Does Andy Warhol get same copyright treatment as Google code?
hollywoodreporter.com
hollywoodreporter.com
None of those concerns exist in this case of Warhol copying a photo of Prince. There may certainly be other reasonable reasons for or against Warhol's use of the photo on fair use grounds, but the Google v. Oracle case is not one of them.
From the ruling:
In answering this question, we have used the word “transformative” to describe a copying use that adds something new and important. Campbell, 510 U. S., at 579. An Cite as: 593 U. S. ____ (2021) 25 Opinion of the Court “‘artistic painting’” might, for example, fall within the scope of fair use even though it precisely replicates a copyrighted “‘advertising logo to make a comment about consumerism.’”
I would argue that the use of the Goldsmith art to create the silk screens was needed for the "interoperability" of the statement warhol was trying to make.
The fact that it IS specific, recognizable art is what makes the actual mental connection, a sort of "API of the psyche", if you will, and hopefully conveys the desired information to the endpoint, or viewer.
To me, (in a fantasy, perhaps incompletely considered "sane" world) once you broadcast or publicize something, you really waive all right to continue controlling it. If you want it for yourself, then keep it to yourself. But if you voluntarily allow it to be broadcast on TV or radio, or published in books or magazines, then you chose to make it a part of everyone's environment, and at that point it's THEIR environment, which in a sane world, they are free to at least observe and discuss. And recording and re-transmitting, even without transformation would just be forms of observation and discussion.
If the original photographer didn't want their photograph disseminated, they were free to not publish it or sell it to someone who they knew would publish it. They could have kept it locked in a safe in their own house and for their own enjoyment, and no one else would ever see it, remember it, or depict their impression of that memory to others.
Tell me Warhol's work is not impressionism.
I also wonder what the photographer paid to Prince for the use of his likeness... Or maybe the real theft victim and moral owner of this intellectual property is the designer of the camera or the film or firmware? After all, the operator may have pressed a button, but the engineers did far more work and the image was actually literally created by the camera.
Declaring all sharing discussion just doesn't cut it.
I would _like_ if we were in a place we could have this environment/discussion idea, but we're not even close.
It would make the legal aspect of profiting off such works 10x more complicated. And determining the appropriate percentages for each "contributor" would be a nightmare, if not impossible. But would it be more fair in the end?
Even music, which has compulsory licensing, grants the copyright owner the right to refuse to have their work used in certain contexts.
You could run the work like a corporation with a majority being required for the decision I suppose. But this gets sticky really quickly.
In some jurisdictions, the copyright law has a mechanism for professional associations to be responsible for collecting the copyright within a certain area. Now that I think about it, the model seems like it might be adaptable to software.
No because then anybody could siphon ownership of a work away from its owner just by copying it without permission and with these kinds of modifications. Do many different versions and gain many portions of ownership.
I don't think the situation you describe applies however. Someone wouldn't be able to siphon away ownership by using someone else's work. The person whose work is being used in the new work would be able to gain partial ownership of the new work. The author of the new work would only have ownership of their unique contributions, not ownership of the original work's contributions.
I was more thinking of situations where a person, say, photographs a building they don't own or didn't design. They couldn't have taken that photo if no one built the building. But they alone own the copyright to the photo. Technically anyone who helped construct the building contributed to the creation of the photo, but have no right to prevent the photo from being circulated, sold, etc..
Let me be clear on saying that that's how I think it should be. I don't think we should stymie productivity for creating art/music, even when you are using other's creations as pieces of your own creation. But it gets murky like the case described in the article where Warhol created his own work depicting Goldsmith's work, and the courts ruled it wasn't a fair use.
The copyright owner of the original owns that copyright, including of the elements incorporated into the derived work. The copyright to the creative elements of the derived work are controlled by the copyright holder of the derived work, which may have a longer period of validity than the original work copyright.
To distribute the derived work while the original copyright is in force requires permission (license) of the original copyright holder, or a determination that the derivation is a fair use, which the Warhol Foundation is seeking.
The fundamental problem is likely because of issues with the arts under capitalism. Because authors need people to purchase their particular works to make money, royalties by necessity need to be paid and lines need to be drawn over what is "original" or not. This is not the only system that can fund the arts; there is state funding, patron style funding, etc. where authors are not paid on the basis of each individual work, but the collective impact of their works.
I think the warhol foundation is in the right here, but the API decision has no relevance.
I explained down thread what I had meant to say.
> "those 11,500 lines, however, are only 0.4 percent of the entire API at issue, which consists of 2.85 million total lines. In considering "the amount and substantiality of the portion used" in this case, the 11,500 lines of code should be viewed as one small part of the considerably greater whole...
Andy Warhol museum's lawyers are making a PR play maybe. I don't think they're going to get very far in court with it, I don't see much similarity, just starting there.
[Also, yes, let's talk about the fact that the Supreme Court is still confused about what "API" means, calling the entire Java codebase "the API". That whole case was a mess of mistaken conceptual understanding of what software and APIs are and how they work. But anyway.]
This is posing it the wrong way around. The API is still a tiny subset of Java itself.
If that 3.6 minutes is composed of any substantiate part of the Beatles' song, then you'll clearly have a problem.
However, we actually do have case law in this particular case that we can refer to, specifically, around sampling. In which case, we have several instances where samples less than 3 seconds can be considered substantive, as they may reflect the tone and rhythms unique to the original artist.
The API is just a tiny amount of code, but it is an extremely valuable and difficult to create portion of the code base. A good implementation is important, but a good implementation can't make up for a bad API.
The [actual] API is 'the most valuable' part of the code, true, but it's also the part least protected by copyright. "Factual" descriptions/specifications are not in fact copyrighted, and the right to make a reverse-engineered clone of something was already established under US copyright. If you want to for instance make a specification and say that nobody can implement it without your permission -- you can't actually do that under copyright law (you might be able to under patent law, in some cases).
If I were the judge, I would have decided the case based on that -- in favor of Google. That it's "fair use" to copy the API in fact regardless of what % of the work it was, precisely because cloning a specification is fair use, copyright is meant to protect a specific fixed expression (in the case of software that means the implementation) it's not supposed to prevent you from creating a compatible clone in the first place, and never has been interpreted that way before this case, it was a mistake, and you don't even need to decide what % of the code "the API" (the headers/method signatures) are to get there.
But that's not actually what happened in the US courts, the judges involved seemed (to my reading) to be very confused about these things, and not to really understand what an "API" (as specification) was, or it's role in software. They decided on different grounds. To me making the law pretty incoherent and unclear at this point. So it goes.
Also, "how difficult to create" something is has very little to do with it's protection under copyright in US law, generally, whether you think it should or not, not how the law works.
The test for "fair use" is not only based on portion of original used. It is a four part test, where the weighting of the four parts is not specified, it's subjective (as are some of the parts).
1. Purpose and character of the copy (which mainly ends up meaning commercial vs non-commercial) 2. nature of the copyrighted work (which often ends up being about how "original" it was) 3. amount copied 4. effect on the market
https://fairuse.stanford.edu/overview/fair-use/four-factors/
Yes. 100% inheritance tax.
I will say though that the comparisons with Google vs Oracle are meaningless. It is clear that the Warhol Estate's legal team doesn't understand the underlying concepts and/or are trying a very creative interpretation of the ruling to suit their needs.
Copying code. That's seems more duplication for strictly the original intended purpose.
The important thing with copyright is whether you copied, not how you copied. So copying a work by looking at it and then duplicating it is still creating a derivative -- or could be of you reproduce a substantial part of the creative work.
Now, AWF's position seems tenable to me as there are apects of the photo that are not the _creative_ input of the photographer; namely the likeness of the subject. Duplication of those aspects is akin to duplication of the API: is duplication of apects that are not the creative work of the creator of the first work (in one case because those aspects are technical, in the other case because those aspects are just the features of a person's face [the photographer didn't creatively produce those features, unless they're a plastic surgeon!]).
Now, Warhol did copy. Unlike Google he didn't need to copy that particular work for interoperability reasons. To me the fact that any photo would have embodied the subject's features equally well means Warhol had no need to copy this one. That makes AWF's case distinct from Google v.
https://en.wikipedia.org/wiki/Shepard_Fairey#Legal_issues_wi...
a photo doesn't have an API.
Where is the line between blatant copying and transformation? If I take some photograph and just change colors can I claim I changed the photo's perception and thus sent a unique message? Maybe, but it's all about ideas in my head, not the changed photo itself. Same goes about many Warhol's works. They are just slightly changed copies of someone else copyrighted works and must be accompanied by art critiques explanations to be appreciated in full.