Goldsmith's legal dispute with the custodians of Andy Warhol’s art continues when the Supreme Court will hear arguments on October 12.
https://www.theatlantic.com/ideas/archi … ce/671599/

Are our copyright laws with or without Berne Convention (1988) requirements excessively stringent?

I'm generally inclined to allow reasonable leeway for artistic interpretation.

But I am disturbed by just how "precise" Warhol's version is in so many ways.   It's almost as if he put the photo on an overhead projector and traced the image (remember we're talking 1984!).

While I agree with the need for copyright as well allowances when it comes to some level of interpretation, I think this one just goes too far.  But that's just my personal opinion.

Hmmm...
42 years ago, Andy Warhol did something with a photograph taken by another artist.
She didn't like it but failed to receive compensation for the infraction.
Then, he died.

I guess she can keep at it until she dies? Maybe her descendants can sue whatever organization it is that continues to trot along based on what success the Warhol name can still claim in the open market.

I see her point, up to a point. How will the defendant speak for themselves, being dead and all?

Maybe Warhol's "team" are sitting on a pile of cash and she wants some?
If that is the case and I were the judge I'd be inclined to give her some but not the amount she requests.
They can just counter with an appeal and run the clock down until she goes away.

Futility slowly sinking in quicksand?

As a songwriter, the limits of copying another's lyrics are already part of copyright law. Chord changes are up for grabs and melodies are nearly impossible to "create" without them sounding like something else that has already been sung umpty bajillion times. I take the ideas of others in different directions all the time.

I see it all the time on Model Mayhem, there isn't much truly original work on here, is there?

"In the earlier verdict, judge John G. Koeltl found the Warhol images were fair ise because they transformed a “vulnerable, uncomfortable person” in Goldsmith’s original photograph into “an iconic, larger-than-life figure.”

“That was error,” Lynch wrote. “The district judge should not assume the role of art critic and seek to ascertain the intent behind or meaning of the works at issue.”

To be a transformative use, he added, the new work must offer “something more than the imposition of another artist’s style on the primary work.” He compared Warhol’s distinctive silkscreen aesthetic to filmmaker with an easily identifiable style turning a book into a movie—that doesn’t mean the film is no longer a derivative work.

"In 1981, Goldsmith had a photoshoot with Prince while on assignment for Newsweek, but the images were never published. In 1984, Vanity Fair licensed one of her portraits of the singer for artistic use for an illustration commissioned from Warhol. The artist ultimately made 16 works based on the photo—but Goldsmith only learned about them in 2016, after Vanity Fair republished the artworks after Prince’s death, without crediting her.

The Andy Warhol Foundation drew first blood in the ensuing legal battle, filing a pre-emptive lawsuit in April 2017 asking the court for a declaratory judgment stating that the “Prince Series” did not violate Goldsmith’s copyright. A countersuit from the photographer soon followed."

https://news.artnet.com/art-world/andy- … it-1955399


Warhol used a "process of tracing and underpainting as a base layer for their final silkscreen print."  But further down in the article, it attributes a photographic silk screen process to Warhol.  That process is probably the one that is known as Photo-emulsion silk screen.

Andy Warhol turned to his most notable style—photographic silkscreen printing—in 1962. This commercial process allowed him to easily reproduce the images that he appropriated from popular culture. Warhol’s Flowers series is a portfolio of ten screenprints and hundreds of paintings based off of photographs taken by Patricia Caulfield, which were featured in the June 1964 issue of Modern Photography magazine. After selecting the image, Warhol sent it to a commercial silkscreen maker with a note as to the desired dimensions of the screen and the number of colors to be printed. After the image was exposed and the screen was prepared for printing, it was returned to The Factory, Warhol’s New York City studio. The photographic silkscreen printing process created a precise and defined image and allowed Warhol and his assistants to mass-produce a large number of prints with relative ease. While the flowers originate from realistic photographs, Warhol altered his versions of the flowers, by flattening, cropping, and increasing the contrast of the image, then painting them using vivid colors. Caulfield saw the initial prints and took legal action against Warhol. Warhol offered her a couple of prints in hopes of settling the dispute, but she declined the offer. They settled and in 1964 Warhol went on to exhibit his Flowers at the prominent Leo Castelli Gallery. While Warhol didn’t invent the photographic silkscreen process, he developed his own technique by combining hand-painted backgrounds with photographic silkscreen printed images to create unique works of art.


https://www.warhol.org/lessons/silkscre … -printing/

There won't be any more appeals regarding this case since it is going to the Supreme Court.  edit: Unless they send it back to a lower court.

The legitimacy of the claim is one thing, the timing is another.
Andy Warhol died in Feb, 1987, that's 35 years ago.

If she got no traction back then, how does she expect to succeed now?

It isn't about traction. Though, if the case ended now, Goldsmith won per the appeals court ruling.  Therefore, it is not only that the Warhol Estate preemptively filed the suit against Goldsmith when Goldsmith became aware of the infringement, but they have furthered the appeal to SCOTUS.

The case is about the law and the interpretation of it and how that interpretation impacts all of us.  Things take time to wind their way through the courts.  It isn't about when Warhol died.  It is about the duration of copyright rights.  Which has nothing to do with the death of the infringer.  It is important to remember that our rights, under current law, extend beyond our death.

§302 · Duration of copyright:
Works created on or after January 1, 1978 [superscript 4]
(a) In General.—Copyright in a work created on or after January 1, 1978,
subsists from its creation and, except as provided by the following subsections,
endures for a term consisting of the life of the author and 70 years after the
author’s death.
https://www.copyright.gov/title17/title17.pdf (pg 173)

"Previous copyright law set the duration of copyright protection at 28 years with a possibility of a 28 year extension, for a total maximum term of 56 years." https://en.wikipedia.org/wiki/Copyright_Act_of_1976

Based on the old law (pre 1978), if Goldsmith took the photos in 1981.  Plus 28 years is 2009.  Plus 28 more years is 2037.  Based on the time of the infringement, what good is a copyright law if you are granted 56 years of exclusive rights but have to give them up after 3 years?  Clearly by the above description of  "70 years after the author's death," the copyright is enforceable.

I was given a book, made and marketed for artists to learn to draw figures.  There is an image in that book that I would like to paint.  Because it was intended as a tool for people to copy, I should have fair use rights.  I have created a much more elaborate scenario around the image.  Therefore, the fair use doctrine should be extended by transformational rights. The publication date of the book is 1929.  That means that I ought to be able able "steal" it outright because the copyright is expired. (Which I would still affirm that subsequent laws have not altered that.)  Someday I will paint it, but I will probably still protect my ass by shooting the image with someone else.  If I haven't already.  Partially because anyone that has a shot of the same pose that is under the current copyright laws, could make a claim, bogus or not.

With Warhol, his estate claims he was a transformational artist.  Not that the work is transformational.  For fair use to apply, the work had to be transformational, and per the appeals court, not merely a difference in style.

My. concern is the conservative majority of the court could strip away the rights of the unknown artist and photographer and allow those with media savvy and name- which is often related to controversy, to profit off of people.  Richard Prince comes to mind.   https://www.theartnewspaper.com/2018/10 … hotographs

The court acknowledged that it is “conceivable – albeit highly unlikely – that a fair use affirmative defense can be addressed on a motion to dismiss.”  Therefore, the court went on to examine “the four fair use factors in light of the factual allegations of the Complaint and its exhibits.”  But, it ultimately decided that the issue of fair use could not be decided at the pleading stage:
Defendants’ motion is premised on the supposition that [Prince’s work] Untitled is transformative as a matter of law and that crediting its transformative character compels a finding that the other fair use factors also weigh decidedly in defendants’ favor. This logical chain breaks at the first link; the Second Circuit’s precedents do not support a finding that Untitled is transformative as a matter of law. Moreover, because the Court can only review the narrow set of facts that appear in the Complaint and its appended exhibits – and because all of the plausible factual allegations contained in those documents must be viewed in the light most favorable to the plaintiff – the Court cannot conclude that any of the four fair use factors favors defendants.

On the first fair use factor, “purpose and character of the use,” the court held that, because Prince’s “New Portrait” had not made substantial aesthetic alterations to Graham’s “Rastafarian,” “a simple side-by-side comparison of the two works is insufficient to show that Prince made transformative use of Graham’s original as a matter of law.”  The court held that Prince’s work “does not belong to a class of secondary works that are so aesthetically different from the originals” that a “reasonable viewer” would deem them transformative as a matter of law, or would conclude that Prince’s alterations imbued the original work “with new expression, meaning, or message.”  In the court’s estimation, Prince’s “New Portrait” was “certainly no more transformative than the five works in Cariou that the Court of Appeals remanded to the district court” for being too “similar in key aesthetic ways” to the originals.  Rather, Graham’s photograph, “unobstructed and unaltered,” is the dominant image in Prince’s work.  The court indicated that defendants face an uphill battle—“defendants will not be able to establish that Untitled is a transformative work without substantial evidentiary support”—but also provided a hint of the type of evidence that might help defendants later in the case, suggesting that such evidence “may include art criticism,” as well as evidence of Prince’s intent, which is not dispositive but is also “not irrelevant.”

https://www.grossmanllp.com/infringemen … nst-prince

Thanks Hunter, did you find this sentence a bit disturbing? I did, in quotes...

"Works created on or after January 1, 19784 "

Thats a LONG time from now, no?

 



It is 6:30 in the morning.  Try as I might, I don't have anything funny to say about it.  So, I will just put in a llama and a bunny.  That's always good for a laugh before coffee, right? 

One of the advantages and drawbacks of this site, is that anything copied and pasted ends up in the same font, style, color and size.   The four is a superscript that is in the text.  Fortunately, we do need to wait that long for the implementation of the law.

There are lots of shades of grey to this issue. The only thing I can say from personal experience is that Lynn Goldsmith is one of the most miserable photographers I've ever met. I assisted her for one day outdoors when she was shooting actor Eric Roberts. There was more yelling than a football game. That was the only day I ever worked for her and I turned down future shoots with her even when I needed the money. On the creative side I have yet to see a celebrity photo of hers that Annie Liebowitz didn't do far better.

Another and comprehensive article on the pending SCOTUS review of the case.

https://www.cnn.com/2022/10/12/politics … index.html
excerpt

"Lawyers for the museums also noted that the lower court opinion “failed to consider” longstanding artistic traditions of using elements of pre-existing works in new works and asked the Supreme Court to revisit the appeals court ruling."

"In the Baroque era, [1600-1750 [1]] for example, Giovanni Panini painted modern Rome (pictured in court papers) [see: https://www.metmuseum.org/art/collection/search/437245 ] depicting a gallery showing famous art. Included are copies of preexisting works including Michelangelo’s Moses, Gian Lorenzo Bernini’s statutes of Constantine, David, Apollo and Daphne and his fountains of Piazza Navona. Contemporary artists also continue to leverage preexisting artwork, the museums argued. The street artist Banksy, for example, painted a piece, “Girl with a Pierced Eardrum” [2014 [3]] [see: https://visitbristol.co.uk/things-to-do … -p2090683] onto a building in Bristol. It was in reference to Johannes Vermeer’s masterpiece, “Girl with a Pearl Earring” from 1665. [see: https://www.mauritshuis.nl/en/our-colle … l-earring/ ]

“All of these works would not be considered transformative under the Second’s circuit’s” approach, the museums argued."

reference: "The mural, a take on Dutch artist Johannes Vermeer’s “Girl with a Pearl Earring” but with a security alarm replacing the pearl, was painted on a harbourside building in the street artist’s home city of Bristol in west England in 2014."  [3]

Observation:
The lawyers for the museums are disingenuous to use these absurd examples to justify copyright infringement.  In both examples they used as artistic license to involve preexisting woks, the preexisting works were hundreds of years old  and would have been unlikely to have been under copyright protection, then, or at any time, given that the first copyright law, the Statute of Anne in 1710 applied only to books.

I do agree that "Girl with a Pierced Eardrum” would not be transformative, but it is irrelevant given the reality.  To claim the Panini piece is not transformative is laughable.

Also, any ruling the court makes now is likely to carry little weight since this case involves the 1976 law, prior to the adoption of the Berne convention, which, in my opinion, greatly reduces the "fair use" doctrine.

[1] https://www.baroque.org/baroque
[2] https://en.wikipedia.org/wiki/History_of_copyright
[3] https://www.reuters.com/article/us-heal … SKCN2251V9

https://news.artnet.com/art-world/warho … ts-2190632

The oral arguments have been heard.  Not much new information was introduced in the article about the two hour hearing, except for Clarance Thomas' reveal that he was a Prince fan back in the 80s.

I find this argument to be perplexing: "Martinez [attorney for the Warhol foundation] countered that a ruling in favor the foundation of will actually help any emerging artist “who wants to create new and innovative work that integrates preexisting images”—and that limiting the scope of fair use will “chill the creation of new art by established and up-and-coming artists alike.”"   It seems to me that this is one of the things that copyright protections are meant to discourage- the pilfering of one person's work by the rich and the poor alike for profit which excludes the creator as a benefactor.  Certainly it seems like the "emerging artist"  would or should be more reticent about sharing new work in any place where it can be commandeered, much as what Richard Prince did to profit off of the instagram photos of others.[1]

The argument about emerging artists rings hollow because it requires lines to be drawn as to what is "emerging" and when that artist's recognizability requires them to cease to employ someone else's efforts and rely entirely on their own creations.  Warhol's image of Prince was not a commissioned piece because Warhol was an emerging artist or Prince was an unknown.  It was a 1981 image of a celebrity, where, by license in 1984, an established and well known 56 year old artist who had "received sudden notoriety in 1962,"[2] and his team (employees?), were to modify someone else's work with his pop art technique.  Is the argument being made that a man who was notorious for about 22 years was still an emerging artist?  No.  He was clearly an established artist.  Therefore, should there be some point where an established artist is responsible for creating art without integrating preexisting images from someone else's efforts?

I believe that if an emerging artist is inspired by a photo and must "integrate preexisting images” for success, then the work is not innovative if it can't be done to one of their own photos with some measure of success.  Warhol should have stopped with what he was commissioned and licensed to do.

[1] https://www.theverge.com/2015/5/30/8691 … w-fair-use
[2] https://www.britannica.com/biography/Andy-Warhol

https://apnews.com/article/entertainmen … 7b79ed1bbb

In another copyright case, Cardi B is being sued over the use of a tattoo as part of an image on a mix tape.  The person who designed the art seems to have lifted the tattoo from a tattoo magazine and Cardi B claims to have had no knowledge of the source. The image of the person is not the person on the art, just the tattoo.

The plaintiff is claiming he has been humiliated because of the sexual nature of the image.  Sensitive issues may be a factor.
The defense os claiming fair use due to the transformative nature,
There is no mention of the right to publicity in the article.
There is no mention of the tattoo being registered with the copyright office.


It will be interesting to see where this goes.