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Comment by lelanthran | Hacker News Reader

The argument is not whether it is a derivative (it clearly is), but whether it is so substantially different that fair use applies.

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.

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It's not that simple. If, like this image, the framing (or in this case, pose), disembodied or not, were identical, the answer is 'yes' the photographer was 'ripped-off'.

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.

If I look at the Warhols image I can say: “That’s clearly a Warhol image”

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 doesn't mean that there is no value in the original work. It just shows that you are ignorant of the photographers work. That's not meant to be derogatory, just a simple fact. Doesn't change that Warhol should have sought permission either.

> That doesn't mean that there is no value in the original work.

That's not a claim anyone is making.

The claim is that it’s fair use because they recognize Warhol’s style. That doesn’t seem like a good test for fair use.

> "The source photo for the work was just another photo of Prince."

Sounds pretty dismissive of the original photo's value to me...

> It's not that simple.

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.

I hate having to pull the 'appeal to authority' card, but after over 20 years in design and architecture, where writing contracts dealing with copyright is very much part of the job, I feel somewhat qualified to pass comment.

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.

> If, like this image, the framing (or in this case, pose), disembodied or not, were identical, the answer is 'yes' the photographer was 'ripped-off'.

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.

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