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Comment by dragonwriter | Hacker News Reader

> I would not argue at all that is what they did. There are remarkably few statutes about fair use specifically and as a doctrine it is a loose patchwork of precedence and principles.

Its worth noting that the reason the fair use statutory language is the way it is is that it was largely a codification of the thn-existing case law on Fair Use as a Constitutional (stemming from the First Amendment) limit on the copyright power.

> If legislatures were to pass actual legislation for them to interpret that would be a different thing.

Congress isn’t really interested in expanding Fair Use beyond the Constitutional minimum, though.

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This seemed to be a reasonable decision. The Obama Hope poster case was settled out of court but seems very similar. And the original image had been licensed previously.

Some of the dissenting opinion in these cases seems to be partly on the grounds of this is Andy Warhol (or Roy Lichtenstein, etc.) we're talking about here so their work is obviously important and transformational--in a way that my applying some Photoshop filters clearly isn't.

The decision reached the right outcome (overall, the use was not fair) for really the wrong reason. What the decision probably should have done was to rule that what Andy Warhol did was transformative, and therefore the first factor favors fair use, but wasn't transformative enough to be overall fair use, as the other factors (in particular, the fourth factor) weighed against fair use far more strongly than the first factor weighed in favor.

However, the court essentially boxed itself into weighing in only one the meaning of factor one, so it tries to reach the decision by half-importing factor four (the degree to which it substitutes the original) into factor one analysis. Furthermore, it ties itself into a knot to argue why Andy Warhol's use in the original prints was transformative and overall fair use, but the use in the newspaper article wasn't transformative.

The dissent manages to be even worse by, as you point out, essentially arguing that everything Andy Warhol does deserves to be fair use because it's Andy Warhol. Oh, and taking as many potshots at the majority opinion as is possible. As bad as the majority opinion was, the dissent is even worse.

> The dissent manages to be even worse by, as you point out, essentially arguing that everything Andy Warhol does deserves to be fair use because it's Andy Warhol.

That's not how I read it. The gist I took was that Andy Warhol deserves fair use because the art establishment has consistently viewed his works, the Prince piece included, as revolutionary. And to state the bloody obvious, if his work was not transformative, it never would have been seen as revolutionary.

It's still essentially an appeal to authority. “Good artists copy, Great artists steal” and all that. If an artist is great enough, by definition they're doing transformative things with anything they touch.

For whatever it's worth, I'd say that artists are more qualified to make that assessment than the justices on the supreme court.

>>to state the bloody obvious, if his work was not transformative, it never would have been seen as revolutionary.

that is not at all obvious to me--what is revolutionary in Warhol is not the art but the way people see it, like found art. but if you "found" the art in someone else's comic, and aren't substantially changing the actual image--the actual appearance of the work, the only part that could reasonably be described as being ripped off from someone else... it can be revolutionary without having meaningfully transformed the original, just the way people see it.

disclaimer: I don't have a lot of time for that kind of art, which no doubt biases me.

The precedent the Supreme Court actually set here is somewhat interesting. If the work had been used to advertise a magazine issue about Andy Warhol, there may have been grounds for fair use. But because it was an issue about Prince, stealing another artists' work and slapping colors on it doesn't excuse you for not crediting them.

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