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Comment by reaperman | Hacker News Reader

The Warhol was previously presumed to be “transformative” work due to Warhol’s reality distortion field. I’m not trying to be facetious, warhol’s “Campbell soup” genuinely transformed the imagery/iconography of a Campbell’s soup can for his generation. And “transformative” makes it not infringement, legally.

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

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The soup can was not used by Warhol to sell soup. The Prince art was being used in an article about Prince. And that point was a major part of the Supreme Court decision.

Fascinating distinction.

This is the big distinction. The "transformation" of the soup can is just one of the four factors in the fair use analysis, and I might argue one that weighs against Warhol compared to Campbell's own marketing material.

Interestingly it was used by Campbell's (not Warhol as you said) to sell soup. It's not clear to me if they licensed it from Warhol/his estate.

That's interesting! I would have expected these things to matter for trademark law, but not for copyright.

It seems the court's argument is that using a slightly changed work for a different purpose does not present the same copyright issues as using it for the same purpose. It is one thing to use the transformed photo for a gallery painting; it is quite another to use it for license revenue from a magazine. This is at least realistic: the gallery painting does not compete with the original photographer to nearly the same degree as the licensing does.

It does however create a new problem that whether a work is infringing or not depends on the context of its use.

So if Warhol put his Prince artwork in a gallery it’s not infringing, but then if you take a photograph of that artwork in the gallery and use it in a magazine, that photograph of an artwork is magically infringing again?

It means that artworks can harbor zombie copyright claims that come back to life when you ‘hold it wrong’.

When the work of art is context itself that makes perfect sense. In „Black square“ by Malevich it was not the black square that was the artistic invention, but where he placed it at exhibition. Copyright must not prevent such uses of images, so it is perfectly normal for Warhol to transform the images the way he did. The copyright was infringed by the foundation which was supposed to preserve the works, not to alter them by licensing for the use not intended by author.

>It does however create a new problem that whether a work is infringing or not depends on the context of its use.

No it doesn't - the issue isn't whether the photograph infringes or not. Fair use is an affirmative defense.

This is a point that deserves closer attention -- thank you for mentioning it. The notion of an affirmative defense is an important part of how our legal system balances rights.

What an odd, contrived problem caused by eternal copyrights.

What has the length of copyright have to do with this? The same court case could have happened in the 80s before Warhol died.

> What has the length of copyright have to do with this?

This is 2023. None of this mess should be happening. They're both dead.

Came here to say this. Lol. Estate suing estate, hillarious.

It's not, though. The plaintiff in this case is a (living) woman who took the original photo.

She's 75 herself, and the photo is older than I am.

The original author thinks it's infringement, not some IP holding company or her descendants.

Some people think the rich should be taxed more, some people think the poor are a drain on society. Some people think the earth is flat. We regurgitate the memes that get installed in us throughout life based on our experiences and the larger cultural zeitgeist.

The copyright landscape looked a lot different in the 1950's when the author probably formed much of their world view. It was also updated throughout her life to reflect the will of large corporations and institutional copyright owners. There were no computers, no digital cameras, and certainly no generative AI applications.

Many of the Supreme Court justices are also a product of this era and style of thinking.

Content gets created so quickly now that the very concept of copyright seems an odd fit for the world we now find ourselves in. It's too long and too broad. People today like to remix, reference, reuse. Content is ephemeral and fleeting. It's much easier to make.

The framework society uses is mutable. It changes and evolves as we collectively want it to. Copyright is something that seems very likely to change - it seems like it needs to change. After all, we don't find ourselves adhering to the guild rules of the 1500's labor market. Why should works from the early 1900's be unavailable to us? Or even 1970, 1980?

The distinction between "old" and "dead" seems important, though.

The same issue could be presented with a copyright that is 1 year old - it has nothing to do with the age.

FWIW, the point of "transformative use" is that you are transforming the use, not that you merely applied some kind of transform to the content. In the case of Campbell Soup, the use of the resulting work does feel extremely different from the original product label design for the can of soup.

Did Campbell ever take issue with Warhol's art?

Hell no. His paintings were fantastic free marketing. Reportedly, they did consider it, but didn't go forward with it.

At first yes

You don't understand the Court's point if this is what you are saying. The soup can is a different use, for a different purpose, which is one reason why it's transformative compared to the prince photo (which is basically just the photo, used for the same exact purpose).

It's not copyright infringement, but entrenched interests that publish, rather than create, are feeling threatened.

> entrenched interests

https://images.squarespace-cdn.com/content/v1/5d08189949b8cd...

> create

https://www.highsnobiety.com/static-assets/thumbor/3K6e1WnYR...

Kruger is a class act & has my respect.

https://highxtar.com/wp-content/uploads/2017/12/Thumb_Kruger...

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