fair use ruling: Warhol work didn't transform enough...?

[Jeffrey Isaac Greenberg]

Warhol work didn't transform enough...?

https://www.nytimes.com/2023/05/18/us/supreme-court-warhol-copyright.html

(may require subscription)

 

US Supreme Court judgement against Warhol foundation;

can anyone link the photo & the artwork?
am not clear why Warhol lost:
a. artwork was not transformative enough?

b. if (a) true, how close was it to being transformative?

c. it wasn't about being different enough, it was about licensing to magazine

d. it wasn't about (c), it was about:__________________

COME ON PEOPLE LET'S CLEAR THIS UP

Edited June 27, 2023 by Jeffrey Isaac Greenberg

[wiskerke]

4 hours ago, Jeffrey Isaac Greenberg said:

Warhol work didn't transform enough...?

https://www.nytimes.com/2023/05/18/us/supreme-court-warhol-copyright.html

(may require subscription)

 

US Supreme Court judgement against Warhol foundation;

can anyone link the photo & the artwork?
am not clear why Warhol lost:
a. artwork was not transformative enough?

b. if (a) true, how close was it to being transformative?

c. it wasn't about being different enough, it was about licensing to magazine

d. it wasn't about (c), it was about:__________________

COME ON PEOPLE LET'S CLEAR THIS UP

It was the licensing use, not the creative use, that was at issue.

Warhol had licensed images from photographers before. Goldsmith counter-sued. The Warhol Foundation disputed her bill for the new publication and went to court first. This is all firmly RM stuff. The bloodsuckers had it coming. The Warhol Foundation should have known better or should have hired more honest lawyers.

The original images are in the link underneath that article: https://www.nytimes.com/2022/10/12/us/supreme-court-prince-warhol.html?action=click&module=RelatedLinks&pgtype=Article

The whole series is in other publications, like NBC News; NPR.

The original 2016 article in VF is here.

Not sure how good your legalese is, but here is the original decision.

 

wim

[Jeffrey Isaac Greenberg]

On 27/06/2023 at 18:52, wiskerke said:

It was the licensing use, not the creative use, that was at issue.

WimW

 

thanks for link to photo & Warhol artwork;

still confused as to reason photog won;

although I agree photo should win because

AFAICT there are only 2 transformations;

1. change from photo to graphic

2. change in colors

AFAIK judges cannot decide artistic transformations

such as change in mood or intent...?
if Warhol had made more transformations, e.g.,

a. put mask of Zorro over face

b. changed skin to reptile scales

c. blown smoke out of ears

d. changed hair to baby carrots
e. made Prince a sweaty oaf

etc etc blah blah blah

then Foundation's later published results in Vanity Fair

wouldn't have lost case to suing photog...???

i.e. the reason for loss is not-enough-transformation...?

[wiskerke]

1 hour ago, Jeffrey Isaac Greenberg said:

WimW

 

thanks for link to photo & Warhol artwork;

still confused as to reason photog won;

although I agree photo should win because

AFAICT there are only 2 transformations;

1. change from photo to graphic

2. change in colors

AFAIK judges cannot decide artistic transformations

such as change in mood or intent...?
if Warhol had made more transformations, e.g.,

a. put mask of Zorro over face

b. changed skin to reptile scales

c. blown smoke out of ears

d. changed hair to baby carrots
e. made Prince a sweaty oaf

etc etc blah blah blah

then Foundation's later published results in Vanity Fair

wouldn't have lost case to suing photog...???

i.e. the reason for loss is not-enough-transformation...?

 

I'm pretty sure it's not about the transformation. That's what the minority (Judge Kagan) was about. The majority sidestepped that I think and stressed the transaction: He paid before and he (now the Foundation) should pay up now also.

 

Judge Sotomayor wrote: Warhol himself paid to license photographs for some of his artistic renditions…Such licenses, for photographs or derivatives of them, are how photographers like Goldsmith make a living. They provide an economic incentive to create original works, which is the goal of copyright.

 

Artnet article about the transformational quality: it's a bad Warhol.

 

wim

[zxzoomy]

A small way I earn extra money is selling old 35mm slides from my large collection online. My uncle spent twenty years lecturing for Kodak so I have a yen for Kodachromes and all manner of brands. Larger format 828 Kodachromes, for example. Slides taken by amateurs in the 1960 to 1990 era usually offer an original image and sometimes I can include copyright in the sale. Occasionally an artist will buy one and tell me that is their motive: to copy it: great. I suspect my artist buyers are amateurs who want to paint for fun.  But if they become famous and want to sell their painting for $75,000 no photographer will be chasing them through the courts. Sensible artists will choose what they decide to copy as we do not want to be sued, do we?

[Rebecca Ore]

I remember a while back someone licensed an Alamy photo for a decent price which was used in a composite for a small country's bank note. Warhol's estate can afford to pay fees for parts of composites.