The case litigating Andy Warhol’s use of a photograph of Prince | Hacker News Reader

The case litigating Andy Warhol’s use of a photograph of Prince

nybooks.com

39 pointsAmorymeltzer20 comments

Prince himself used an image of Dave Chappelle disguised as Prince. Chappelle said this ‘That's a Prince judo move right there. … You make fun of Prince in a sketch and he'll just use you in his album cover. … What am I going to do — sue him for using a picture of me dressed up like him? … That's checkmate right there.’

Ironically though, I’d argue what Prince did here was not fair use.

https://en.m.wikipedia.org/wiki/Breakfast_Can_Wait

It wasn't fair use in the least. It was up to Dave & probably Comedy Central and the bad press would've done damage - it was a great move from a marketing standpoint. Not that commercial nature is a block for proper fair use (see: Weird Al's album sales) but other arrangements are...less clear at first sight sometimes.

> (see: Weird Al's album sales)

Unfortunately, that's a bad example, since Weird Al always gets permission from the original artists/songwriters/composers as may be the case. For example, he scrapped parodies based on Lady Gaga's songs because she (or the record company?) denied his use, although it's available online (non-commercial distribution): https://alyankovic.wordpress.com/the-gaga-saga/. Will he pass the four factors? He thinks so, but he still thinks it's a bit rude to not ask for permission.

Eventually, though, Lady Gaga herself approved that song. It was her manager that initially didn’t approve it (or at least her manager took the blame, heh).

Prince was a well known prat, but this lawsuit is about what Andy Warhol did, not Prince. Prince's involvement in this case is only being the subject of the photograph. The lawsuit is between Lynn Goldsmith and Warhol's estate. The general hypocrisy / idiocy of Prince is completely irrelevant.

I thought it was relevant and funny little anecdote

That was obvious to me at least, and I appreciate that you shared it. Thanks!

> The general hypocrisy / idiocy of Prince

Strictly speaking, Prince featuring an image of Dave Chapelle in parody of him on the cover of a single is neither hypocrisy nor idiocy. It is fundamentally one of many examples of self-parody, which is common among artists. While judgement as idiocy is highly subjective, Prince obviously put thought into what is far more accurately described as clever, but I don't see how it could in any way be hypocritical.

I personally think it's hilarious and wonderful, if I were Dave I wouldn't see any reason to sue. It's honestly a great move

A legal dispute that will test the limits of fair use - https://news.ycombinator.com/item?id=33053286 - Oct 2022 (260 comments)

Does Andy Warhol get same copyright treatment as Google code? - https://news.ycombinator.com/item?id=26919044 - April 2021 (58 comments)

https://web.archive.org/web/20221025140624/https://www.nyboo...

This still has a paywall, fyi

https://archive.ph/bNigE

I am really, really tired of a large swath of journalists and intelligent people confusing the Fair Use concept whenever these cases come up. This, Goldiblox, and Blurred Lines are all headline cases where the defense was, in short, "you'll ruin art if this one case is found against the popular artist!" and that's it. No real legal footing to defend against the assertion the case in point is not fair use. The four factor test is clear. Plain English. Many folks don't bother to read it, so I suggest looking it up yourself and seeing it in the full context of the documentation.

Warhol deserves to lose, I put the odds at 85% Warhol will lose, and I'm doing my best not to lose my sanity with so many misinformed or willfully ignorant (Mike Masnick) to argue feelings versus facts. There are many more good Fair Use cases than this one, and that should start out every discussion or essay. It gets clicks, I understand, but it's also a game of whack-a-mole for me, because it's so pervasive.

I should've re-taken the LSAT and gotten that full ride to Pepperdine to pursue IP law...oh well...passion never dies. It's still relevant to my interests as a musician and creator. There are rules, Smokey...

Did blurred lines argue fair use or did they claim they were different and just merely reminded of the Gaye song and the jury didn’t buy it?

This shouldn't even be a case about Fair Use.

Lynn Goldsmith sold the photograph, with full rights, to Vanity Fair, which then commissioned Warhol to make the Prince artwork out of it.

Then, when Vanity Fair started doing stuff with it again in 2016, Goldsmith saw a chance to cash in, and sued...not Vanity Fair, no; the Warhol foundation, which guarantees a much higher-profile case, and presumably has more money.

This should, by all sanity, be, a simple, cut and dried contract case: Did the sale of the photograph to Vanity Fair include the (transferable) right to make derivative works, or did it not?

If the Supreme Court makes a ruling that affects Fair Use on this in any way, it's 100% because they wanted an excuse to do so. They have a very easy route to ruling on much narrower grounds, or kicking the case back to the lower courts.

> This should, by all sanity, be, a simple, cut and dried contract case: Did the sale of the photograph to Vanity Fair include the (transferable) right to make derivative works, or did it not?

If it didn't, then the fair use argument and decision is important.

Do you have a source for the rights being sold? I've only been able to find evidence that it was licensed, and the status quo for copyright is most photos have one and don't transfer it automatically on sale of any particular copy.

Unless there's an ulterior motive like trying to set a precedent to solidify the position of other works on shakier legal foundations, I don't know why the Warhol Foundation wouldn't take such a clear-cut defense if they actually owned those rights.

I don't have one directly; my wife has been following this case (as she has a background in art and is getting a Museum Studies degree), and she reported this from some of the articles she read about it.

Doesn't actually contain any discussion of the warhol case for essentially all readers due to the paywall.

Here is some coverage on techdirt instead: https://www.techdirt.com/tag/andy-warhol/

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