A legal dispute that will test the limits of fair use
theatlantic.com
theatlantic.com
Classically, such transformation was a lot of work. A standard art-school exercise is to hand-copy a classic painting. Possibly with variations. Because that's quite a bit of work, it generally hasn't raised serious copyright issues. Now, though, it's very easy.
Much music litigation revolves around this. There are only so many note patterns that sound good. Someone has generated all 69 billion possible 8-note melodies and released them into the public domain, just to mess with any claims of melody originality.[1] Images are a bigger space, though.
[1] https://www.theatlantic.com/technology/archive/2020/02/whats...
• the purpose and character of your use
• the nature of the copyrighted work
• the amount and substantiality of the portion taken
• the effect of the use upon the potential market
It’s a tired argument and it’s not only lazy but easy to disprove.
Where to draw the line?
BTW, it also includes all images: http://babelia.libraryofbabel.info/
seems like in practice it would boil down to whose lawyers are better which is just a proxy for which party has more money.
"The scrambled file still has the copyright Colour because it came from the copyrighted input file. It doesn't matter that it looks like, or maybe even is bit-for-bit identical with, some other file that you could get from a random number generator. It happens that you didn't get it from a random number generator. You got it from copyrighted material; it is copyrighted. The randomly-generated file, even if bit-for-bit identical, would have a different Colour."
If we consider only lowercase non accentuated English characters and a few additional basic chars (space.,? etc), let's say 30 base characters, we are looking at 30^3200 combinations. Which is a number made of 4727 digits. Estimated number of atoms in the universe is 10^80. So basically nothing compared to this 30^3200.
Them claiming copyright over this would be a bit silly as the texts don't truly exist but only have the potential to be generated.
Let N = log(29)/log(2).
It is not possible to create a compression system where each work on average will use less than N*3200 bits once compressed, assuming each compressed value corresponds to only one work. This stems directly from the pigeonhole principle. What could be possible is to create a compression scheme where say pages consisting of english text can be compressed to smaller (at the expense of pages of random garbage being compressed to longer).
This stems from the fact that the entropy (information density) of English text is much lower the 29 character alphabet space can permit. But you cannot on average have the valid English only pages compress to smaller than their entropy either. You can design the system to favor some works over others, but the average compressed length must be equal to or greater than the average entropy of the works.
And all you have really done here is invent a weird lookuptable table based compression scheme for english text. All other compression systems are also similarly constrained by the entropy of the data to be compressed, but most other scheme don't require an infeasible large lookup table of basically every possible output.
I’m going to be pedantic, but: as far as US law goes, transformative use isn’t separate from fair use. Rather, transformativeness is a key test used to help establish whether something qualifies as fair use.
Here they are on ArtNet:
https://news.artnet.com/art-world/andy-warhol-foundation-los...
Copyright is framed such that the subjects of photographs generally have no claim to the resulting image. Why should the photographer's claim be absolute?
(And just for reference, I say this appreciating the work that goes into taking a good photo)
These works were made in one of his “factories” and were always a part of a larger series. The works were not made in a computer. They were very large screen prints.
To me how they were made and why they were made are just as important as the finished product.
One of my interpretations of Warhol is that celebrities might as well be produced on a factory line!
In other words, you feel that the Warhol piece is transformative because it was Warhol that made it and not because of the inherent properties of the work itself?
It means something different to make many large silkscreen prints than it does to apply some filters in Photoshop.
The ends don’t justify the means, it’s the journey not the destination, etc, etc.
I understand that when presented with a digital image that the original context is missing so I’m not upset with anyone who has another perspective!
You should instead be selling Grateful Dead t-shirts as they have never enforced their trademark!
If you drew the image yourself, and didn't derive from a copyrighted work, and then printed that, then it's "only" a trademark issue.
Punchline of the episode is Kelso spelled Ted Nugent wrong on the shirts so the boys get away without penalty.
A different artistic context alone usually isn't sufficiently transformative.
Doesn't seem like much artistic value has been added when you take a photo and silkscreen it 16 different ways with slight variations.
> 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.
I find that argument compelling.
It's an interesting aspect that we do not allow a model or actor to own the specific posing and/or acting, as this would imply considering any media capturing the performance as derivative work. There's an enormous bias in the system, right from the beginning.
This case is even more interesting, as the photographer argues that the Warhol's image directly competed with the original photo for a cover of Vogue and that the magazine picked Warhol's image to license. But, this is also a strong indication of the genuine artistic value of Warhol's work/version, since there was a reason that this was picked by the editors over the other one. There is a semantic difference, which was introduced by Warhol.
The border between infringing and not is subjective, like many things.
And, can a consortium of photographers actually own the likeliness of a person, since there are few chances to make a regonizable visual reference to a person without referring to a photo, as soon as the person is dead? So any depiction would be derivative per se, even it it were technically not founded on an individual photo.
Finally, a work may be derivative and even infringing, if it falls into the regulatory frame work of fair use. This is part of the system, as well. What is in question are the exact boundaries of this.
https://www.phaidon.com/agenda/art/articles/2012/september/1...
> However, criminal proceedings began when it transpired that Fairey lied in the earlier case, destroyed documents and submitted false images. In a statement published following the proceedings, the artist said that he 'accepted full responsibility for violating the Court's trust by tampering with evidence during my civil case with the Associated Press,' before going onto argue that he still believed he had a strong Fair Use case.
Trademark infringement cases can be ruinous, especially without insurance, but it’s civil not criminal.
This was a copyright case, not a trademark case. And if the FBI warnings at the beginning of VHS tapes are to be believed, you can face criminal charges.
https://www.law.columbia.edu/news/archive/obama-hope-poster-...
Part of the quality judgement on a work is in the nature of its comment on what has come before. This is whether you're putting on a play, designing a skyscraper, or designing the API to a website that keeps track of people's coin collections. If you fail to stylishly or profoundly reference things that have come before, your art is probably bad.
edit: and by "I think both sides are right" I mean that I think the pieces of art are completely different to the point of barely resembling one another, just the shape has been retained. I also think that the photographer contributed as much to the work's construction as the artist, and deserves as much of the profit and say in the decision-making about how it is used. And I should use collective pronouns for the artist, because Andy Warhol likely just told somebody to paint on the photograph, and suggested colors, then approved the best of 10.
> I think the pieces of art are completely different to the point of barely resembling one another
I must have read a completely different article.
Making copyright last 10 years only sort of solves this issue.
However, if there was something so special about that particular photograph that compelled Warhol to use it even without permission, then the argument that it was a ‘generic’ Prince photo falls apart.
Or, god forbid, Warhol or one of his minions could have taken their own photo of Prince…
Don't we want art that is pure and that is made by people like us (when we are not trying to make money), instead of by people who live in some completely alternate reality?
Copying has been a thing since the beginning of evolution. I'm ok with people making money through selling art, just don't bother me with human-made laws around copying.
When the initial cost of production is very, very high and the marginal cost of each additional unit very, very low, copyright is the solution that has so far been found to “work” to incentivize investment- assuming you agree it works. Not that the current implementation is best, especially the length, but the concept.
I've seen a lot of low budget movies that were better than the $200m ones. I don't need special effects to enjoy a movie, I need a plot. Check out "Dark Star", made for $50,000. It's far, far better than 95% of the scifi movies out there. Because it had an interesting plot. "Primer" is another example.
Otherwise, what is the incentive to do all the work and take the risk to make Primer if it is just going to be on YouTube for the benefit of Alphabet’s ad revenue?
Eg. Product placement, patronage, or a subscription service
Here's a good reason: the movie itself is an advertisement. For example, Michael Jackson hired a famous movie director to create his music videos. What where those videos for? Advertising for his live concerts which were huge money makers.
Movies might be advertisements in conjunction with just being a movie, but the creators’ multiple intentions do not seem relevant in this case.
For a related example, my dad wrote a book. The royalties were well into "not worth it", but he wrote the book to advance his professional prestige, and it worked for that.
Most authors of technical books, for example, fall into that category.
A director might want to make a movie to raise his market value in producing media for corporations, who have a constant need of such. Actors will do it for free just to be famous, which leads to all kinds of opportunities. Just look how the Star Trek TOS actors made a living off of their fame, and ST was a really low budget operation.
An alternative, for example: we could take the same amount of money being spent on creative works, absorb it through taxes instead, and redistribute it through a state-managed endowment system. The amount of money we spend for one Mick Jagger would probably fund quite a few musicians with a 70k/year stipend and an obligation to perform shows/generate recordings/etc.
But to pull that off, you'd need some sort of formal arbitrator to decide who is "enough" of an artist/scientist/etc. to qualify for an endowment. I know there's a very strong attitude of 'you can't regulate what art is', seemingly used to justify charging seven figure prices for products that look suspiciously like they were fished out of the local preschool's recycling bin.
I'm not sure it's the best analogy, but I considered the protections given to real estate agents as something similar. Why can't people just go negotiate directly with the sellers? I won't go into all the obvious details but there's real work back there, just as with art, and the end result isn't protected very well on its own, hence the need for laws, even silly sounding laws.
They can, unless the seller enters into an exclusive contract with a real estate agent.
edit: to be clear, I don't condone that at all, I just mean that's what I considered in thoughts about why we need laws that cover such things.
To my personal view, copyright is a good idea at the 7 year/14 year terms originally envisaged. Beyond that it becomes more of a harm to creativity and artistic cultural progression.
However, you do need to protect individuals from corporations. If I submit a book to a publisher, they say "no", then they hold it for 14 years and decide to publish it ... I'd still want to be protected. Visual artists, painters say, often become popular later in their career; should commercial interests be able to exploit that lag to sell the person's earlier work without the person getting reward?
> However, you do need to protect individuals from corporations.
This is generally true, so much so that I think the only relevant action would need to be general, to protect individuals from corporations generally. Creators would benefit from protection regardless of whether the term is changed.
> If I submit a book to a publisher, they say "no", then they hold it for 14 years and decide to publish it ... I'd still want to be protected.
Presumably a much greater proportion of work would be prepaid (via mechanisms like the built-in ads on youtube videos) or self-published. Although they continue to add value, publishers are much less necessary at the moment than previously (as we can see from independent podcasts). The marketplace and output might be completely different if there are short terms, but it will not lead to a collapse in production or a failure to remunerate artists.
In any case, the authors of copyright material are not presently engaged in free and equal relations with corporations. If nothing else, a corporation is generally able to sue you, whereas you're generally not able to sue a corporation. And a corporation will write contracts that regularly get tested in courts and get tweaked and improved, whereas you will rarely write contracts and you will rarely have opportunity to improve them based on problems.
> Visual artists, painters say, often become popular later in their career; should commercial interests be able to exploit that lag to sell the person's earlier work without the person getting reward?
This doesn't happen because their work obtains some additional quality through the passage of time, as though it were a wine ageing in oak. It happens because of the reputation of the artist; by buying the work, the owner has some kind of a relationship with a well reputed person. If anyone is selling a print, the print that is personally authorised by the artist will have a higher value. Therefore, I would suppose this isn't a problem that needs to be fixed.
None of this means that everything would continue just fine. Reducing copyright to a few years would be revolutionary. It would result in actual cultural changes. For instance, right now you can use copyright to create artificial scarcity that lasts essentially forever. With a seven year copyright, the artificial scarcity only lasts a few years, so you need to make the most of it. That means that oldness is free and recency is expensive - a reversal of the current system (where oldness is expensive, because it costs more to get something that last a long time, but recency is cheap)
I'm sorry to say this, but this is (from my personal experience as a one man company dealing with corporations) complete and utter baloney. Including suing them.
I wrote my own contracts, and lawyers who looked at them later said they were pretty good, though I probably would have been smarter to use the lawyers in the first place.
There is NO REASON WHATSOEVER that would force you to accept terms from a corporation that YOU DON'T LIKE.
Just say "NO".
And yes, I have successfully sued a major corporation you've all heard of for cheating me out of 6 figures of royalties. I won't name the company because this was settled long ago. It was so blatant that my lawyer took it on contingency.
Ordinary individuals can and do successfully sue major corporations all the time. All you need is a solid case.
The law automatically protects a work that is created and fixed in a tangible medium of expression on or after January 1, 1978, from the moment of its creation and gives it a term lasting for the author's life plus an additional 70 years.
When I originally licensed my Empire game back in the 80s, I put a clause in the contract that if they didn't put it on the market within so many months, the contract was automatically cancelled and all rights were returned to me. There was also a minimum royalty clause, and a clause against diluting it with bundling.
You don't need the government to get involved.
They produce so much better art than even equally talented people doing it in their spare time.
No need for artificial constructs like copyright law.
Without copyright, GPL and its deracinates have no leg to stand on to prevent it from being incorporated into closed source programs and forever locked away. Sure, you'll be able to copy the application without copyright protecting it, but you'd be unable to modify it. It would be the success of the free part at the cost of the libre values.
Because art takes time, effort, practice, talent, and the cost of materials. If someone produces something of value, they should be paid for that value. In order to produce art, the artist needs a roof over their head and food in their stomach. As a society, we value it enough to spend millions on it every year.
If you want art made by "people like us", buy it from them. If you don't feel like there is value in work by people who make their living painting or singing, don't buy it.
If you want people to do it for peanuts because that means they're passionate about it, that just shunts them off with teachers, CNAs, social workers, park rangers, and all the other folks doing difficult and demanding work where their compensation doesn't even begin to reflect their effort and the value they bring to society. But they should shut up and smile while they do it because they're passionate about it.
It's just basic fairness.
Art would be lesser if only wackos, hermits, trust-fund kids and ascetics were able to pursue it.
I think here both sides are actually right in this instance—and I don't disagree with you saying that the images ”barely resembling one another" but I would not go that far (as I think there is a significant recognizable resemblance).
That I disagree with you isn't the problem per se—as it'd be a damn boring world if we all agreed or experienced the same perception—rather it's that in cases like this the judgment relies on a subjective analysis by the person(s) doing the judging and that everyone's subjective judgement is different, moreover, to further complicate matters, such differences are likely to alter over time.
Thus, if courts allowed it, this case could go on indefinitely with no one being adequately served. This is an obvious case where copyright law has broken down and it's clear the law needs to be changed.
It seems to me that royalties ought to be split in this instance but I don't want to get embroiled in a discussion about how the law should be altered as that's not the issue here.
Rather it's that we have to face the fact that current copyright law is broken in many areas and it desperately needs reform to make it fairer and less contentious. It needs more than just a fine tuning, instead it requires major reworking, and for that we need to bring a much more sophisticated and nuanced approach to the problem.
'Fair use' provisions are already under considerable strain by the hardened attitudes of many copyright owners—especially from large corporations, Sony, Disney, Elsevier, etc.—and tightening them further by a precedent in this case would likely have significant negative repercussions elsewhere. If the law is tightened writers and artists who don't have big pockets won't dare risk doing derivative works even if they plan differences that are much larger than those in this case and that will twart innovation (if the law becomes more restrictive then copyright holders are also likely to become more litigious).
There are also other issues that make copyright law unfair such as the unreasonable increases duration of copyright, excessive restrictions on the use of orphan works, the right to copyright works that are only trivially different to works already in the public domain and the absolute rights of copyright owners with respect to licensing—that is that copyright law does not acknowledge those who are in a position to copyright material are also members of society who, in many instances, have developed their talents at public expense (their education etc.) and in return they have some obligation to society (which implies that some form of enforced arbitration ought to be a part of copyright law).
I'm not advocating that rights holders not be paid fair dues for their works—clearly they should, but at the same time they should not be allowed to exploit consumers of copyright material as has so often happened in recent years.
The difficulty with this case is that a fair decision in this instance could likely result in a net increase in copyright restrictions which will only increase the unfairness of copyright law. It's why we need urgent copyright law reform—and that won't be easy given the many complexities involved.
I agree with you 100%. My judgement of lack of resemblance is based more on whether I imagine that the same person would want to use both in the same context, not on anything that I think anyone should respect. I just don't think you can draw a line. We need to move to a model where we are openly, explicitly granting and enforcing monopolies on the production of certain works in return for some societal benefit. Not just assuming that society always benefits when monopolies on reproduction are granted.
If we don't want whales to rush in and capture all of the profits when somebody produces a creative work, we can target that situation explicitly, rather than pretending that qualifications for being worth protecting are inherent in the work, rather than a legal construct. A pretension that creates a situation where a defense of the series of disposable Warhols can be to denigrate the photograph that they chose to base the series on. Judges and juries as art critics, trying to figure out how much of Blurred Lines is Marvin Gaye.
Yeah, right. See my reply to Worldblender, it's my more detailed and pessimistic take on things.
That said, even these two issues aren't going to be easy to change at first, especially with big companies and some pre-existing laws like from the Berne Convention in 1909 (!) that have to be dealt with as well. All things that I definitely cannot change just by myself; at least we need more people onboard with copyright law reforms like what I said before any meaningful change is expected.
I agree with you completely but by far the biggest challenge is to get changes to international copyright/IP law and that's proved (and is still proving to be) extremely difficult to achieve. The only significant changes to the Berne Convention† in over a century have been to tighten copyright provisions. The trouble is that getting changes to international agreements, especially long-entrenched ones such as copyright treaties, is about the most difficult of any law to change. Essentially, such treaties are set in stone because so many countries are signatories to them, and experience has demonstrated that copyright/IP law has powerful backers in almost every signatory country.
Even if, say, one country wanted to make significant changes to its copyright law then the treaty binds it and thus it's unable to do so. Moreover, any said country cannot simply walk away if it disagrees with the treaty as it'd be deemed a pariah and would be subject to sanctions. A country withdrawing from a treaty puts it in a very different situation to that in which it would have had been in had it never signed the treaty in the first instance.
An example of this is North Korea's withdrawal from the NPT (Non-Proliferation Treaty) which it signed in 1985. It's now a pariah and subject to huge sanctions since its withdrawal. India and Pakistan both of whom never signed the NPT are not in the same dire situation (they're criticized for not joining the NPT but that's all that's ever happened to them). If any country withdrew unilaterally from IP treaties then it'd receive the same treatment as North Korea. And to make matters worse, I'm sure that just about every country on the planet is already a signatory to the treaty.
I've been watching the copyright debate for well over several decades now and I've seen negligible beneficial change to copyright law, if anything the situation is now significantly worse than it was 20-plus years ago before the US Digital Millennium Copyright Act. Frankly, I'm quite depressed about it, copyright holders have such a hold over the treaty, WIPO etc. that I don't expect to see any truly beneficial changes to IP law within my remaining lifetime.
The rot set in very early on with the first and second copyright conventions starting around 1883 at the beginning of the lead up to the first Berne Convention of 1886 and then the Paris Convention of 1896. Victor Hugo and cronies were in the forefront lobbying for such a convention, and at the time, as now, the public had essentially no interest in copyright (back then, most people would never have heard of copyright let alone ever having bothered to get a delegate to lobby on their behalf. With essentially no opposition Hugo et al got away with carte blanche, that is they got the treaty exactly as they wanted it to be. Right, the treaty was a damn disaster even more so given that it had such a huge running start without any significant opposition—as we've seen, catching up has proved impossible (I keep wishing someone would prove me wrong but to date there's never been a hit of evidence to that effect).
Several years ago Cory Doctorow succinctly summed up problem with words to the effect that the average person is simply not interested in copyright law—full stop! Even if people have heard of copyright and or know about it, it still takes a very low priority in their lives when compared to other matters that they're concerned about such as the economy, price of fuel, housing etc., etc. Therefore, politicians aren't interested in doing anything about it, after all they're not going to lose votes over the issue from the citizenry, and more likely copyright advocates will gain their favor by supporting politicians' campaign funds etc.
The only way I see forward is for a well-organized international organization along the lines of, say, the EFF but one that's much larger and more powerful to take up the cudgel and run with it. I first started raising this suggestion online well over a decade ago but I've yet to see the slightest evidence that anyone's interested.
__
† Don't you mean the 1886 Berne Convention? I'm unaware there was one in 1909, but the Paris Convention was in 1896 and the one after that was the Berlin Convention, which if I recall correctly, was in 1910.
To be clear, I'm not touching on legal or economic arguments about payment, rights, control or attribution. These may or may not address the many injustices facing creative people.
In the deeper spiritual conversation about ownership and acts of thought, is the spectre of fear; that one has passed one's creative peak. That you'll never make anything as good as that again. From that fear comes the rejection of creativity as an inexhaustible living process, and the urge to commodify, to cast the past in stone and build a fence around it.
This case, which is more formally about 'derivative works', is about stopping an art-form from living.
For me the antidote to that whole control pathology lies in Kahlil Gibran's "On Children": You are the bows from which your children (creations) as living arrows are sent forth. Real creators have the courage to let go.
It's about where the bar is. Most people agree copying someone's else novel and selling it is wrong. Copying parts of it that went into popular culture? Making variations on some characters? Those are more interesting. We just need to find some reasonable rules to balance various incentives.
Why?
Please read me carefully: I am not accusing you of resentment.
But I already excluded issues of finance and recognition in my conditions above.
So, other than spitefulness and resentment, what else might possess us to declare that if "anyone is free to copy and fully use" some work, then it's not worth doing?
Do you not feel the incredible plenitude and abundance of creativity that urges you toward generosity?
Is capitalism responsible for somehow poisoning us with the idea that scarcity is necessary for valuable endeavour?
Finance is pretty important though, if you want to feed and shelter yourself and your family. Most other types of work cannot be made worthless by others seeing it and copying it.
But the work of researching and thinking and producing a solution can, so the government figured there should be a way to recoup costs and provide incentive.
I want to live in a world where people who do awesome work are awesomely rewarded for it.
I don't get what you're about with the scarcity argument. Everyone is free to write a novel or create software or whatever. I just want people who do the work to be in position to profit from it not someone who didn't do the work
Yes, money is important. Now, can you forget that? Put it aside and try to move on to a higher level of thought?
("No" is a perfectly acceptable answer that would satisfy my genuine curiosity)
People dislike copying because for most people it's an attack on their income, either by taking their recognition (eg copying "free" images from a photographer) or by actually taking their income (eg copying paid art).
If you exclude financial arguments you exclude the vast majority of people who share their work.
To bring this around to code, most popular licenses allow copying someone's code with proper attribution, so clearly copying is okay as long as you don't take recognition from a work that isn't profit motivated.
It seems pretty obvious to most people, that some artists would be unable to produce certain works of art, if they did not have the funding to pay their bills.
Why are you unable to understand this? Just engage with the argument.
No.
Because it is not an agument, it's a diversion, and an attempt to drag a much more complex and interesting debate into the long grass.
> It seems pretty obvious to most people, that some artists would be unable to produce certain works of art, if they did not have the funding to pay their bills.
You're correct. It is obvious. Indeed it's so boringly self-evident it precludes discussion. It's dull, maudlin, perennial and a pointless spiral down into lamentation of broken political and social systems that are utterly beneath the level at which I wish to engage.
Are you familiar with the expression "Never argue with an idiot because they'll drag you down to their level and beat you with experience"? That.
> Why are you unable to understand this?
I understand it perfectly. I'm just not interested in it.
> Just engage with the argument.
Your entitled indignation that I refuse to be dragged into the mud amuses me.
So then yes, you agree with everyone else completely, that many artists would be unable to produce certain art, if they were unable to make a living from it.
Great, you agree with everyone else entirely. Not sure why you would be so upset with everyone if you simply agree with everyone's main point, 100%.
> that I refuse to be dragged
You don't have to be dragged anywhere if you simply agree with the point, that you called obvious, which is that many artists could not produce work if they could not live off of it.
This doesn't have to be an argument. You just agree with them, and you called it obvious.
Our difference is that "artists" are driven by complex psychological and spiritual motives, way beyond money, which is a necessary but insufficient component of the artistic life. Some commenters don't like it when I say you're an accomplished craftsman but not a "real" artist if your preoccupation is with money. I can understand why that hurts, especially if one is besieged by brutal, empty capitalism and looming AI predating on your soul.
But I stand by this. And most of Art-history and the philosophy of art bears me out. And my point is that the artist who sacrifices (prostitutes) themselves on that altar of anomie and alienation is an accomplice in their misery - however strong the need to "put bread on the table". We are more than this.
So yes, you agree and think the point is obvious.
And now you are just moving the goal posts to something else, using a lot of words, in order to ignore the fact that you just agreed and said it was obvious.
To the downvoter, please do some free contract work for me. It causes you no loss.
If I create something that people are willing to keep buying for decades without any more work on my part, then I have a nice source of recurring, passive income that I am very motivated to defend by stopping anyone else from profiting off of it. I am also a human being who needs to do things like take a break from working now and then so I don’t burn out. And explore new avenues of expression without worrying about spending a while making stuff that’s not good enough to get paid for. And work on big, weird projects. Having something that keeps selling without me putting in any work is great for all of those things.
The fundamental toxicity here is that we live in a capitalist hellscape, not that artists would like to use their skills to get by in said hellscape.
I don't mind money for scientists, but the problems are wannabe morons that try to prove the Earth is flat.
You can continue the list...
The hard problem is a better method for resource allocation.
The monarchist hellscape is pretty much equivalent to the capitalist hellscape, except you are trying to seek patronage from the public rather than a single entity. The capitalist hellscape is a hellscape because disposable income is disappearing from the middle class.
If you seriously think that the deepest spiritual questions of why we create are "a bunch of wankery" then you are no artist. A producer of things, maybe. A very successful producer of wonderful, beautiful and desirable things perhaps.
But not an artist.
Wanker.
I am, as I said, a working artist. I have done multiple solo projects that spanned one or more years, each more ambitious than the last. I have cover quotes from four people with something like seven Hugos between them on my last graphic novel.
I am now returning to a project that I put down for a couple of years because it got to a point where the polish it needed was not compatible with the ways my income is structured. I recently had a boring corporate art gig work out really well so I get to spend at least a few months not worrying about where my rent is coming from, and I’m stopping less ambitious projects that were easier to crank out at high speed in favor of this crazy thing. They were also ones that felt more likely to be popular. The serious big projects? I care that they please me, first and foremost; I do them because I have something I need to say through the medium of words and pictures,
I do not worry that I have peaked. I worry about paying my fucking bills in a world that’s increasingly more hostile to making a living as an artist. I worry about every social site wanting to hide posts that link to my site because these corporate hellsites are optimized to keep people scrolling past interchangeable “content” that fills the space between ads.
When I finish this project, I am confident that my next project will build on the lessons I learnt doing this one, as it built on what I learnt in my previous major workings. Perhaps it will be even more ambitious. Perhaps it will be deliberately much less ambitious, so I can kick back and have some fun without pushing myself to new heights for a while. I’ll still keep getting better, every time you draw something you get a tiny bit better at drawing that thing, and it doesn’t go away unless you suffer major brain damage. Hell, even that isn’t necessarily an obstacle - there’s a story about one Warner Brothers animator in the forties who had a bad concussion in a car accident, and found that his abilities had taken a major leap forwards once he was healed up and ready to get back to work. Lose my drawing arm? I’ve seen friends shift off their dominant hand due to injury, and go from uncoordinated wobbly messes to just as good as before in a month or two of breaking out the drills they used back in art school. Eventually there is a point where my whole body will start to break down. That is when I expect to peak: when I am physically incapable of manipulating tools and seeing my canvas.
But sure, I’m “not ready” and there’s “more to the world”. And worrying about intellectual property has nothing to do with wanting to be able to make a living. And I’m not really “an artist”.
But you’re still a pretentious wanker.
If you hadn't been so vulgar this could have turned into a really interesting conversation about capacity, maturity, self-development, ... all the things I wanted to talk about that aren't the dull, common rubble of how shit life is under late capitalism. It's shit. We get it. The only important question is what you're going to do about it. But if you only see threats (pretentious wankers) everywhere, those options are going to be quite limited.
And I'm not hurt by what you say. I'm British and a writer. Of course I'm a pretentious wanker and I'm pleased you're smart enough to see it.
Theft is the act of taking something from someone, if you copy something you by definition have not taken it, you copied it.
The original is still there, intact.
Taxation is closer to theft than copyright infringement is.
They may have the legal authority to control it, and may have the legal authority to use government guns to prevent unauthorized copying, but they do not have the moral or ethical right.
You must reject natural rights in favor of "who ever have the most guns has the right" method to definition of rights
Theft is a morally defensible issue because it deprives another.
Copyright is morally indefensible: There is no deprivation. It is only about controlling others.
Is copyright still doing that, or is it creating cartels, being used to tell you what you can see and hear, encouraging patenting obvious things for a "landgrab", and supporting companies who don't really add anything to society other than file lawsuits when they think they can get a payout?
For some industries that need a lot of upfront R&D and investment and can be well articulated, copyright/intellectual property should be able to be used to protect that investment, but we went very wrong with the current maximalism with copyright terms being 100+ years for songs that might take less than 1 hour to make, and where things like business processes and "X but with a computer" can get patented.
While U.S. copyright is established by the Constitution, does this mean it's in the same category as "inalienable"? Something worthy of more research on my end to be sure.
Something doesn't sit right with me when the same legal system supports these two different scenarios:
1) I find land or buy land and occupy it indefinitely as my property with exclusive use rights
2) I create something new using my creativity and have little to no rights over its exclusive or non-exclusive use
Why would I not control something I create when practically most other ownership rights are based on a first-come-first-served basis? Clearly if I created something, I came to it first.
The concept of Inalienable or natural rights stems from the Philosophy of Self Ownership
If you deny the existence or objectivity of natural rights, then you also deny the concept of "self" and that humans are self aware actors that objectively own their own bodies.
that is a very dangerous thing to deny
How is it another question? It's the exact same question. It would be interesting to take "orange prince", change the background color to green and print it on mugs & fridge magnets, and see what happens.
Because Andy Warhol has been dead for 35 years, while Lynn Goldsmith is very much alive.
We know what she would do - since she’s done it - but whether he himself would make the same choice is, as the author says, another question that we have no way to answer.
Unless Andy Warhol’s genetically sequenced AI brain is actively making decisions for his estate, I’m not sure this is relevant to the question of what Andy Warhol himself would’ve done.
The author of this piece is essentially saying "we don't know what Andy Warhol would've done if the roles were reversed," which is unassailably true since he was dead for over 30 years before this lawsuit was filed and, to my knowledge, never initiated any similar lawsuits of his own during his life.
Regardless of which party moved first, neither party is Andy Warhol and so the original question remains impossible to answer.
Also seems like a pretty poor piece if that's the point and they don't investigate or mention any history, like the Elaine Sturtevant stuff.
Warhol’s work is barely transformative to me, as in was there tracing paper involved? Or basically the same concept? That’s not transformative that’s derivative. That term applies and it’s not fair use as derivative. These two concepts are rather clear and those who would argue it’s transformative (probably Masnik who is a quack when it comes to fair use) instead of derivative (correct term) are wrong.
Just like Masnik and Pharrell who chicken little’d the Blurred Lines ruling that it would kill creativity in music! Huh, how about that? Old Town Road paid for its samples and was a smash hit. So, yeah, welcome to a re-run of some tired absolutist arguments that fall apart.
IANAL but note that covering a song is not fair use. However, with music specifically, it is (normally/always?) possible to pay for a mechanical license [1] which allows a musician to pay to cover a song. The same concept does not apply to many other types of creative works. For example, a playwright can (and many do) refuse to allow their work to be performed by amateur theater companies or to have the content modified.
Just playing off some well-known characters or some defining characteristic of a work doesn't necessarily constitute fair use although judges seem to often disagree on the particulars.
It allows you to perform a work yourself (privately) to create a new audio recording of that work[1]. What is known as a "cover". But other than sell the new cover audio as CD, mp3, etc, or have it get played on the radio or audio streaming services, there is not much more you can do.
It does not allow your cover band to perform the work publicly. (Normally this gets covered by the venue, either via ASCPA/BMI licensing, or via individual negotiation with the rights-holder, but in some cases, like temporary venue fully orgnaized by the band, the band may need to acquire such rights.) Remember that any form of live-streaming is also public performance.
It does not allow your cover band to create a music video, or to use your cover recording as background music in a video you create. (For either of these you need a "synchronization license" that the work holder can simply refuse, and there is no simplified ASCAP-like mechanism for handling these negotiations)
It may also surprise many to learn that recording artists are not technically entitled to royalties for use of their songs over the radio. Indeed, recording artists of any kind[2] only get royalties for digital music transmission when certain exemptions don't apply, and get no protection at all for non-digital transmission.[3]
The whole music copyright system is basically a giant mess, and does not work how a reasonable person would expect it to work.
Footnotes:
[1] Or to duplicate an existing audio recording if you also have permission of owner of the copyright for that particular audio recording.
[2] unless they happen to be the musical work copyright holder as well, which is not uncommon, but hardly universal.
[3] Realistically they were only granted this digital public performance right, because a digital transmission of a digitally recorded phonorecord is hard to distinguish from copying said phonorecord.
Pedantic, but the law is pedantic: fair use works are inherently derivative of the work they're based off of. Fair use is just an exception to the 'must get permission' requirement of creating a derivative work.
> Fair Use must pass the four factor test
but that doesn't make it "not a derivative work".
To make a derivative work, you need permission from the copyright holder.
However, 17 U.S.C 107 states that " the fair use of a copyrighted work... for purposes such as (purposes)...is not an infringement of copyright".
All it does is change what constitutes copyright infringement, it doesn't change the meaning of "derivative work" as defined in 17 U.S.C 101.
Sure she'd probably still own a camera as a hobby, but would she have taken weeks to follow touring bands?
To me, the Warhol images are substantially different - the only common element is Prince's features, and presumably that likeness belongs to Prince, not the photographer.
Consider that the photographer isn't the owner of the likeness, and that everything besides the likeness is different, I'd call the Warhol image a substantially different work from the photographer's image.
If the ruling comes down on the side of the photographer there's definitely a chilling effect on the creation of new art.
Other than the likeness (which belongs to Prince), there are no similarities between the images.
Since there are no similarities other than the likeness, I find it hard to sympathise with the photographer's point of view.
The difference between the two images is substantial, to me.
As a thought experiment, if this was a painting of a disembodied Eiffel tower, would you say that the photographer of an Eiffel tower photo was ripped off?
The subject of the image clearly does not belong to the photographer, all the elements in the photo that do were omitted from the painting.
To counter your thought experiment and your assertion that "...there are no similarities other than the likeness", try super-imposing the images. The framing is identical. See https://ibb.co/wyMdvvd, posted elsewhere in this thread.
I would not say “That’s clearly a pose, framing and likeness done by Goldsmith“. The source photo for the work was just another photo of Prince.
To me that is fair use
That's not a claim anyone is making.
Sounds pretty dismissive of the original photo's value to me...
I agree that it isn't that simple. If it were, it would have been settled decades ago.
> The framing is identical.
Firstly, that isn't what framing means (https://en.wikipedia.org/wiki/Framing_(visual_arts)), and in this case the framing isn't the same, it's radically different.
Secondly, assuming it were, then what?
There are maybe 25 or so elements of a photo that make a photo unique (framing, composition, lighting, color, grain, etc).
Arguing that because one of them (framing) is matched in a painting means that the entire painting needs to license the original doesn't make any sense to me.
The only similarity is that the subject is copied very closely, but that element of the photo doesn't belong to the photographer anyway.
The only identical bits between the two images is the single thing that isn't owned by either party.
When it comes to courts examining copyright infringement (which this would be), they tend to do so very objectively: Each element is examined in isolation, and if there are many identical elements, only then does it make sense to examine the image as a whole.
In this case, when it finally gets to trial (if it already hasn't done so), the defense lawyer is going to systematically go through every single element that makes up a photo, and compare that element (hue, for example) to the alleged infringement.
The other party is going to stick to the argument that the article presented, namely that it was used as a basis for the painting.
The linked definition is exactly what I'm talking about. The framing alone is copied. A lack of foreground/background doesn't mean there is no framing. Also the composition and lighting are copied.
> "The only similarity is that the subject is copied very closely, but that element of the photo doesn't belong to the photographer anyway."
The way the subject is framed, composed and lit belongs to the photographer. It is long established in copyright law, which covers fair use, that the photographer has first copyright on any image they make. If you were to design a new widget and paid a photographer to take promotional images, the image rights belong to the photographer. In much the same way, if you have your portrait taken, whether it was commissioned directly, or by a third party, the image rights belong to the photographer.
Claiming that that the only similarity is "Prince" is not looking at the image. The details, such as the specific curls in the hair to the way the shadow falls on the neck are copied directly from the image. So much so that claiming 'fair use' is a stretch, which could have been so easily avoided had the artist, in this case Andrew Warhola Jr., asked Lynn Goldsmith for permission.
It is clear to anyone that actually looks at the painting that it is entirely derivative of the original photo. If you'll excuse the pun, it's black and white.
https://kimstenbergart.blogspot.com/2014/08/eiffel-tower-sky...
https://www.architecturaldigest.com/story/paris-eiffel-tower...
Here's two identical poses of the Eiffel tower, with no one crying foul. Using exact poses for a subject is obviously well-accepted when the subject isn't Prince.
I'm finding it hard to believe that in this case we should make an exception.
Fortunately there's a solution for mavericks like me: Creative Commons licenses[1]. While they don't change the fundamentals of copyright, they do offer us the chance to practice what we preach[2].
None of this touches the doctrine of Fair Use, of course. I like Fair Use - as long as the person/organisation claiming it remembers to cite the original work ... something I doubt Mr Warhol bothered to do.
I don't care for myself. My writing translates into money through other paths. But there are a fair number of people for whom writing is their primary income source and it's not a huge one as it is.
The two images don't compete in the same market, but that's not relevant for copyright. I think it perhaps should be, but as it stands, the law shouldn't be interpreted like this.
Imagine another type of copyrighted work, such as open source software, being reproduced against the terms of its license but with all names (variables etc.) changed, perhaps translated into another language or capitalised. The style of the work has definitely been changed, much like Warhol's style is very different from a photograph, but the product is very much a derivative that should be used in the terms set forth by the original author.
Also consider the effect this would have on the internet: if Google/Facebook/Bytedance were to be allowed to just scrape images online and sell them as their own after applying a black-and-white filter, any photographer would probably be up in arms.
That is actually extremely relevant for Fair Use though.[1]
Note Factor 4: The Effect of the Use on the Potential Market for or Value of the Work
I actually think a ruling in favor of the photographer will favor creation of new art, because artists will have stronger protections. Warhol could have just taken his own photograph and there wouldn't be any argument to be made.
Depends on if Prince signed off on a model release.
https://www.latimes.com/opinion/story/2022-09-29/andy-warhol...
Very similar, and more unfortunate for fairey than tfa. He is a graffiti artist, so there is that in regards to illegal art. I've seen him speak to Warhol's archetype before, and he resented the copycat nature of it pretty clearly. I think that is a bit ironic.
2) 40 years ago, I dated the daughter of a major art collector; he owned the entire collections of a few major artists. He commissioned Warhol do to a Jean Cocteau portrait. Girlfriend's dad expresses anger one day, as Warhol is weeks late on his commission. He takes he daughter with him to Warhol's studio to complain, and upon return expresses utter disgust with Warhol and his process. He returned with the portrait, Warhol made it in 15 minutes upon Dad's arrival and complaint, seemingly with zero forethought. A Cocteau series followed, but GF's Dad was completely uninterested in Warhol after that point, calling him "an advertiser".
IMO, Warhol's fame and artistic perspective is exactly like P.T. Barnum, Warhol simply proved “There's a sucker born every minute” is also true for serious fine art. And that transference of suckers existing in the world of Fine Art, transforming their "foolish art" into "Fine Art" is Warhol's Art.
https://en.m.wikipedia.org/wiki/Barack_Obama_%22Hope%22_post...
I think the take away here is you draw someone famous move the hair, rotate the head so the source can’t be determined. If the source can be figured out it’s probably too close.
See, http://copyrightblog.kluweriplaw.com/2022/05/09/andy-warhol-...
After Prince's death, Vanity Fair Magazine purchased an image rights license to run the Warhol painting on it's cover.
The original photograph was, at the time, also available for license.
Goldsmith argued that Warhol's work was commercially competing with their original photograph.
Note that the context was not space on gallery walls but the cover of a magazine, and there was not a question of whether the cover of magazine constitutes fair use...I mean the Warhol foundation would almost certainly have sued if Vanity Fair had used the Warhol image without a license.
To put it another way, the case is not about Fair Use directly, but about competing image rights. I mean, since nobody is going to confuse a magazine cover with an original Warhol, for the Warhol Foundation's fair use claim to stand, then Vanity Fair's cover would be sufficiently transformative to constitute fair use.
Not that there'd be anything wrong with that. Warhol's been dead 25 years. Seems like enough time for the works to be in the public domain, to me. YMMV.
[1]: The Atlantic seems to have given up on journalism in recent years...Jobs bought it in 2017.
My understanding is that lowering the value of the original work is an argument against a particular use being fair use.
Which is to say that Fair Use is not intended to further commercial competition.
And that the purpose of copyright is to forestall commercial competition.
Of course I could be wrong.
Both Warhol’s works and Vanity Fair can be seen as celebrations of, well, celebrity vanity.
What I’m getting at is that it seems Vanity Fair chose the Warhol for the cover because it means something very different than the original photograph and that Warhol’s baggage could easily be what the editors needed for the intended effect.
I’m not arguing that Vanity Fair’s image choice wasn’t a better way to convey the intended mood of the moment.
The painting is fair use.
The magazine cover isn’t the painting.
It's a separate work from Kind of Blue only to the extent that a different mix or running the tracks through a distortion pedal would be.
This proposition has barely a hint of truth in it. Especially considering how clever lawyers, SCOTUS justices included, can be in distinguishing one case from the next.
I’d hardly be worried.
The point is it is hypocritical to screw the model or human inspiration of the art, or owner of an animal or plant or object that is the inspiration, for the benefit of the art and whomever happens to own it. If you paint me and the painting sells for millions, or write a journalistic piece about me and millions of copies are sold, I want a piece of that, and I think I'm entitled to it, but more so, I want to use my copyrights to my likeness and name as legal deterrent to protect my privacy and prevent bad (or good) press.
Don't look at me, because you're necessarily reproducing my likeness upside-down twice in both your eyes and in your brain, and if you do look at me, you owe me fair compensation, because once seen I cannot be unseen. And stop reading my comment, because it belongs to me. Don't even think about quoting me without permission under threat of litigation.
But that actress probably wants to be on that Vanity Fair cover shoot. And people who are famous in general for things other than modeling also generally want to get their photo taken by well-known photographers.
People do have rights to their images being used in marketing and advertising materials. I can't take a photo of you on the street and put it in an ad without your permission. But, no, you don't generally have rights related to me taking your photo in public and making a poster of it or otherwise publishing it. (In the US.)
There's not many signed and professional fashion models, about 3600 in the US, 112K globally. The top 10% earning models average over half a million a year, and a tiny handful make millions. In general, fashion models make about $70-$100/hour, but few, if any, can work full-time hours.
But that isn't what I meant. The most expensive photograph in the world is currently "Le Violon d'Ingres," created by Man Ray in 1924. It was sold in May 2022 by Christie's of New York for $12.4M. It is very likely that the model, Alice Prin, wasn't compensated since she was in a relationship with Man Ray and living with him when it and many other portraits of her were created. Whomever Prin's living descendants or relatives are, as executors of her estate, should have a right to sue the Man Ray Trust or whomever sold the photograph or Christie's, and likely all of them, for a portion of that sale.
Does anyone the think the Associated Press gave Phan Thi Kim Phuc (Napalm Girl) any compensation for the amount of revenue and profit generated by the photograph, "The Terror of War?"
At some high level, actors are no longer just paid a base amount, but are entitled to percentages of total profits of ticket sales and even sometimes a percentage of the post-release video market. That seems fair. I've never heard of a model getting a percentage of the revenue of a photographic piece.
Programmers and software engineers, by and large, are in the same situation as fashion models. They sell their time and, without compensation, give away any copyright to their work. I, for one, think they should get a piece of the total profit.
And if we apply that to programmers. Should the person who assembled or packed the computer developer did his work on get part of the revenue developer makes by using this machine? Or with phones from revenue generated by made phone calls?
If they invented the tool, they can have a patent.
Individuals are not tools, and I don't see how the tool acquires copyright. Models own the copyright of their likeness, and technically, coders own the copyright to their code, right up until they give it away for wages already compensating their time, using the same coin to pay for two different things of value. Granted, a lot of portions of code are copied, but any novel code written should be copyrightable.
If there was any money to be made in distributing a recorded phone call, then the participants should be compensated out of the total profits.
This isn't entirely correct.
They have personal rights, publicity rights, and moral rights... but they do not have copyright. The copyright is retained by the person who took the photograph or painted the portrait.
Most recently, I'll point you to https://www.rangefinderonline.com/news-features/industry-new...
> It’s happened yet again: another copyright infringement lawsuit involving a celebrity posting an image of themselves without permission from the photographer. This time it’s Miley Cyrus who is in the hot seat, for sharing an image of herself on Instagram without licensing it.
I'd also suggest giving https://entertainmentlawyermiami.com/model-rights-and-photog... and https://www.modelsadvocate.com/basic-copyright-law.html a read
what's missing is a right to get a share of the profits. a shared copyright could help with that.
There is an argument that you might work to look a certain way (clothes, makeup etc.) for some professional reason, but then do it on a private property if you want to stop people from photographing you. Otherwise you're just grabbing public space for yourself unilaterally. Note that I made a similar critique of modern copyright in a recent thread, so I'm not really advocating for privileging artists over the objects of art.
I don't see how people could expect lifetime payouts when other people copy a photograph, but everybody has blind spots in their ability to empathize and understand other people's positions.
Alternatively, HN could include both the author's title and the "HN title" in its HTML but only display the HN title.
When I extract URLs from HN HTML I tend to ignore the titles and this is one reason why.^1 I am interested in objective identifiers. HN can change the title, but it cannot change the URL.
Someone searching HN by title for an article from a particular publication may not be able to find it as easily as they should. Similarly, someone browsing all submissions from a particular source, looking for a particular title may miss it because the original title has been editorialised.
1. When I retrieve www search results into a custom SERP format, I actually drop everything except the URL. I never see "objectionable" titles.
Even as a fan of modern art Andy Warhol has always left me cold. Nothing he did seemed original or said anything.
To me seeking permission to use someone else's work is just good manners, regardless of money. That is the point.
Thing is, Warhol's entire output is based on copying; not having obtained permission is a large part of the point. I'm no art critic - I'm a phillistine - but I think one way of interpreting his work is as a commentary on copying.
Madness.
But there are plenty of instances where clearly established precedents nevertheless require lawsuits for their enforcement.
Fair use? I think yes. Was Andy Warhol an overrated hack? I think also yes.
I would probably only hang it on my own wall or sell 25 copies in a cheap zine but I’m terrified someone will sue me. So, I don’t create art that I envision. Maybe the world is better for it; maybe it’s worse.
One of my recent art projects was to create a series of images in the CGA palette of the 1980’s but using images of modern technology. It would probably end up very similar to this example. I’ve spent tens of hours trying to perfect the look I wanted but I abandoned the idea because capturing my own images is impossible in some cases that I can imagine.
So I must assume that the side wanting to restrict fair use further will win.
> The English version, like a lot of English beer, is older but not necessarily better.
That's unkind. English sterilized bottled or tinned beer isn't "older" than the US equivalent. English cask-conditioned beer is a fresh product, usually made no more than a few days before it's pulled.
Legally, I expect Warhol to lose, but if he does it'll be because the law is wrong. We absolutely should be allowed to remix one or more existing artistic works into new works, and artists shouldn't be burdened with having to obtain permission to create them (although it's still polite to ask, we shouldn't expect art or artists to always be polite).
Hopefully the enforcement of copyright law, the chilling effects it has on artists, and the negative impact that it has on the richness and accessibility of our culture, will eventually encourage people to push for reformation of copyright law to bring it more in line with what it was originally intended to do.
now, i think that an argument can be made that remixes should be allowed to enable that one third of good remixes, and that the good always comes with the bad, and i agree. but i fear many don't, and would rather limit remixing in order to protect original works.
I suspect it would be a lot more popular if people didn't risk getting dragged into a courtroom for doing it.
> freely allowing remixing will only increase the ratio of junk vs good art.
Remixing has the ability to take bad art and make it better. Most of everything is garbage, but fortunately nobody is forced to be exposed to it all either. People who don't want to spend their time looking outside of narrowly curated selections of available content or what's already gained popularity never have to. All art is built off of previous works, and even if someone creates a work that you hate, someone else may by inspired by that work to make something you love. It doesn't make sense to want to prevent the creation of new creative works out of fear that they might not be "good" in your opinion.
Even if, somehow, it did make sense to hinder the creation of new creative works copyright would not be the tool for the job. Copyright already has a job. Copyright is supposed to encourage the creation of new creative works. Sadly it is currently being used to suppress art and artists, which is why it is broken and needs to be reformed.
There are some people who want copyright to be as restrictive as possible. Very wealthy and powerful industries for example. They've spent a lot of time and money to try to convince us that copyright should be as restrictive and long lasting as possible, but that's entirely for their benefit and not ours. It's bad for art, it's bad for artists, and it's bad for the public as a whole. They've convinced us to muzzle each other and lock up our own culture so they can increase their profits. The longer it takes us to fix that, the more great art we lose.
Well, talking about the popularity of doing remixes.. A game developer and artist in japan allowed a free-for-all on his IPs, basically people can do whatever they want to do whether it's remix his games soundtracks, make games inspired by his or write stories about his games and the amount of content generated is just staggering. Over 100 000 songs have been released in physical CD format in official Japanese conventions, and many more not counted in other countries or in digital-only forms. In the case of music, there's covers/remixes/more creative interpretations done in pretty much any genre imaginable. Here's some I've enjoyed:
https://open.spotify.com/track/7v25NVhjRtabtyZd1VOgKF?si=3f3... https://open.spotify.com/track/06MpdON26igXU9RypVjVda?si=e7a... https://open.spotify.com/track/6p3kue2ZdtVBH5QAFEOmaC?si=3d8... https://open.spotify.com/track/2WLFemt8pvSfekUBC5duXy?si=c97... https://open.spotify.com/track/38uLH7V5AVzHvZ0uc07ZtR?si=c40... https://open.spotify.com/track/73MhkPNN5Txn5oELXa4G6A?si=3b7...
Which by the way also follows your point :
>Remixing has the ability to take bad art and make it better
Although I wouldn't call the original touhou soundtracks 'bad art', they are flawed creations: Zun is good at creating catchy melodies and overall composition, but the quality of the instrumentation is poor (mostly Roland SC-88 and Edirol SD90 presets, not the most musical of sample based synthesizers IMHO. Of the early sample technology, the mt-32 and D50 are more interesting than the sound canvas series) and the fans have taken something that had potential and turned it into things that are worth listening to standalone.
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Regardless of the outcome, Warhol wins.
Art really comes down to two things: content and style.
Warhol’s style is definitely defined, it is copied all the time, and odds of a court enforcing the estate’s rights to that style are zero. Regardless of if he’s paid for it, no one will ever be able to take that from him — not even the American Supreme Court.
The photograph referenced in the case is not an original work of art. Photographer happened to get access to a celebrity and took a photograph that if combined with 1000s of other photographs by photographers on the same day of the same celebrity would not be distinctive — it literally deserves no protection.
Warhol, if alive, regardless of the outcome in court would have produced even more meaningful art based on the experience, which would have enriched the world.
The litigant in this case, unless case is thrown out has literally contributed nothing, deserves nothing — and if America rules in their favor, that is exactly what Americans deserve too. The litigant, if remembered, will not be remembered as an artist, but as the troll they are.
Opinion: bout the photo and the painting are actually not very good representation of either artists work. I imagine both the photo and the painting would be considered unimportant if it wasn’t for this legal wrangling.
There are many ways that this issue could be approached. For example, could Warhol be allowed fair use in execution but, post-mortem, his estate pay? After all, one thing that the author of the article did not go into is that this argument is really no longer about the creative act.
If you see it so clearly, it's because you're uninformed about or otherwise disrespectful to the actual social norms/rules at play.