test balancing 4 factors to determine whether a particular use is fair use. It doesn't say anything about any novel legal theories about this test coming from either party or the justices. It is just a question of how the facts of this case fit the well established law. It is not clear to me why this case needed to go to the supreme court, or how any ruling that the supreme court makes affects anything except artwork based on photographs of celebrities. I guess the court could use this opportunity to introduce a sweeping new interpretation of copyright law, but no evidence has been given to suggest that they will.
(Score: 1, Touché) by Anonymous Coward on Tuesday October 18 2022, @12:57AM (2 children)
6-3 LOL. New rule.
(Score: 0) by Anonymous Coward on Tuesday October 18 2022, @02:44AM (1 child)
> 6-3 LOL. New rule.
I'm a clueless engineer, couldn't find an explanation of this in the Urban Dictionary, so gave up.
Help me with a definition of this new rule please!
(Score: 3, Informative) by kazzie on Tuesday October 18 2022, @05:36AM
I'm guessing here, but an AC post higher up the page used the phrase "Wrong, LOL" to describe the US Supreme Court's reasoning when overturning Roe vs Wade. That decision was taken with a 6-3 majority (so a quick web search tells me).
(Score: 2) by Thexalon on Tuesday October 18 2022, @03:00AM (2 children)
The current court doesn't have a legal theory, nor does it want one since that might involve getting some sort of logical coherence that could hamper their ability to do whatever they want. They'll just go with whatever the people at the Federalist Society tell them to do.
The only thing that stops a bad guy with a compiler is a good guy with a compiler.
(Score: 2, Insightful) by SomeRandomGeek on Tuesday October 18 2022, @05:16PM (1 child)
You underestimate the current court. Sure they are all political creatures. But they are also top notch legal scholars. They can and will interpret existing law and precedent with great insight and sound judgement. When it serves their political ends. In this case, I am not aware of either conservatives or liberals having much interest in chucking our existing copyright regime and starting over. So, I'm expecting the court to judge this one straight.
(Score: 5, Interesting) by Thexalon on Tuesday October 18 2022, @06:18PM
No they aren't. You'd think that they should be, but they aren't.
And I can tell you why they aren't too: Back in 1990, dyed-in-the-wool Republican David Souter got appointed to SCOTUS by George H.W. Bush. He was, according to a relative of mine who argued in front of him regularly before he was famous, a top-notch judge who always did his research, dotted the i's, crossed the t's, and saw through an awful lot of the nonsense lawyers would try to pull (as an example: he chewed out my relative for getting page numbers wrong in a legal brief, because he'd checked ... and then sent an apology because he'd been reading the wrong edition of the book). Two years later, with a 5-4 Republican majority on SCOTUS Planned Parenthood v Casey came before the court, a case that was supposed to undo Roe v Wade, and Souter to everybody's surprise went with the established laws and court precedent rather than political convenience. Soon he was voting more with the Democratic appointees than the Republican appointees, and by the time he retired (largely due to anger over Bush v Gore which he firmly believed all 8 of his fellow justices had voted based on politics rather than law) he was considered a reliable liberal vote.
The Federalist Society and those on their side of the political aisle vowed never to make that mistake again, so ever since they've opted for political hacks, not legal scholars. Because legal scholars are unreliable, whereas hacks generally are.
The only thing that stops a bad guy with a compiler is a good guy with a compiler.
(Score: 3, Insightful) by ChrisMaple on Tuesday October 18 2022, @02:55AM (1 child)
Fair use claims are often overly broad. On the other hand, claims for damages are absurdly high. In this case, Warhol's work could easily be considered a work of satire , and be found to be well inside the bounds of fair use. The original photo is hideous, and Warhol's work is even uglier.
To protect the original artist's rights, decisions on what is too close a copy should be broader. To provide justice, damages should be more in the vicinity of $40, not $millions. The cases should be decided by a small claims court, that is, the use of lawyers is prohibited.
(Score: 0) by Anonymous Coward on Tuesday October 18 2022, @03:27AM
Now that's a precedent I'd like to see the Supreme Court set -- rejecting a case and returning it to small claims court.
Something like that would really seal the fate of the current court (in a bad way).
(Score: 3, Insightful) by bzipitidoo on Tuesday October 18 2022, @08:39AM (1 child)
Warhol died 35 years ago. His works should all be public domain by now. There shouldn't be a foundation worth millions that has any authority over uses of Warhol's work. Oh yeah, Prince is dead too.
If Goldsmith has any case at all, it should be paid out of a public fund. The current system is far too chilling of fair use. Even if it was greatly reformed, terms drastically shortened, it is still at heart a system of "mother-may-I?" Have to beg for permission. It's plain ridiculous that Warhol should've paid Goldsmith. There are no doubt many, many other photographs he could've used.
(Score: 2) by MIRV888 on Tuesday October 18 2022, @09:05PM
Disney disagrees.
20 years on copyright is a suggestion.
;-)
(Score: 1) by HammeredGlass on Tuesday October 18 2022, @02:38PM
What else is new?