Supreme Court rules Andy Warhol’s Prince art is copyright infringement

But removed from that transformative force, it’s clearly copyright infringement. So by 2023, things look different.

While Ed Sheeran just won (in my opinion, thankfully) his copyright lawsuit, the writers of "Blurred Lines" famously lost the lawsuit filed by Marvin Gaye's family alleging infringement of "Got to Give it Up". In my opinion, that was the wrong decision - while you can argue there are some similar beats and chord progressions, I don't see how anyone could believe that Blurred Lines isn't at least a "transformative" depiction of "Got to Give it Up" (to be clear, I think it's much more than that - the songs sound completely different to my untrained ear). Even in cases where there is no dispute, where one song legally samples another song but pays royalties, in many cases the use of the sample is completely transformative, again in my opinion, use of the original song.

So basically what I'm asking is why do judges appear to apply the "transformative" rule to visual arts but not to auditory ones.

You should have wondered, why can't your designer pal do it, if it's OK for Warhol?

The answer may have been: Warhol's process, coloring, final result, context, was way more transformative physically, and also semantically.

I think this is where we need art experts who are advising judges, it's sort of like maybe that trope where judges are making judgements about encryption and they don't understand the technology. Not assuming these judges were not art buffs, it's the SC, it's probably a very complex, refined, elaborate, and legally sound judgement...but I think they're missing some key connection to art to have gone this way.

2 dissenters thank God. Hopefully overturned in future, or further refined to protect artists and great art. I think the plaintiff here is less an artist and more a "professional paparazzi with a lighting set up".

Your designer friend didn't have to settle.

Warhol went to district court and got the undesired result.

Then went to appeals court and got the desired result.

Then went to the Supreme Court and got the undesired result.

Your designer friend could have done all that too and created the exact same case law in a complete coin toss that affects everyone for the next few decades. They didn't. The secret ingredient is money.

It's pretty easy to counter your assertion by simply saying, "I find no value in the original work but I find value in Warhol's rendition". Since the argument is that the court is supposedly defending Goldsmith's right to prosper from her works, then you cannot say that she would have benefitted unilaterally because I would not have paid her for her art, only Warhol. Personally I don't care for Warhol much and I'm using the royal I, but to say that applying a filter to an image cannot create a new work is, I think, preposterous.

Personally I don't think this case has clarified "fair use" one bit. All it does is add more confusion into the mix. So if Warhol hadn't commercialized the work, would it have been fair use? That's now an open question after reading the supreme court's majority opinion/ruling.

All this case does is demonstrate that in this specific instance 7 of 9 judges didn't obviously see how Warhol's work transformed the original source material enough to constitute a new work, or Warhol foundations' lawyers didn't make it obvious enough. And it now throws into the mix that "fair use" is not solely dependent on the idea of transforming a work, it's in fact way more complicated and so yes let's open the flood gates for a bunch of new copyright cases arguing that one artist, even though they did transform an original work, was too adjacent and not distinguished enough to constitute fair use.

I mean honestly I'm super confused how to interpret fair use now.

> But the real scandal is that copyright survives the artist. Marvin Gaye, Andy Warhol... Dead guys. So called "estates"... Insects feeding on corpses.

Agree.

Copyright should expire after 5-10 years.

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

Warhol had interesting ideas but I consider him more of an impresario than an artist; his real creativity was that of his public persona, and many of his most famous paintings seem to me to be merely decorative (multiple tinted reproductions) or imitative (Campbell's soup can, which was just Duchamp in the kitchen).

In other words, just adding new expression, meaning, or message to a work does not, in and of itself, create a transformational use.

That's a troublesome ruling (to me, at least).

> “AWF [Andy Warhol Foundation] contends that the Prince Series works are ‘transformative,’ and that the first fair use factor thus weighs in AWF’s favor, because the works convey a different meaning or message than the photograph. But the first fair use factor instead focuses on whether an allegedly infringing use has a further purpose or different character, which is a matter of degree, and the degree of difference must be weighed against other considerations, like commercialism."

It seems like there's a strong possibility that if you use any tool, but especially an automated tool, explicitly to generate work "based on Artist Name's work" and then you try to sell it for substantially the same purpose as Artist Name's original work with an explicit goal to avoid the commercial ramifications of licensing those rights from Artist Name, then the courts might not see that as fair use under this new precedent.

This is immensely important, say, if Artist Name is a writer that a studio is trying to replace while maintaining their style by asking an AI to mimic their style, or an actor where the studio wants to use an AI-generated likeness in place of paying them. And of course, this means that studios will try to get these creators to sign their rights away explicitly - which makes some of the current collective action all that much more important!

Perhaps Campbell soup shouldn't be Xerox or art either?

Most of their cases aren’t guns and abortion and corporate speech.

Its not, particularly, for an issue that isn’t tightly related to an issue that has been a strong partisan split of high salience in judicial nominations at the times they were appointed.

It's unusual if you consume a lot of news. In reality the supreme court isn't nearly as partisan as the news suggests.

AI training doesn't preserve position nor the purpose of a photograph's subject like photoshop does, it amasses a style from corpus as probabilities. Upstream it's not substantial copying of a single work, downstream it's substantial restyling into any new imagined purpose. Slam dunk.

Reality raises questions on edge cases.

The courts clarify edge cases.

In this case, the courts' clarification just happens to be on "What sort of artistic transformation is sufficient to qualify for that copyright exception?"

This essentially clarifies that pasting (adding) something on top of a copyrighted work isn't sufficient. (Notably, there are other exclusions besides transformation that a work could also qualify for)

[1] https://en.wikipedia.org/wiki/L.H.O.O.Q.

Joe Schmoe with his $8.00 SD account on Paperspace making waifu porn for Instagram won't have a legal leg to stand on, though, but then he never did.

So it is either:

Use public domain works

Use the artists work but ask for permission or pay license

Change the laws on copyright length. (how many lawyers can you pay for?)

Wait for the work to enter in the public domain (unlikely anyone will do this for any work made today)

The legitimate role of copyright is to encourage artists to allow public access to their works. Without some form of protection, a lot of work would never be available to most people because keeping it hidden will become the only protection artists have.

consider that there are amazing things, right now in human existence that will exist, but do not at this moment. money fundamentally is about resource allocation. such things are less likely to be discovered without incentive. money is part of that incentive (though not the only thing).

the problem is that copyright has become too overzealous and too long lasting. ideally imho it would be exponentially decaying in length based on use, or exponentially expensive to keep an exclusive right to. or perhaps right of first refusal around anyone who wants to use it being able to bid for the opportunity. there are many improvements that could be made, yes.

in my view copyright should be use it or lose it. I do agree with your sentiment in that many people hold copyright to things that they are not actually using.

It seems like the photographer here is pretty happy about her copyright.

I love SCI-FI thinking about a world without copyright or patent protections, to wonder what it would be like for humanity after a couple centuries. But I can't help but feel artists not getting credit for their work, would at least hurt them on the individual level.

it enforces the existence of a market of royalties dues. https://en.wikipedia.org/wiki/Royalty_payment

I agree, the digital technology changed things so much that it no longer makes any sense. but tell it you the king of the UK? (or some other country with "kqweeng")

Similar to how going viral with a new mobile game as an indie dev means you will almost immediately be cloned and pushed out by King et. al., removing copyright protections would mean that only the largest and wealthiest artists' and corporations' versions of art dominate the market. Creating something truly new and interesting would become simply a donation of that idea to the powers that be.

The main problem with copyright isn't it's existence, it's that technology has allowed the wielding of it to become too quickly and brutally applied a la youtube's automated DMCA system.

If I build a house, do I have ownership of it? Or should I allow someone to walk in, change the locks, repaint one of the rooms, and rent it out for their own profit without paying for it?

Artists create new things. That's the job.

There's a certainly a case to be made against parasitic rent-seeking which sweats existing resources for profit. But you're not going to have your "renaissance of art, science and culture" if the people working on it full-time aren't getting paid.

Mostly these arguments come down to "I want something for free so why I should pay for it?" and "I don't understand what these people do, it seems pretty replaceable and trivial, so it can't be worth anything."

It's classic management-think. It's exactly why so many jobs, including many elements of software development, are hugely undervalued, and why so many people have to work in harsh and aggressively inhumane environments.

One thing that struck me was that both sides in that debate agreed that the current copyright/patent system was not in very good shape. That's one nuance that I think can get lost in these discussions — somebody says "copyright can be good" and is met with the retort "look at how bad our system is right now" without allowing for the possibility that we could have a better system, rather than outright abolishing it.

Anyway, I think there are good points on both sides; you seem to be more on the absolutist side (fair enough), but you might enjoy watching it.

It seems to me that history is showing the opposite. It’s easier than ever, thanks to technology, to make original movies, songs, etc. But demand for specific creations is more concentrated than ever.

Of all of the types of property, copyright seems to me the least offensive. It’s not like the dirt I built my house on, which is finite, and which which I had no hand in creating. There is an infinite amount of original works, all you need to do is make your own.

There has been a recent tidal wave of "remixes" of the original work. TV shows, graphic novels, etc. My read: A lot of it is very good, very few new ideas are being created, and a lot of money is being made. It's hard to argue this counts toward anything like a "renaissance."

The fundamental argument for copyright is that creators of certain works should able to earn a living based on those ideas; it turns something abstract into "property," thus granting property rights to a class of things that wouldn't otherwise have such rights. This allows people to become professional "idea creators."

The problem to be solved with abolishing copyright, of course, is the problem of funding "idea creators." This doesn't seem to be something most opponents of copyright have solutions to.

In the case of something like Anne of Green Gables, once the "property" is no longer exclusive to someone, it is much, much, much harder to generate an income from that property. Imagine building a house, but not having control over who enters it. Same idea. Maybe people shouldn't have long-term property rights at all? Who knows? That's starting to sound like communism or something.

There's also a ton of original fiction and art for cheap, existing within the realm of copyright but outside of the "IP titans" of Disney, etc.

What more renaissance do you want? The ability to put Spiderman in even more stuff? (Shit, even this already exists!)

EDIT: downvoted, but seriously: I can spend 10 bucks a month on Spotify today and get an order of magnitude more variety and depth of non-major-label music - ON DEMAND - than I could've gotten thirty years ago for practically any amount of money.

Originally copyright and patent terms were effectively identical. Western societies allowed them to slowly diverge, like proverbial frogs being boiled. How could we undo this mistake?

- No copyright on derivative works mean I can finally make my 'fan fiction' Top Gun movie. - No copyright on actual works themselves, mean's I can be streaming Top Gun for free to the world. (only bandwidth/server costs)

Copyright terms are way too long, but who's going to spend big money on production when you potentially get to sell ONE copy before it's 'free' for someone else to distribute (sell) to the rest of the world?

It's certainly better for section 230 than an overturn, but they didn't uphold it either.

Taking this all the way to the SC to sue Warhol estate? Has to be a money play. Just, no class. I guess that's what you do when you make works that you can't sell for that much anyway, you "make up the difference" to what you think you're entitled, with a suit.

Probably she was never happy that she only got 400 for the license and Warhol got 10K for the editorial work. This is her "revenge" to "make it right."

I don't like any of this: Warhol made art but this person's using the court to prosecute about that. Ugh...just so ugly.

If anything, the fact that there was enough ambiguity that it took 35+ years for a court to decide that someone tracing a photograph was, in fact, not fair use is a good indication that it will be very hard to use current laws to stop outputs of generative AI that have been trained on copyrighted material.

Stable Diffusion starts with random noise and attempts to denoise that random information into a coherent picture. That it has in the past learned that certain types of pictures should have say something resembling a watermark is just it being incredibly dumb but ultimately no different than it learning that horses should have something resembling manes or people’s hands having something resembling fingers.

Warhols estate sold another image to the magazine and didn't pay the photographer this time. $10,000 was mentioned which might not have paid for the case's legal fees.

"The portrait of Prince was taken by Lynn Goldsmith, a successful rock photographer. In 1984, around the time Prince released “Purple Rain,” Vanity Fair hired Warhol to create a work to accompany an article titled “Purple Fame.” The magazine paid Ms. Goldsmith $400 to license the portrait as an “artist reference,” agreeing to credit her and to use it only in connection with a single issue."

When I was photo editor in College we had some big name acts we got to shoot as they had justed opened our new arena. Typically you sign away your personal rights to the photos and you get a photo pass. Aerosmith, Metalica, lenny Kravitz, James Taylor all had this. Oddly Elton John did not and I got a furious phone call from the venue that one of my staff photographers was selling prints without permission (through the paper classified as was the style in the 90s). He hadn't signed anything and they gave him a photo pass... He hadn't sold any, so after some discussion he stopped. Cell phone cameras have changed the game alot.

[1]https://www.nytimes.com/2023/05/18/us/supreme-court-warhol-c...

So it's not fair use to transform a photo of Prince for the purpose of illustrating magazine articles about Prince, where the original, untransformed photo could have illustrated the article equally well.

But presumably it would be fair use to transform a photo of Prince for the purpose of illustrating magazine articles about the history of pop art, where using the original photo would be inappropriate.

You sound like every "I have an idea guy" that wants programmers to build their app. "It's totally easy, all you have to do is just build it!!!!"

I hire photographers on a regular basis for corporate jobs and have a lot of respect for their skills. They are definitely not just “pointing and clicking.”

It’s about composing, setting the right light, arranging the scene, making your model be comfortable, capturing the right moment, and knowing the technology including processing a picture after it is made.

When they are good, it feels effortless. But it certainly isn’t.

In this, and almost every case, there is much more to it than that, especially in a controlled setting where the photographer is setting the background. Exposure, depth of field, framing, etc.