This is an argument over not fair use, but transformative use. How much transformation of an old thing has to take place before it's a new thing? That's very much an issue now, because ML systems have become very good at transforming old things into somewhat similar new things.
Classically, such transformation was a lot of work. A standard art-school exercise is to hand-copy a classic painting. Possibly with variations. Because that's quite a bit of work, it generally hasn't raised serious copyright issues. Now, though, it's very easy.
Much music litigation revolves around this. There are only so many note patterns that sound good. Someone has generated all 69 billion possible 8-note melodies and released them into the public domain, just to mess with any claims of melody originality.[1] Images are a bigger space, though.
Let's not forget also about Library of Babel (https://libraryofbabel.info/) which includes all texts ever written and that will ever be written up to 3200 characters. I truly wonder how that website is allowed to exist and why they don't claim copyright for every other website that has been created since.
Does it truly contain all these texts? It seems more like it can generate any of these texts, but they are (obviously) not pre-generated and stored anywhere.
If we consider only lowercase non accentuated English characters and a few additional basic chars (space.,? etc), let's say 30 base characters, we are looking at 30^3200 combinations. Which is a number made of 4727 digits. Estimated number of atoms in the universe is 10^80. So basically nothing compared to this 30^3200.
Them claiming copyright over this would be a bit silly as the texts don't truly exist but only have the potential to be generated.
Would the situation change once someone can store all these texts? What if they can compress them efficiently? You could say this is just a sophisticated decompression algorithm of the original body of text.
The site can generate any sequence of text from its alphabet of 29 characters. This means it contains 29^3200 different works.
Let N = log(29)/log(2).
It is not possible to create a compression system where each work on average will use less than N*3200 bits once compressed, assuming each compressed value corresponds to only one work. This stems directly from the pigeonhole principle.
What could be possible is to create a compression scheme where say pages consisting of english text can be compressed to smaller (at the expense of pages of random garbage being compressed to longer).
This stems from the fact that the entropy (information density) of English text is much lower the 29 character alphabet space can permit. But you cannot on average have the valid English only pages compress to smaller than their entropy either. You can design the system to favor some works over others, but the average compressed length must be equal to or greater than the average entropy of the works.
And all you have really done here is invent a weird lookuptable table based compression scheme for english text. All other compression systems are also similarly constrained by the entropy of the data to be compressed, but most other scheme don't require an infeasible large lookup table of basically every possible output.
What Colour are your bits? is an interesting look into these concepts:
"The scrambled file still has the copyright Colour because it came from the copyrighted input file. It doesn't matter that it looks like, or maybe even is bit-for-bit identical with, some other file that you could get from a random number generator. It happens that you didn't get it from a random number generator. You got it from copyrighted material; it is copyrighted. The randomly-generated file, even if bit-for-bit identical, would have a different Colour."
Do you truly wonder that? Unless someone takes legal action fair use doesn’t take effect. Why would anyone bother to take legal action against them? This is essentially an art project.
> This is an argument over not fair use, but transformative use.
I’m going to be pedantic, but: as far as US law goes, transformative use isn’t separate from fair use. Rather, transformativeness is a key test used to help establish whether something qualifies as fair use.
Yeah I was disappointed that the article didn't even mention the fair use factors, or discuss how the upcoming case would affect some but not others of them. For reference, these are the four factors:
• the purpose and character of your use
• the nature of the copyrighted work
• the amount and substantiality of the portion taken
Yeah, should probably give up on copyrighting sequences of notes. Copyright the arrangements instead. An awful lot of what makes a song good is the arrangement.
I like the idea, but isn't an arrangement a set of sequences of notes assigned to instruments / voices? Fundamentally, a "documented" sequence of notes? (where a note has a duration, an instrument, a start time, a function defining the dynamic, a pitch (possibly a function), possibly an intent, possibly a part of the lyrics if applicable).
This is similar to the case, which was successful, over the use of a stolen photograph for Barack Obama's campaign. The artist involved, Shepard Fairey, actually was sentenced for his involvement in the case:
To clarify the above, the criminal charges came in not over copyright but over destruction of evidence and false statements:
> However, criminal proceedings began when it transpired that Fairey lied in the earlier case, destroyed documents and submitted false images. In a statement published following the proceedings, the artist said that he 'accepted full responsibility for violating the Court's trust by tampering with evidence during my civil case with the Associated Press,' before going onto argue that he still believed he had a strong Fair Use case.
Trademark infringement cases can be ruinous, especially without insurance, but it’s civil not criminal.
> Trademark infringement cases can be ruinous, especially without insurance, but it’s civil not criminal.
This was a copyright case, not a trademark case. And if the FBI warnings at the beginning of VHS tapes are to be believed, you can face criminal charges.
> He compared Warhol’s distinctive silkscreen aesthetic to filmmaker with an easily identifiable style turning a book into a movie—that doesn’t mean the film is no longer a derivative work.
I don't find that argument compelling at all. Going from a book to a movie is a wildly different (and more involved process) than going from a photo to a silk screen.
So what about turning a person (Prince) into a photograph, by the "mere" use of a technical apparatus?
It's an interesting aspect that we do not allow a model or actor to own the specific posing and/or acting, as this would imply considering any media capturing the performance as derivative work. There's an enormous bias in the system, right from the beginning.
I think, this can't be handled on a general or universal basis. E.g., in the given case, I don't think that anybody would find a rough line tracing infringing. So, how comes that it's infringing, when the lines are filled by a black ink? Moreover, it's not a perfect copy, aspect and format are different (sufficiently to make this a legal museum copy), texture and color are different, even the outlines don't match. Even more, it seems that it wasn't initially apparent to even Lynn Goldsmith herself that Warhol's portrait was based on this photo. Where's the exact border between "inspired by" and "an infringing copy"?
This case is even more interesting, as the photographer argues that the Warhol's image directly competed with the original photo for a cover of Vogue and that the magazine picked Warhol's image to license. But, this is also a strong indication of the genuine artistic value of Warhol's work/version, since there was a reason that this was picked by the editors over the other one. There is a semantic difference, which was introduced by Warhol.
Would a sketch of stick figures erecting a flag pole be infringing with respect to the famous Iwo Jima photo? The reference may be instantly recognized, but still… The only way I could think of this happening, is with respect to this actually being a directed set photo instead of the documentary it's usually deemed to be. However, this (the photo of Prince) is not a choreographed piece, it's rather a collaboration of many factors and skills contributing to the shot.
And, can a consortium of photographers actually own the likeliness of a person, since there are few chances to make a regonizable visual reference to a person without referring to a photo, as soon as the person is dead? So any depiction would be derivative per se, even it it were technically not founded on an individual photo.
Finally, a work may be derivative and even infringing, if it falls into the regulatory frame work of fair use. This is part of the system, as well. What is in question are the exact boundaries of this.
It is. It's also works in the middle of a legal dispute. I'd guess The Atlantic's lawyers nixed their use "out of an abundance of caution." If you get pulled into a legal dispute--even if you think you're on firm ground--you'll still be out a lot of money for lawyers.
Companies mostly don't just have spare lawyers sitting around waiting for work to come in. Furthermore, if something were to go to court, outside counsel would likely get involved in any case. So, yes, there are costs associated with law suits even if you have some in-house staff.
Not for use for commentary as long as they don’t threaten the market for the originals (as in super duper exact high res vs a couple okay thumbnails to show the comparison).
That seems incredibly transformative and especially since it would be part of a collection of many variations on the Prince print and displayed as such, playing with the idea of mass production and celebrity. Warhol’s art is like a meta-layer above celebrity photographs.
How is that transformative? It's just a copy of the photo with some level adjustments and background colors. Takes about a couple of seconds to reproduce in your favorite photo editor.
I find it transformative because I know about Warhol, his art practices, and the context with which he worked.
These works were made in one of his “factories” and were always a part of a larger series. The works were not made in a computer. They were very large screen prints.
To me how they were made and why they were made are just as important as the finished product.
One of my interpretations of Warhol is that celebrities might as well be produced on a factory line!
> I find it transformative because I know about Warhol, his art practices, and the context with which he worked.
In other words, you feel that the Warhol piece is transformative because it was Warhol that made it and not because of the inherent properties of the work itself?
When dealing with celebrity artists like Warhol, who made the art is always 99% of the story, 99.9% of the value at auction. You'll never get the art fanboys to admit this, because part of the game is pretending to see something special which puts them above the mere plebeians who can only perceive the mundane (who call a spade a spade.)
We have lots of examples of this on music, where the same melody reproduced for only a few seconds by a different artist on different instruments in the context of a different song, is still a derivative work.
A different artistic context alone usually isn't sufficiently transformative.
The photo itself is "just" a copy of a physical scene with some level adjustments. Would have taken about one tenth of a second to produce with your favorite camera.
Copyright is framed such that the subjects of photographs generally have no claim to the resulting image. Why should the photographer's claim be absolute?
(And just for reference, I say this appreciating the work that goes into taking a good photo)
The problem, legally speaking, is that this is almost the exact same fact pattern as Rogers v. Koons, in that the photograph itself was not being commented on, so parodic fair use isn’t a valid defense.
I’ve been to DIA beacon (one of my favorite museums). That large scale installation is kinda remarkable but not typical of Warhol’s art I’ve seen in other places.
Which is unfortunate because the kinds of large scale installations at DIA Beacon are how the artists originally conceived of their art! Most of the artists featured there also have some out-of-context work sitting in a wing of another modern museum somewhere.
Art is in the eye of the beholder. I choose to accept Warhol’s gaze and I find it rewarding. His exposition means something different to me than the original photograph.
I agree that Warhol has done something different, but it's entirely derivative to the original image, I can't see how there would ever be a question of whether he copied the image, he did.
For Fair Use one asks if the copy is transformative, ie for a different purpose to the original, but it clearly shares the purpose of representing Prince.
[Outside the USA, where we don't have Fair Use, this presumably would be tortuous infringement.]
We could discuss reproduction as a vibe, but it's easier and more falsifiable to discuss it as taking a photograph of a work, separating its colors, using those color separations to create plates (whether physical or digital), and using those plates to direct the application of dyes to a surface.
We can't deny that Warhol both intended to do and did that to the photograph.
> it's easier and more falsifiable to discuss it as taking a photograph of a work, separating its colors, using those color separations to create plates (whether physical or digital), and using those plates to direct the application of dyes to a surface.
You can't determine whether a usage falls under fair use just by looking at the end product without considering the intent though.
And this is the reason for fair use! It is quite clear to me that Warhol is presenting these images in a profoundly different manner than the original. A copyright regime without such an allowance would deprive people like me of an aesthetic experience.
You have a choice with someone like Warhol. You can feel something or you can feel nothing. And yes, most of this is a personal choice, a matter of faith, a matter of letting yourself enter into the world of the artist.
Or don’t! Just look at this art and say “this is terrible” and “this is theft” or any number of other negative emotions.
It’s really odd to frame such a dispute through the lens of whether it gives you enjoyment or not. A stolen Van Gogh would give the thieves’ house guests plenty of aesthetic pleasure otherwise unavailable as well.
I don't think that's what they are saying. I think what they are saying is that we should try to construct laws to maximize net utility for society and this is an example of where net utility would have been deceased if Warhol wasn't able to make his parody paintings.
The imperative to “maximize net utility for society” would yield so many wild results that this question would be rendered well beyond pointless.
In any case, I believe that the negative utility created by no original artists producing work because people like Warhol rip them off and mass produce (not to mention the [IMO] negative utility of distorting society’s expectations of art and artists) would far outweigh the utility of someone enjoying a slightly distorted version of an original piece.
So even if that were society’s imperative, it’s not at all self-evident Warhol’s actions are positive utility and should be accepted.
To anyone persuaded by this argument: consider that net utility could undoubtedly be increased by any number of redistributions of your net worth. In fact, it would arguably be easier to make this case than the one for the work in question.
If the Warhol Foundation wishes to make this utility argument, it should first put all Warhol’s work into the public domain.
"art is in the eye of the beholder" had nothing to do with copyright. That fact that it means something different to you is not relevant. Actually it is, and it implies that copyright is still necessary.
I think both sides are right, and that this is another example of why copyright is not a good abstraction. It ultimately doesn't make sense because the way we learn how to do things is by imperfectly copying each other. Being successful means to successfully produce a stylish, architectural variation of combinations of fragments of things that you've seen before.
Part of the quality judgement on a work is in the nature of its comment on what has come before. This is whether you're putting on a play, designing a skyscraper, or designing the API to a website that keeps track of people's coin collections. If you fail to stylishly or profoundly reference things that have come before, your art is probably bad.
edit: and by "I think both sides are right" I mean that I think the pieces of art are completely different to the point of barely resembling one another, just the shape has been retained. I also think that the photographer contributed as much to the work's construction as the artist, and deserves as much of the profit and say in the decision-making about how it is used. And I should use collective pronouns for the artist, because Andy Warhol likely just told somebody to paint on the photograph, and suggested colors, then approved the best of 10.
> I think both sides are right, and that this is another example of why copyright is not a good abstraction. It ultimately doesn't make sense because the way we learn how to do things is by imperfectly copying each other. Being successful means to successfully produce a stylish, architectural variation of combinations of fragments of things that you've seen before.
Making copyright last 10 years only sort of solves this issue.
I sometimes wonder: why do we so badly want artists to be able to make a living of their work?
Don't we want art that is pure and that is made by people like us (when we are not trying to make money), instead of by people who live in some completely alternate reality?
Copying has been a thing since the beginning of evolution. I'm ok with people making money through selling art, just don't bother me with human-made laws around copying.
Professional artists add both skill in the mechanics of art production and analysis that takes a broad view of art and culture. Can we manage without professionals? Sure, but --excepting some edge cases-- we'll miss out on a lot of cultural reflection and on a wealth of artwork.
To my personal view, copyright is a good idea at the 7 year/14 year terms originally envisaged. Beyond that it becomes more of a harm to creativity and artistic cultural progression.
However, you do need to protect individuals from corporations. If I submit a book to a publisher, they say "no", then they hold it for 14 years and decide to publish it ... I'd still want to be protected. Visual artists, painters say, often become popular later in their career; should commercial interests be able to exploit that lag to sell the person's earlier work without the person getting reward?
I believe copyright term typically starts at the first publication, not when the work is created, so a work that was submitted to a publisher but never published would still be protected no matter how long the publisher waited.
Copyright applies from creation: an unpublished work is still protected, although proving its origin will likely be easier following publication. The US Copyright Office summarises it as:
The law automatically protects a work that is created and fixed in a tangible medium of expression on or after January 1, 1978, from the moment of its creation and gives it a term lasting for the author's life plus an additional 70 years.
> If I submit a book to a publisher, they say "no", then they hold it for 14 years and decide to publish it ... I'd still want to be protected.
When I originally licensed my Empire game back in the 80s, I put a clause in the contract that if they didn't put it on the market within so many months, the contract was automatically cancelled and all rights were returned to me. There was also a minimum royalty clause, and a clause against diluting it with bundling.
I don't think your concerns about 7 or 14 year terms are actually necessary:
> However, you do need to protect individuals from corporations.
This is generally true, so much so that I think the only relevant action would need to be general, to protect individuals from corporations generally. Creators would benefit from protection regardless of whether the term is changed.
> If I submit a book to a publisher, they say "no", then they hold it for 14 years and decide to publish it ... I'd still want to be protected.
Presumably a much greater proportion of work would be prepaid (via mechanisms like the built-in ads on youtube videos) or self-published. Although they continue to add value, publishers are much less necessary at the moment than previously (as we can see from independent podcasts). The marketplace and output might be completely different if there are short terms, but it will not lead to a collapse in production or a failure to remunerate artists.
In any case, the authors of copyright material are not presently engaged in free and equal relations with corporations. If nothing else, a corporation is generally able to sue you, whereas you're generally not able to sue a corporation. And a corporation will write contracts that regularly get tested in courts and get tweaked and improved, whereas you will rarely write contracts and you will rarely have opportunity to improve them based on problems.
> Visual artists, painters say, often become popular later in their career; should commercial interests be able to exploit that lag to sell the person's earlier work without the person getting reward?
This doesn't happen because their work obtains some additional quality through the passage of time, as though it were a wine ageing in oak. It happens because of the reputation of the artist; by buying the work, the owner has some kind of a relationship with a well reputed person. If anyone is selling a print, the print that is personally authorised by the artist will have a higher value. Therefore, I would suppose this isn't a problem that needs to be fixed.
None of this means that everything would continue just fine. Reducing copyright to a few years would be revolutionary. It would result in actual cultural changes. For instance, right now you can use copyright to create artificial scarcity that lasts essentially forever. With a seven year copyright, the artificial scarcity only lasts a few years, so you need to make the most of it. That means that oldness is free and recency is expensive - a reversal of the current system (where oldness is expensive, because it costs more to get something that last a long time, but recency is cheap)
> In any case, the authors of copyright material are not presently engaged in free and equal relations with corporations. If nothing else, a corporation is generally able to sue you, whereas you're generally not able to sue a corporation. And a corporation will write contracts that regularly get tested in courts and get tweaked and improved, whereas you will rarely write contracts and you will rarely have opportunity to improve them based on problems.
I'm sorry to say this, but this is (from my personal experience as a one man company dealing with corporations) complete and utter baloney. Including suing them.
I wrote my own contracts, and lawyers who looked at them later said they were pretty good, though I probably would have been smarter to use the lawyers in the first place.
There is NO REASON WHATSOEVER that would force you to accept terms from a corporation that YOU DON'T LIKE.
Just say "NO".
And yes, I have successfully sued a major corporation you've all heard of for cheating me out of 6 figures of royalties. I won't name the company because this was settled long ago. It was so blatant that my lawyer took it on contingency.
Ordinary individuals can and do successfully sue major corporations all the time. All you need is a solid case.
It is not about art per se. Art happens to be covered under the same umbrella that researching medicine, writing software, drawing schematics, etc.
When the initial cost of production is very, very high and the marginal cost of each additional unit very, very low, copyright is the solution that has so far been found to “work” to incentivize investment- assuming you agree it works. Not that the current implementation is best, especially the length, but the concept.
It probably also gets favoured because it tends to fit into the Western mindset of "bottom-up" and "self-bootstrapped" decision making.
An alternative, for example: we could take the same amount of money being spent on creative works, absorb it through taxes instead, and redistribute it through a state-managed endowment system. The amount of money we spend for one Mick Jagger would probably fund quite a few musicians with a 70k/year stipend and an obligation to perform shows/generate recordings/etc.
But to pull that off, you'd need some sort of formal arbitrator to decide who is "enough" of an artist/scientist/etc. to qualify for an endowment. I know there's a very strong attitude of 'you can't regulate what art is', seemingly used to justify charging seven figure prices for products that look suspiciously like they were fished out of the local preschool's recycling bin.
If copyright laws were removed, would we still have movies that cost $200 million to make? Probably not. Do we really need them? Not really. Cheaper movies would still be made, though.
I've seen a lot of low budget movies that were better than the $200m ones. I don't need special effects to enjoy a movie, I need a plot. Check out "Dark Star", made for $50,000. It's far, far better than 95% of the scifi movies out there. Because it had an interesting plot. "Primer" is another example.
Surely the people that made Primer appreciate that they were able to get some compensation due to anyone not simply being able to copy and distribute it?
Otherwise, what is the incentive to do all the work and take the risk to make Primer if it is just going to be on YouTube for the benefit of Alphabet’s ad revenue?
Youtube hosts a billion videos where 99.9999999999% of the creators had no hope of recompense. The same goes for books and music.
Here's a good reason: the movie itself is an advertisement. For example, Michael Jackson hired a famous movie director to create his music videos. What where those videos for? Advertising for his live concerts which were huge money makers.
And 99.999999999% of YouTube is not worth my time. Quality takes effort and talent, and putting a carrot at the end of the stick makes sense to me to incentivize expending effort and developing talent. Especially for media where the probability of success is very low.
Movies might be advertisements in conjunction with just being a movie, but the creators’ multiple intentions do not seem relevant in this case.
The "advertisement" in the movie may be simply promoting the careers of those involved in its production.
For a related example, my dad wrote a book. The royalties were well into "not worth it", but he wrote the book to advance his professional prestige, and it worked for that.
Most authors of technical books, for example, fall into that category.
A director might want to make a movie to raise his market value in producing media for corporations, who have a constant need of such. Actors will do it for free just to be famous, which leads to all kinds of opportunities. Just look how the Star Trek TOS actors made a living off of their fame, and ST was a really low budget operation.
This assumes that without copyrights, they couldn't get any compensation. However, even today, there are plenty of ways to make money from a creative work.
Eg. Product placement, patronage, or a subscription service
>I sometimes wonder: why do we so badly want artists to be able to make a living of their work?
Because art takes time, effort, practice, talent, and the cost of materials. If someone produces something of value, they should be paid for that value. In order to produce art, the artist needs a roof over their head and food in their stomach. As a society, we value it enough to spend millions on it every year.
If you want art made by "people like us", buy it from them. If you don't feel like there is value in work by people who make their living painting or singing, don't buy it.
If you want people to do it for peanuts because that means they're passionate about it, that just shunts them off with teachers, CNAs, social workers, park rangers, and all the other folks doing difficult and demanding work where their compensation doesn't even begin to reflect their effort and the value they bring to society. But they should shut up and smile while they do it because they're passionate about it.
Because the same laws that protect the artist with copyright also protects the code that I write as a hobby or release under an open source library to ensure that improvements to my code come back to the library.
Without copyright, GPL and its deracinates have no leg to stand on to prevent it from being incorporated into closed source programs and forever locked away. Sure, you'll be able to copy the application without copyright protecting it, but you'd be unable to modify it. It would be the success of the free part at the cost of the libre values.
Well, having the opportunity to make a fantastic amount of fame and money and live a bohemian lifestyle is part of what makes art so alluring to potential artists, many of whom would never pick up a paintbrush if they knew that this path led only to penury.
Art would be lesser if only wackos, hermits, trust-fund kids and ascetics were able to pursue it.
I've wondered the same thing at times. I eventually came to the conclusion that there are intangible things that society values and must create (concoct) laws to protect the ones that are much too easily subvert or bypassed in ways that effectively remove the valued thing from society.
I'm not sure it's the best analogy, but I considered the protections given to real estate agents as something similar. Why can't people just go negotiate directly with the sellers? I won't go into all the obvious details but there's real work back there, just as with art, and the end result isn't protected very well on its own, hence the need for laws, even silly sounding laws.
That seems plausible too, and also lines up with what's happened to copyrights in the US...I can't speak much to real estate, but I'd say copyright went way overboard.
Not to contradict you, but it was my understanding that modern art--looking at you, Hunter Biden--is substantially a publicly visible form of money laundering.
Warhol could have simply asked to use the photograph. If the photographer declined, he could find another photographer and another photograph and seek permission.
However, if there was something so special about that particular photograph that compelled Warhol to use it even without permission, then the argument that it was a ‘generic’ Prince photo falls apart.
Or, god forbid, Warhol or one of his minions could have taken their own photo of Prince…
When we learn something to make something (through copying), it's usually not our first idea to sell it. And in this case, Warhol didn't learn anything from Goldsmith.
> I think the pieces of art are completely different to the point of barely resembling one another
I'm just going to accept that if I put your urinal in my art gallery, it becomes my fountain. I'm going to accept that because I enjoy it, and because that is the consensus.
"…"I think both sides are right" I mean that I think the pieces of art are completely different to the point of barely resembling one another, just the shape has been retained."
I think here both sides are actually right in this instance—and I don't disagree with you saying that the images ”barely resembling one another" but I would not go that far (as I think there is a significant recognizable resemblance).
That I disagree with you isn't the problem per se—as it'd be a damn boring world if we all agreed or experienced the same perception—rather it's that in cases like this the judgment relies on a subjective
analysis by the person(s) doing the judging and that everyone's subjective judgement is different, moreover, to further complicate matters, such differences are likely to alter over time.
Thus, if courts allowed it, this case could go on indefinitely with no one being adequately served. This is an obvious case where copyright law has broken down and it's clear the law needs to be changed.
It seems to me that royalties ought to be split in this instance but I don't want to get embroiled in a discussion about how the law should be altered as that's not the issue here.
Rather it's that we have to face the fact that current copyright law is broken in many areas and it desperately needs reform to make it fairer and less contentious. It needs more than just a fine tuning, instead it requires major reworking, and for that we need to bring a much more sophisticated and nuanced approach to the problem.
'Fair use' provisions are already under considerable strain by the hardened attitudes of many copyright owners—especially from large corporations, Sony, Disney, Elsevier, etc.—and tightening them further by a precedent in this case would likely have significant negative repercussions elsewhere. If the law is tightened writers and artists who don't have big pockets won't dare risk doing derivative works even if they plan differences that are much larger than those in this case and that will twart innovation (if the law becomes more restrictive then copyright holders are also likely to become more litigious).
There are also other issues that make copyright law unfair such as the unreasonable increases duration of copyright, excessive restrictions on the use of orphan works, the right to copyright works that are only trivially different to works already in the public domain and the absolute rights of copyright owners with respect to licensing—that is that copyright law does not acknowledge those who are in a position to copyright material are also members of society who, in many instances, have developed their talents at public expense (their education etc.) and in return they have some obligation to society (which implies that some form of enforced arbitration ought to be a part of copyright law).
I'm not advocating that rights holders not be paid fair dues for their works—clearly they should, but at the same time they should not be allowed to exploit consumers of copyright material as has so often happened in recent years.
The difficulty with this case is that a fair decision in this instance could likely result in a net increase in copyright restrictions which will only increase the unfairness of copyright law. It's why we need urgent copyright law reform—and that won't be easy given the many complexities involved.
> in cases like this the judgment relies on a subjective analysis by the person(s) doing the judging and that everyone's subjective judgement is different, moreover, to further complicate matters, such differences are likely to alter over time.
I agree with you 100%. My judgement of lack of resemblance is based more on whether I imagine that the same person would want to use both in the same context, not on anything that I think anyone should respect. I just don't think you can draw a line. We need to move to a model where we are openly, explicitly granting and enforcing monopolies on the production of certain works in return for some societal benefit. Not just assuming that society always benefits when monopolies on reproduction are granted.
If we don't want whales to rush in and capture all of the profits when somebody produces a creative work, we can target that situation explicitly, rather than pretending that qualifications for being worth protecting are inherent in the work, rather than a legal construct. A pretension that creates a situation where a defense of the series of disposable Warhols can be to denigrate the photograph that they chose to base the series on. Judges and juries as art critics, trying to figure out how much of Blurred Lines is Marvin Gaye.
"We need to move to a model where we are openly, explicitly granting and enforcing monopolies on the production of certain works in return for some societal benefit. Not just assuming that society always benefits when monopolies on reproduction are granted."
Yeah, right. See my reply to Worldblender, it's my more detailed and pessimistic take on things.
A few of the best places to start such work on would be to focus on reducing the length of copyright terms and generally allowing non-commercial usages, redistribution/copying/similar, and modifications/derivatives. Because I think these two issues don't directly touch on the profit-making aspects, they may be easier to deal with rather than a full-on revamp of existing copyright laws or even abolishment of them.
That said, even these two issues aren't going to be easy to change at first, especially with big companies and some pre-existing laws like from the Berne Convention in 1909 (!) that have to be dealt with as well. All things that I definitely cannot change just by myself; at least we need more people onboard with copyright law reforms like what I said before any meaningful change is expected.
"A few of the best places to start such work on would be to focus on reducing the length of copyright terms and generally allowing non-commercial usages, redistribution/copying/similar, and modifications/derivatives."
I agree with you completely but by far the biggest challenge is to get changes to international copyright/IP law and that's proved (and is still proving to be) extremely difficult to achieve. The only significant changes to the Berne Convention† in over a century have been to tighten copyright provisions. The trouble is that getting changes to international agreements, especially long-entrenched ones such as copyright treaties, is about the most difficult of any law to change. Essentially, such treaties are set in stone because so many countries are signatories to them, and experience has demonstrated that copyright/IP law has powerful backers in almost every signatory country.
Even if, say, one country wanted to make significant changes to its copyright law then the treaty binds it and thus it's unable to do so. Moreover, any said country cannot simply walk away if it disagrees with the treaty as it'd be deemed a pariah and would be subject to sanctions. A country withdrawing from a treaty puts it in a very different situation to that in which it would have had been in had it never signed the treaty in the first instance.
An example of this is North Korea's withdrawal from the NPT (Non-Proliferation Treaty) which it signed in 1985. It's now a pariah and subject to huge sanctions since its withdrawal. India and Pakistan both of whom never signed the NPT are not in the same dire situation (they're criticized for not joining the NPT but that's all that's ever happened to them). If any country withdrew unilaterally from IP treaties then it'd receive the same treatment as North Korea. And to make matters worse, I'm sure that just about every country on the planet is already a signatory to the treaty.
I've been watching the copyright debate for well over several decades now and I've seen negligible beneficial change to copyright law, if anything the situation is now significantly worse than it was 20-plus years ago before the US Digital Millennium Copyright Act. Frankly, I'm quite depressed about it, copyright holders have such a hold over the treaty, WIPO etc. that I don't expect to see any truly beneficial changes to IP law within my remaining lifetime.
The rot set in very early on with the first and second copyright conventions starting around 1883 at the beginning of the lead up to the first Berne Convention of 1886 and then the Paris Convention of 1896. Victor Hugo and cronies were in the forefront lobbying for such a convention, and at the time, as now, the public had essentially no interest in copyright (back then, most people would never have heard of copyright let alone ever having bothered to get a delegate to lobby on their behalf. With essentially no opposition Hugo et al got away with carte blanche, that is they got the treaty exactly as they wanted it to be. Right, the treaty was a damn disaster even more so given that it had such a huge running start without any significant opposition—as we've seen, catching up has proved impossible (I keep wishing someone would prove me wrong but to date there's never been a hit of evidence to that effect).
Several years ago Cory Doctorow succinctly summed up problem with words to the effect that the average person is simply not interested in copyright law—full stop! Even if people have heard of copyright and or know about it, it still takes a very low priority in their lives when compared to other matters that they're concerned about such as the economy, price of fuel, housing etc., etc. Therefore, politicians aren't interested in doing anything about it, after all they're not going to lose votes over the issue from the citizenry, and more likely copyright advocates will gain their favor by supporting politicians' campaign funds etc.
The only way I see forward is for a well-organized international organization along the lines of, say, the EFF but one that's much larger and more powerful to take up the cudgel and run with it. I first started raising this suggestion online well over a decade ago but I've yet to see the slightest evidence that anyone's interested.
__
† Don't you mean the 1886 Berne Convention? I'm unaware there was one in 1909, but the Paris Convention was in 1896 and the one after that was the Berlin Convention, which if I recall correctly, was in 1910.
I have always thought that the fundamental toxic conceit of
"Intellectual Property" lies in an obscure fear. And I think this case
supports that.
To be clear, I'm not touching on legal or economic arguments about
payment, rights, control or attribution. These may or may not address
the many injustices facing creative people.
In the deeper spiritual conversation about ownership and acts of
thought, is the spectre of fear; that one has passed one's creative
peak. That you'll never make anything as good as that again. From that
fear comes the rejection of creativity as an inexhaustible living
process, and the urge to commodify, to cast the past in stone and
build a fence around it.
This case, which is more formally about 'derivative works', is about
stopping an art-form from living.
For me the antidote to that whole control pathology lies in Kahlil
Gibran's "On Children": You are the bows from which your children
(creations) as living arrows are sent forth. Real creators have the
courage to let go.
I wonder how much of this kneejerk reaction can be rooted back to being taught in school that copying is bad. If someone's copying me, they didn't have to do the hard work I did, and therefor it's immoral, even if it doesn't cause any loss for me.
Well the loss you mention is not the only argument. The argument is about future incentives. If anyone is free to copy and fully use my work I will not do some of the work.
It's about where the bar is. Most people agree copying someone's else novel and selling it is wrong. Copying parts of it that went into popular culture? Making variations on some characters? Those are more interesting. We just need to find some reasonable rules to balance various incentives.
> If anyone is free to copy and fully use my work I will not do some
of the work.
Why?
Please read me carefully: I am not accusing you of resentment.
But I already excluded issues of finance and recognition in my
conditions above.
So, other than spitefulness and resentment, what else might possess us
to declare that if "anyone is free to copy and fully use" some work,
then it's not worth doing?
Do you not feel the incredible plenitude and abundance of creativity
that urges you toward generosity?
Is capitalism responsible for somehow poisoning us with the idea that
scarcity is necessary for valuable endeavour?
> But I already excluded issues of finance and recognition in my conditions above.
Finance is pretty important though, if you want to feed and shelter yourself and your family. Most other types of work cannot be made worthless by others seeing it and copying it.
But the work of researching and thinking and producing a solution can, so the government figured there should be a way to recoup costs and provide incentive.
It's not about resentment. It's about reward. Unless you're in a very privileged position you need to make money from your work or you won't be about to continue doing it. If you have done great work you hope to be rewarded for it and that includes financials.
I want to live in a world where people who do awesome work are awesomely rewarded for it.
I don't get what you're about with the scarcity argument. Everyone is free to write a novel or create software or whatever. I just want people who do the work to be in position to profit from it not someone who didn't do the work
But I'm telling you, for the third time now, that money is excluded
from the argument I am making. Yet you keep dragging it back to the
same spot again. Are you entrenched in that you are not able to see
the world in any other way than through money?
Yes, money is important. Now, can you forget that? Put it aside and
try to move on to a higher level of thought?
("No" is a perfectly acceptable answer that would satisfy my genuine
curiosity)
The point he's making is that you can't just say "money is excluded from the argument I'm making" and still be anywhere relevant to reality.
People dislike copying because for most people it's an attack on their income, either by taking their recognition (eg copying "free" images from a photographer) or by actually taking their income (eg copying paid art).
If you exclude financial arguments you exclude the vast majority of people who share their work.
To bring this around to code, most popular licenses allow copying someone's code with proper attribution, so clearly copying is okay as long as you don't take recognition from a work that isn't profit motivated.
I think "No" would have saved you many words. Nonetheless I am
disappointed that there appears not a single voice amongst you who can
conceive matters of creation outside a framework of money, income,
profit, reward, theft, entitlement, licenses, capitalism,
communism.... they really have you where they want you.
It seems pretty obvious to most people, that some artists would be unable to produce certain works of art, if they did not have the funding to pay their bills.
Why are you unable to understand this? Just engage with the argument.
Because it is not an agument, it's a diversion, and an attempt to drag
a much more complex and interesting debate into the long grass.
> It seems pretty obvious to most people, that some artists would be
unable to produce certain works of art, if they did not have the
funding to pay their bills.
You're correct. It is obvious. Indeed it's so boringly self-evident it
precludes discussion. It's dull, maudlin, perennial and a pointless
spiral down into lamentation of broken political and social systems
that are utterly beneath the level at which I wish to engage.
Are you familiar with the expression "Never argue with an idiot
because they'll drag you down to their level and beat you with
experience"? That.
> Why are you unable to understand this?
I understand it perfectly. I'm just not interested in it.
> Just engage with the argument.
Your entitled indignation that I refuse to be dragged into the mud
amuses me.
So then yes, you agree with everyone else completely, that many artists would be unable to produce certain art, if they were unable to make a living from it.
Great, you agree with everyone else entirely. Not sure why you would be so upset with everyone if you simply agree with everyone's main point, 100%.
> that I refuse to be dragged
You don't have to be dragged anywhere if you simply agree with the point, that you called obvious, which is that many artists could not produce work if they could not live off of it.
This doesn't have to be an argument. You just agree with them, and you called it obvious.
Unfortunately this HN forum is not conducive to long exchanges. (I
probably won't read further replies as they slip off the bottom of my
workflow here). I appreciate your reply and willingness to have a good
banter.
Our difference is that "artists" are driven by complex psychological
and spiritual motives, way beyond money, which is a necessary but
insufficient component of the artistic life. Some commenters don't
like it when I say you're an accomplished craftsman but not a "real"
artist if your preoccupation is with money. I can understand why that
hurts, especially if one is besieged by brutal, empty capitalism and
looming AI predating on your soul.
But I stand by this. And most of Art-history and the philosophy of art
bears me out. And my point is that the artist who sacrifices
(prostitutes) themselves on that altar of anomie and alienation is an
accomplice in their misery - however strong the need to "put bread on
the table". We are more than this.
Sorry, but you already said that you agree with the point, and called it "obvious".
So yes, you agree and think the point is obvious.
And now you are just moving the goal posts to something else, using a lot of words, in order to ignore the fact that you just agreed and said it was obvious.
It does cause loss for you. How many hours you spent on that original work have been wasted. You could have just spent 10 minutes copying someone else.
To the downvoter, please do some free contract work for me. It causes you no loss.
Hi. I’m an artist. I have spent most of my life practicing my craft. I think that until we have abandoned the concept of “working for a living”, this line of thought is a bunch of wankery.
If I create something that people are willing to keep buying for decades without any more work on my part, then I have a nice source of recurring, passive income that I am very motivated to defend by stopping anyone else from profiting off of it. I am also a human being who needs to do things like take a break from working now and then so I don’t burn out. And explore new avenues of expression without worrying about spending a while making stuff that’s not good enough to get paid for. And work on big, weird projects. Having something that keeps selling without me putting in any work is great for all of those things.
The fundamental toxicity here is that we live in a capitalist hellscape, not that artists would like to use their skills to get by in said hellscape.
Would you prefer a communist hellscape where you only get paid if the Commissariat of Art likes it, or a monarchist hellscape where you only get paid if the Duke of Something is your patreon?
In the communist hellscape you would have a minimum of food and housing guaranteed and could survive regardless of the Commissariat pays you or not.
The monarchist hellscape is pretty much equivalent to the capitalist hellscape, except you are trying to seek patronage from the public rather than a single entity. The capitalist hellscape is a hellscape because disposable income is disappearing from the middle class.
In a communist country, can you send a letter saying that you will never return to the car factory because you are going to make sculptures all day long? Are they really going to continue giving you house and food or the secret police will ask nicely to reconsider your decisions? (Assuming it's not https://en.wikipedia.org/wiki/Khmer_Rouge and there is enough food.)
> Hi. I’m an artist. I have spent most of my life practicing my
craft. I think that until we have abandoned the concept of “working
for a living”, this line of thought is a bunch of wankery.
If you seriously think that the deepest spiritual questions of
why we create are "a bunch of wankery" then you are no artist.
A producer of things, maybe. A very successful producer of
wonderful, beautiful and desirable things perhaps.
Ah yes, and now we have the “you can’t be a real artist if you consider any practical realities of putting food on the table with your work” wankery. I’ll just go subsist on moonbeams and philosophy so I can be a real artist then.
Congratulations on maintaining your sense of smug superiority throughout this discussion.
I am, as I said, a working artist. I have done multiple solo projects that spanned one or more years, each more ambitious than the last. I have cover quotes from four people with something like seven Hugos between them on my last graphic novel.
I am now returning to a project that I put down for a couple of years because it got to a point where the polish it needed was not compatible with the ways my income is structured. I recently had a boring corporate art gig work out really well so I get to spend at least a few months not worrying about where my rent is coming from, and I’m stopping less ambitious projects that were easier to crank out at high speed in favor of this crazy thing. They were also ones that felt more likely to be popular. The serious big projects? I care that they please me, first and foremost; I do them because I have something I need to say through the medium of words and pictures,
I do not worry that I have peaked. I worry about paying my fucking bills in a world that’s increasingly more hostile to making a living as an artist. I worry about every social site wanting to hide posts that link to my site because these corporate hellsites are optimized to keep people scrolling past interchangeable “content” that fills the space between ads.
When I finish this project, I am confident that my next project will build on the lessons I learnt doing this one, as it built on what I learnt in my previous major workings. Perhaps it will be even more ambitious. Perhaps it will be deliberately much less ambitious, so I can kick back and have some fun without pushing myself to new heights for a while. I’ll still keep getting better, every time you draw something you get a tiny bit better at drawing that thing, and it doesn’t go away unless you suffer major brain damage. Hell, even that isn’t necessarily an obstacle - there’s a story about one Warner Brothers animator in the forties who had a bad concussion in a car accident, and found that his abilities had taken a major leap forwards once he was healed up and ready to get back to work. Lose my drawing arm? I’ve seen friends shift off their dominant hand due to injury, and go from uncoordinated wobbly messes to just as good as before in a month or two of breaking out the drills they used back in art school. Eventually there is a point where my whole body will start to break down. That is when I expect to peak: when I am physically incapable of manipulating tools and seeing my canvas.
But sure, I’m “not ready” and there’s “more to the world”. And worrying about intellectual property has nothing to do with wanting to be able to make a living. And I’m not really “an artist”.
Why did it take you getting really quite angry before saying some
truly interesting and engaging things?
If you hadn't been so vulgar this could have turned into a really
interesting conversation about capacity, maturity, self-development,
... all the things I wanted to talk about that aren't the dull, common
rubble of how shit life is under late capitalism. It's shit. We get
it. The only important question is what you're going to do about it.
But if you only see threats (pretentious wankers) everywhere, those
options are going to be quite limited.
And I'm not hurt by what you say. I'm British and a writer. Of course
I'm a pretentious wanker and I'm pleased you're smart enough to see
it.
Guy colored in someone else's photo for profit. And doesn't kick any of it back. I also don't suppose his estate lets anyone else sell copies of that image. Seems like having your cake and eating it.
I dont consider it a right, I only recognize negative rights as valid natural rights.
They may have the legal authority to control it, and may have the legal authority to use government guns to prevent unauthorized copying, but they do not have the moral or ethical right.
You must reject natural rights in favor of "who ever have the most guns has the right" method to definition of rights
Copyright is an artificial right created to assist the "progress of the Science and Useful Arts."
Is copyright still doing that, or is it creating cartels, being used to tell you what you can see and hear, encouraging patenting obvious things for a "landgrab", and supporting companies who don't really add anything to society other than file lawsuits when they think they can get a payout?
For some industries that need a lot of upfront R&D and investment and can be well articulated, copyright/intellectual property should be able to be used to protect that investment, but we went very wrong with the current maximalism with copyright terms being 100+ years for songs that might take less than 1 hour to make, and where things like business processes and "X but with a computer" can get patented.
Well--being U.S. centric here--some are placed in a category of "inalienable" e.g. "Life, Liberty and the pursuit of Happiness" as described in the U.S. Declaration of Independence. See https://legaldictionary.net/inalienable-rights/.
While U.S. copyright is established by the Constitution, does this mean it's in the same category as "inalienable"? Something worthy of more research on my end to be sure.
It probably wouldn't be considered "inalienable"... I don't think eliminating it is the answer; some form of Copyright should probably exist. Maybe it would be appropriate to have shorter default Copyright durations overall and allow people to apply for longer terms if they think the work is particularly novel.
Something doesn't sit right with me when the same legal system supports these two different scenarios:
1) I find land or buy land and occupy it indefinitely as my property with exclusive use rights
2) I create something new using my creativity and have little to no rights over its exclusive or non-exclusive use
Why would I not control something I create when practically most other ownership rights are based on a first-come-first-served basis? Clearly if I created something, I came to it first.
Inalienable rights are about as objectively real as Christ's salvation of mankind. Something many people will believe to their grave and won't recant even under serious duress, but nobody can actually prove such things exist as anything more than mere assertions.
The concept of Inalienable or natural rights stems from the Philosophy of Self Ownership
If you deny the existence or objectivity of natural rights, then you also deny the concept of "self" and that humans are self aware actors that objectively own their own bodies.
If you copy the file, not really. If you make modifications - e.g. a different cut, new scenes, dubbing... Then I'd say you're much closer to being one.
> Warhol, in contrast, viewed existing content as source material for his own work, which, of course, is what he did with Goldsmith’s photograph. Whether he would sue someone to protect his own work is another question
How is it another question? It's the exact same question. It would be interesting to take "orange prince", change the background color to green and print it on mugs & fridge magnets, and see what happens.
Because Andy Warhol has been dead for 35 years, while Lynn Goldsmith is very much alive.
We know what she would do - since she’s done it - but whether he himself would make the same choice is, as the author says, another question that we have no way to answer.
> Didn't the article say the Warhol curators actually filed the suit first?
Unless Andy Warhol’s genetically sequenced AI brain is actively making decisions for his estate, I’m not sure this is relevant to the question of what Andy Warhol himself would’ve done.
I don't really understand the point you're trying to make here.
The author of this piece is essentially saying "we don't know what Andy Warhol would've done if the roles were reversed," which is unassailably true since he was dead for over 30 years before this lawsuit was filed and, to my knowledge, never initiated any similar lawsuits of his own during his life.
Regardless of which party moved first, neither party is Andy Warhol and so the original question remains impossible to answer.
Seems like a stupid thing to make an article about if it's really as narrow as "we don't know what Andy Warhol would've done if the roles were reversed,". And if we're saying there's no room for discussing the questions surrounding the topic.
Also seems like a pretty poor piece if that's the point and they don't investigate or mention any history, like the Elaine Sturtevant stuff.
Only fair this would revolve around Prince - keep in mind he ADAMANTLY HATED FAIR USE and wanted it against the law for people to cover his songs without his permission. He said so in interviews. I believe he was very wrong on this point and he would’ve abused copyright worse than the RIAA from beyond the grave.
Warhol’s work is barely transformative to me, as in was there tracing paper involved? Or basically the same concept? That’s not transformative that’s derivative. That term applies and it’s not fair use as derivative. These two concepts are rather clear and those who would argue it’s transformative (probably Masnik who is a quack when it comes to fair use) instead of derivative (correct term) are wrong.
Just like Masnik and Pharrell who chicken little’d the Blurred Lines ruling that it would kill creativity in music! Huh, how about that? Old Town Road paid for its samples and was a smash hit. So, yeah, welcome to a re-run of some tired absolutist arguments that fall apart.
>wanted it against the law for people to cover his songs without his permission
IANAL but note that covering a song is not fair use. However, with music specifically, it is (normally/always?) possible to pay for a mechanical license [1] which allows a musician to pay to cover a song. The same concept does not apply to many other types of creative works. For example, a playwright can (and many do) refuse to allow their work to be performed by amateur theater companies or to have the content modified.
It is also worth remembering that a mechanical license is limited.
It allows you to perform a work yourself (privately) to create a new audio recording of that work[1]. What is known as a "cover". But other than sell the new cover audio as CD, mp3, etc, or have it get played on the radio or audio streaming services, there is not much more you can do.
It does not allow your cover band to perform the work publicly. (Normally this gets covered by the venue, either via ASCPA/BMI licensing, or via individual negotiation with the rights-holder, but in some cases, like temporary venue fully orgnaized by the band, the band may need to acquire such rights.) Remember that any form of live-streaming is also public performance.
It does not allow your cover band to create a music video, or to use your cover recording as background music in a video you create. (For either of these you need a "synchronization license" that the work holder can simply refuse, and there is no simplified ASCAP-like mechanism for handling these negotiations)
It may also surprise many to learn that recording artists are not technically entitled to royalties for use of their songs over the radio. Indeed, recording artists of any kind[2] only get royalties for digital music transmission when certain exemptions don't apply, and get no protection at all for non-digital transmission.[3]
The whole music copyright system is basically a giant mess, and does not work how a reasonable person would expect it to work.
Footnotes:
[1] Or to duplicate an existing audio recording if you also have permission of owner of the copyright for that particular audio recording.
[2] unless they happen to be the musical work copyright holder as well, which is not uncommon, but hardly universal.
[3] Realistically they were only granted this digital public performance right, because a digital transmission of a digitally recorded phonorecord is hard to distinguish from copying said phonorecord.
Prince wanted the mechanical license mechanism to go away completely for everyone because he didn’t like it. That’s what I’m talking about - he sued over the dancing baby which helped build support for fair use. This article is the same crap Masnik said about Blurred Lines that it would kill creativity and the author should be admonished for such easily disproven pearl clutching FUD.
Just playing off some well-known characters or some defining characteristic of a work doesn't necessarily constitute fair use although judges seem to often disagree on the particulars.
Correct, but Prince also denied each request by Weird Al - Weird Al had every legal right to release them but he chose not to because he is a class act, unlike doctor shopping selfish Prince Rogers Nelson.
I dunno, I prefer the Warhol over the original. Should art like this not exist or be heavily discouraged or controlled by licensing fees? Copyright seems to be stuck in a scarcity mindset. Especially for static images whose market far exceeds the ability of artists to keep up with. The bigger problem seems to me that artists still don’t have a great way to sell directly to their customers.
You need to consider the affect on the original as well though. Without copyright would Lynn Goldsmith have ever taken the original photo? They have a degree in Psychology, in a world without copyright protections why would she pursue photography and filmography rather than becoming a professional psychologist?
Sure she'd probably still own a camera as a hobby, but would she have taken weeks to follow touring bands?
> That’s not transformative that’s derivative. That term applies and it’s not fair use as derivative
Pedantic, but the law is pedantic: fair use works are inherently derivative of the work they're based off of. Fair use is just an exception to the 'must get permission' requirement of creating a derivative work.
Agreed. He chose opiate addiction over hip surgery because of his personal beliefs which he held more important than his health and eventually life. Not a good guidebook in my opinion.
To me, the Warhol images are substantially different - the only common element is Prince's features, and presumably that likeness belongs to Prince, not the photographer.
Consider that the photographer isn't the owner of the likeness, and that everything besides the likeness is different, I'd call the Warhol image a substantially different work from the photographer's image.
If the ruling comes down on the side of the photographer there's definitely a chilling effect on the creation of new art.
Other than the likeness (which belongs to Prince), there are no similarities between the images.
I'm all for changing copyright to allow the stuff Warhol did, but I don't think this is substantially different at all. It's a direct copy of a picture with a coloured background. The angle, lighting, position, and expression, all probably directed by the photographer, are identical. This is the manual equivalent of an Instagram filter.
The two images don't compete in the same market, but that's not relevant for copyright. I think it perhaps should be, but as it stands, the law shouldn't be interpreted like this.
Imagine another type of copyrighted work, such as open source software, being reproduced against the terms of its license but with all names (variables etc.) changed, perhaps translated into another language or capitalised. The style of the work has definitely been changed, much like Warhol's style is very different from a photograph, but the product is very much a derivative that should be used in the terms set forth by the original author.
Also consider the effect this would have on the internet: if Google/Facebook/Bytedance were to be allowed to just scrape images online and sell them as their own after applying a black-and-white filter, any photographer would probably be up in arms.
The hook for the case is that both images were available to be licensed as magazine covers for an article written for Prince's death, and Goldsmith's lawyers argued that made both pictures part of the same market: https://news.ycombinator.com/item?id=33056773
I don’t think your analogy is correct. Colour and alteration of angle and shadow/lines produces a functionally distinct effect ie those who like the Warhol may dislike and the original for a variety of reasons including taste or whether it would match the decor where they would hang it. So it is not the same software with the variable names and casing or language changed, that would be invisible or relatively inconsequential to the end user. At worst it is a reskinned application but I think the effect is deeper than that.
The problem here is that the likeness is not what is in dispute, and the copyright of a photograph belongs to the photographer. The ruling, like it or not, is entirely correct. It is plain that the Warhol piece is derivative of the photograph.
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.
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.
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.
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.
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.
While I broadly agree (my view: copyright lifetimes should be more in line with patent lifetimes), most other people who create work - in particular those who create work to help them pay their bills - would disagree.
Fortunately there's a solution for mavericks like me: Creative Commons licenses[1]. While they don't change the fundamentals of copyright, they do offer us the chance to practice what we preach[2].
None of this touches the doctrine of Fair Use, of course. I like Fair Use - as long as the person/organisation claiming it remembers to cite the original work ... something I doubt Mr Warhol bothered to do.
Iy's easy to lay it all at the feet of Disney. But, yeah, there are plenty of relatively small-time writers who support their families by cranking out some genre fiction book once a year (or whatever) who aren't all that anxious to just casually cut off some level of already modest back catalog sales.
I don't care for myself. My writing translates into money through other paths. But there are a fair number of people for whom writing is their primary income source and it's not a huge one as it is.
>> If the ruling comes down on the side of the photographer there's definitely a chilling effect on the creation of new art.
I actually think a ruling in favor of the photographer will favor creation of new art, because artists will have stronger protections. Warhol could have just taken his own photograph and there wouldn't be any argument to be made.
> To me, the Warhol images are substantially different - the only common element is Prince's features, and presumably that likeness belongs to Prince, not the photographer.
Depends on if Prince signed off on a model release.
> Fairey sued for a declaratory judgment that his poster was a fair use of the photograph. The parties settled out of court in January 2011. In February 2012, Fairey pleaded guilty to destroying and fabricating evidence showing that he had used the photograph; in September, he was sentenced to two years of probation, 300 hours of community service, and a fine of $25,000.
Very similar, and more unfortunate for fairey than tfa. He is a graffiti artist, so there is that in regards to illegal art. I've seen him speak to Warhol's archetype before, and he resented the copycat nature of it pretty clearly. I think that is a bit ironic.
Two points:
1) This goes back to the assessment that "the object" is not "The Art", it is the totem that represents the cultural milestone of The Art's creation date and position in cultural time and location, and "The Art" is The Artist proclaiming a vision/perspective they share to others. This is part of the reasoning that allows extremely similar works of art to be designated as unique - they are milestones for different cultural points in history and different intellectual perspectives.
2) 40 years ago, I dated the daughter of a major art collector; he owned the entire collections of a few major artists. He commissioned Warhol do to a Jean Cocteau portrait. Girlfriend's dad expresses anger one day, as Warhol is weeks late on his commission. He takes he daughter with him to Warhol's studio to complain, and upon return expresses utter disgust with Warhol and his process. He returned with the portrait, Warhol made it in 15 minutes upon Dad's arrival and complaint, seemingly with zero forethought. A Cocteau series followed, but GF's Dad was completely uninterested in Warhol after that point, calling him "an advertiser".
IMO, Warhol's fame and artistic perspective is exactly like P.T. Barnum, Warhol simply proved “There's a sucker born every minute” is also true for serious fine art. And that transference of suckers existing in the world of Fine Art, transforming their "foolish art" into "Fine Art" is Warhol's Art.
I think the take away here is you draw someone famous move the hair, rotate the head so the source can’t be determined.
If the source can be figured out it’s probably too close.
After Prince's death, Vanity Fair Magazine purchased an image rights license to run the Warhol painting on it's cover.
The original photograph was, at the time, also available for license.
Goldsmith argued that Warhol's work was commercially competing with their original photograph.
Note that the context was not space on gallery walls but the cover of a magazine, and there was not a question of whether the cover of magazine constitutes fair use...I mean the Warhol foundation would almost certainly have sued if Vanity Fair had used the Warhol image without a license.
To put it another way, the case is not about Fair Use directly, but about competing image rights. I mean, since nobody is going to confuse a magazine cover with an original Warhol, for the Warhol Foundation's fair use claim to stand, then Vanity Fair's cover would be sufficiently transformative to constitute fair use.
Not that there'd be anything wrong with that. Warhol's been dead 25 years. Seems like enough time for the works to be in the public domain, to me. YMMV.
[1]: The Atlantic seems to have given up on journalism in recent years...Jobs bought it in 2017.
The competition you mention is directly part of fair use, specifically the fourth factor: Effect of the use upon the potential market for or value of the copyrighted work. https://www.copyright.gov/fair-us
Do images of soup cans or thoughts of fifteen minutes of fame come to mind when you’re viewing the Goldsmith photo?
Both Warhol’s works and Vanity Fair can be seen as celebrations of, well, celebrity vanity.
What I’m getting at is that it seems Vanity Fair chose the Warhol for the cover because it means something very different than the original photograph and that Warhol’s baggage could easily be what the editors needed for the intended effect.
Thanks for posting this, it was an interesting listen. The fact that every track exactly copied the improvisations rather than improvising around the tune (which I did not expect) says something about the merit of the photographer's argument, though. Although it doesn't say any more about it than the fact that the compiler got permission from everyone beforehand.
It's a separate work from Kind of Blue only to the extent that a different mix or running the tracks through a distortion pedal would be.
The argument in this piece is a classic example of slippery slope-ism. The question of fair use, or of balancing between copyright maximalism and copyright minimalism, is a so-called line-drawing problem (given a spectrum of cases, deciding where the line of “ok” vs “not ok” should be). The article says that ANY decision in favor of the photographer/against Warhol would basically ruin fair use doctrine.
This proposition has barely a hint of truth in it. Especially considering how clever lawyers, SCOTUS justices included, can be in distinguishing one case from the next.
What about the model? Presumably Prince gave permission to be photographed (if he was in Goldsmith's studio), and it is always assumed public figures (and anyone) can be photographed in public without permission. But if the work generates significant revenue, how come the model is never entitled to fair compensation? If I was famous, or it seemed inevitable I would be, is there no way to use my natural rights to my likeness and sound of my voice to protect my investment (or privacy)? And of models that do generate significant revenue from their likeness, shouldn't their parents (and grandparents, and estates of great grandparents, etc. ad infinitum) be permitted to sue for a portion of the profits? What about the living subjects of songs?
The point is it is hypocritical to screw the model or human inspiration of the art, or owner of an animal or plant or object that is the inspiration, for the benefit of the art and whomever happens to own it. If you paint me and the painting sells for millions, or write a journalistic piece about me and millions of copies are sold, I want a piece of that, and I think I'm entitled to it, but more so, I want to use my copyrights to my likeness and name as legal deterrent to protect my privacy and prevent bad (or good) press.
Don't look at me, because you're necessarily reproducing my likeness upside-down twice in both your eyes and in your brain, and if you do look at me, you owe me fair compensation, because once seen I cannot be unseen. And stop reading my comment, because it belongs to me. Don't even think about quoting me without permission under threat of litigation.
It's a little hard to tell if and how much you are being sarcastic. I don't see how people could expect payouts for just existing. You are already getting plenty of (often unseen) services and benefits from society, and you presumably pay back taxes to more or less get even. Fame already brings many benefits and opportunities by itself. Some people are famous against their will and I am sympathetic to that issue, but this is a wholly different discussion.
There is an argument that you might work to look a certain way (clothes, makeup etc.) for some professional reason, but then do it on a private property if you want to stop people from photographing you. Otherwise you're just grabbing public space for yourself unilaterally. Note that I made a similar critique of modern copyright in a recent thread, so I'm not really advocating for privileging artists over the objects of art.
> I don't see how people could expect payouts for just existing.
I don't see how people could expect lifetime payouts when other people copy a photograph, but everybody has blind spots in their ability to empathize and understand other people's positions.
it works that way in film, doesn't it? actors get compensated for their contribution, not just directors and camera-operators, so models in a photo or painting should be compensated just as well.
Professional models typically are paid. (And top fashion models can get paid very well.)
But that actress probably wants to be on that Vanity Fair cover shoot. And people who are famous in general for things other than modeling also generally want to get their photo taken by well-known photographers.
People do have rights to their images being used in marketing and advertising materials. I can't take a photo of you on the street and put it in an ad without your permission. But, no, you don't generally have rights related to me taking your photo in public and making a poster of it or otherwise publishing it. (In the US.)
> Professional models typically are paid. (And top fashion models can get paid very well.)
There's not many signed and professional fashion models, about 3600 in the US, 112K globally. The top 10% earning models average over half a million a year, and a tiny handful make millions. In general, fashion models make about $70-$100/hour, but few, if any, can work full-time hours.
But that isn't what I meant. The most expensive photograph in the world is currently "Le Violon d'Ingres," created by Man Ray in 1924. It was sold in May 2022 by Christie's of New York for $12.4M. It is very likely that the model, Alice Prin, wasn't compensated since she was in a relationship with Man Ray and living with him when it and many other portraits of her were created. Whomever Prin's living descendants or relatives are, as executors of her estate, should have a right to sue the Man Ray Trust or whomever sold the photograph or Christie's, and likely all of them, for a portion of that sale.
Does anyone the think the Associated Press gave Phan Thi Kim Phuc (Napalm Girl) any compensation for the amount of revenue and profit generated by the photograph, "The Terror of War?"
At some high level, actors are no longer just paid a base amount, but are entitled to percentages of total profits of ticket sales and even sometimes a percentage of the post-release video market. That seems fair. I've never heard of a model getting a percentage of the revenue of a photographic piece.
Programmers and software engineers, by and large, are in the same situation as fashion models. They sell their time and, without compensation, give away any copyright to their work. I, for one, think they should get a piece of the total profit.
Now taking step further. Should tool makers get part of the profit made by those tools?
And if we apply that to programmers. Should the person who assembled or packed the computer developer did his work on get part of the revenue developer makes by using this machine? Or with phones from revenue generated by made phone calls?
> Should tool makers get part of the profit made by those tools?
If they invented the tool, they can have a patent.
Individuals are not tools, and I don't see how the tool acquires copyright. Models own the copyright of their likeness, and technically, coders own the copyright to their code, right up until they give it away for wages already compensating their time, using the same coin to pay for two different things of value. Granted, a lot of portions of code are copied, but any novel code written should be copyrightable.
If there was any money to be made in distributing a recorded phone call, then the participants should be compensated out of the total profits.
They have personal rights, publicity rights, and moral rights... but they do not have copyright. The copyright is retained by the person who took the photograph or painted the portrait.
> It’s happened yet again: another copyright infringement lawsuit involving a celebrity posting an image of themselves without permission from the photographer. This time it’s Miley Cyrus who is in the hot seat, for sharing an image of herself on Instagram without licensing it.
It is, of course, absurd that we do not own our faces or likenesses. That needs to change without outlawing cameras, photographs nor photographers. Since it really is very difficult to determine who created more, the copyright should be shared evenly, and any sale of copyright and waivers should be banned. I don't think it would be all that bad if copyright was permanently owned by the original holder(s). This would eliminate speculators getting rich off someone else's sweat.
we actually do own our likeness to a degree. at least in germany i have the right to control how images of me are published. in particular it protects me from being portrayed in a demeaning way. there are exceptions depending on the circumstances, but generally any publishing requires my permission. i believe similar rights exist in many other countries.
what's missing is a right to get a share of the profits. a shared copyright could help with that.
If the title chosen by The Atlantic author is so objectionable that HN submitter/moderator must change it completely, then why not find a different source with a more agreeable title on the same topic. There is no shortage of articles on this case from a variety of sources.
Alternatively, HN could include both the author's title and the "HN title" in its HTML but only display the HN title.
When I extract URLs from HN HTML I tend to ignore the titles and this is one reason why.^1 I am interested in objective identifiers. HN can change the title, but it cannot change the URL.
Someone searching HN by title for an article from a particular publication may not be able to find it as easily as they should. Similarly, someone browsing all submissions from a particular source, looking for a particular title may miss it because the original title has been editorialised.
1. When I retrieve www search results into a custom SERP format, I actually drop everything except the URL. I never see "objectionable" titles.
I agree that asking permission is just good manners.
Thing is, Warhol's entire output is based on copying; not having obtained permission is a large part of the point. I'm no art critic - I'm a phillistine - but I think one way of interpreting his work is as a commentary on copying.
One of the amici in the case has a poignant example of how insane fair use. In their brief (https://www.supremecourt.gov/DocketPDF/21/21-869/227996/2022...), on page 28, they have the example in the case in question (which the 2nd Circuit ruled was not fair use), as well as another example from another case... which the 2nd Circuit ruled was fair use, and reaffirmed that it was fair use in the question. Despite the transformations in the two cases being almost identical.
My gut reaction looking at it is to judge the quality of the art but that isn't really the point. We shouldn't only defend "good" art. So that does get into the fact that fair use is a "doctrine" and so it harder to quantify. Would anyone confuse the photograph with Warhol's version? No. Warhol's look was so distinct that regardless of the photo used, it still looks like a "Warhol." So on that grounds I would say it is a transformative work and therefore fair use.
The author argues that it would be okay to object to what Warhol has done if it were already well established that what he did was a violation of fair use, but that it can't already be considered well established because otherwise there wouldn't be a lawsuit about it.
But there are plenty of instances where clearly established precedents nevertheless require lawsuits for their enforcement.
It’s interesting because Warhol’s style is so iconic, that it almost feels like the rules should be different. You can’t look at the transformation in a vacuum, rather it involves injecting his entire artistic history.
I think that’s a bad reason - it essentially says that if you’re famous enough you can get away with whatever you want. The legal precedent of this would serve to protect established artists and punish less well know or up and coming artists.
I think things are at the point where having more clarity would be more helpful than having a bunch of settled cases with no clear precedent, because they were too expensive to litigate.
I don’t know who’s right here but copyright constantly stops me from creating art.
I would probably only hang it on my own wall or sell 25 copies in a cheap zine but I’m terrified someone will sue me. So, I don’t create art that I envision. Maybe the world is better for it; maybe it’s worse.
One of my recent art projects was to create a series of images in the CGA palette of the 1980’s but using images of modern technology. It would probably end up very similar to this example. I’ve spent tens of hours trying to perfect the look I wanted but I abandoned the idea because capturing my own images is impossible in some cases that I can imagine.
The problem is that this is a purely subjective issue, there is no objective test you can apply to determine whether or not something is a fundamentally original work or not. Even within this thread there are disagreements about if Warhol changed the image enough. Eliminate copyright, period.
The correct incentive to create intellectual property is intellectual currency. Other incentives are perverse and lead to a private entity capping the public well of knowledge to make their brand of bottled water a more compelling purchase.
America is a declining empire, and it appears to be a law of history that declining empires establish increasingly cumbersome regimes of copyright regulation.
So I must assume that the side wanting to restrict fair use further will win.
> The English version, like a lot of English beer, is older but not necessarily better.
That's unkind. English sterilized bottled or tinned beer isn't "older" than the US equivalent. English cask-conditioned beer is a fresh product, usually made no more than a few days before it's pulled.
Also given how until very recently American beer had a terrible reputation for being watery rubbish. Most of the American beers that make it overseas are still those watery mass produced products.
I'd consider Warhol's work to be essentially a remix. It's clearly different. It has a very different impact. Even though there's no denying where it came from, I doubt anyone wanting the photograph of Prince would be very happy if you gave them the Warhol version instead.
Legally, I expect Warhol to lose, but if he does it'll be because the law is wrong. We absolutely should be allowed to remix one or more existing artistic works into new works, and artists shouldn't be burdened with having to obtain permission to create them (although it's still polite to ask, we shouldn't expect art or artists to always be polite).
Hopefully the enforcement of copyright law, the chilling effects it has on artists, and the negative impact that it has on the richness and accessibility of our culture, will eventually encourage people to push for reformation of copyright law to bring it more in line with what it was originally intended to do.
i don't believe remixing is popular enough for that. personally i think that there is to much junk art out there. (how many hours of video are there on youtube?) and freely allowing remixing will only increase the ratio of junk vs good art. i am not saying that all remixes are junk. it is certainly possible to create good remixes. but if half of all original works are junk, then two thirds of remixes are junk, or something like that.
now, i think that an argument can be made that remixes should be allowed to enable that one third of good remixes, and that the good always comes with the bad, and i agree. but i fear many don't, and would rather limit remixing in order to protect original works.
> i don't believe remixing is popular enough for that.
I suspect it would be a lot more popular if people didn't risk getting dragged into a courtroom for doing it.
> freely allowing remixing will only increase the ratio of junk vs good art.
Remixing has the ability to take bad art and make it better. Most of everything is garbage, but fortunately nobody is forced to be exposed to it all either. People who don't want to spend their time looking outside of narrowly curated selections of available content or what's already gained popularity never have to. All art is built off of previous works, and even if someone creates a work that you hate, someone else may by inspired by that work to make something you love. It doesn't make sense to want to prevent the creation of new creative works out of fear that they might not be "good" in your opinion.
Even if, somehow, it did make sense to hinder the creation of new creative works copyright would not be the tool for the job. Copyright already has a job. Copyright is supposed to encourage the creation of new creative works. Sadly it is currently being used to suppress art and artists, which is why it is broken and needs to be reformed.
There are some people who want copyright to be as restrictive as possible. Very wealthy and powerful industries for example. They've spent a lot of time and money to try to convince us that copyright should be as restrictive and long lasting as possible, but that's entirely for their benefit and not ours. It's bad for art, it's bad for artists, and it's bad for the public as a whole. They've convinced us to muzzle each other and lock up our own culture so they can increase their profits. The longer it takes us to fix that, the more great art we lose.
>I suspect it would be a lot more popular if people didn't risk getting dragged into a courtroom for doing it.
Well, talking about the popularity of doing remixes..
A game developer and artist in japan allowed a free-for-all on his IPs, basically people can do whatever they want to do whether it's remix his games soundtracks, make games inspired by his or write stories about his games and the amount of content generated is just staggering. Over 100 000 songs have been released in physical CD format in official Japanese conventions, and many more not counted in other countries or in digital-only forms. In the case of music, there's covers/remixes/more creative interpretations done in pretty much any genre imaginable. Here's some I've enjoyed:
>Remixing has the ability to take bad art and make it better
Although I wouldn't call the original touhou soundtracks 'bad art', they are flawed creations: Zun is good at creating catchy melodies and overall composition, but the quality of the instrumentation is poor (mostly Roland SC-88 and Edirol SD90 presets, not the most musical of sample based synthesizers IMHO. Of the early sample technology, the mt-32 and D50 are more interesting than the sound canvas series) and the fans have taken something that had potential and turned it into things that are worth listening to standalone.
Art really comes down to two things: content and style.
Warhol’s style is definitely defined, it is copied all the time, and odds of a court enforcing the estate’s rights to that style are zero. Regardless of if he’s paid for it, no one will ever be able to take that from him — not even the American Supreme Court.
The photograph referenced in the case is not an original work of art. Photographer happened to get access to a celebrity and took a photograph that if combined with 1000s of other photographs by photographers on the same day of the same celebrity would not be distinctive — it literally deserves no protection.
Warhol, if alive, regardless of the outcome in court would have produced even more meaningful art based on the experience, which would have enriched the world.
The litigant in this case, unless case is thrown out has literally contributed nothing, deserves nothing — and if America rules in their favor, that is exactly what Americans deserve too. The litigant, if remembered, will not be remembered as an artist, but as the troll they are.
Ironically, the image you linked completely disproves your point. The derivative work is identical to the point that it is an obvious copy. Warhol should absolutely have sought permission, especially since he and his estate have profited handsomely from the copy.
It’s worth noting that this particular Warhol piece was done much later in his career after he had established his style. Usually he didn’t even execute the work, it was done by assistants in the studio. This painting of Prince is an example of Warhol as art business — which incidentally was one of his statements as an artist.
Opinion: bout the photo and the painting are actually not very good representation of either artists work. I imagine both the photo and the painting would be considered unimportant if it wasn’t for this legal wrangling.
There are many ways that this issue could be approached. For example, could Warhol be allowed fair use in execution but, post-mortem, his estate pay? After all, one thing that the author of the article did not go into is that this argument is really no longer about the creative act.
Despite your emphasis, I don't find that anything has been "obvious" or "proven" about these pieces. The fact of the ongoing lawsuit implies it's not definitive for the authorities involved either.
If you see it so clearly, it's because you're uninformed about or otherwise disrespectful to the actual social norms/rules at play.
But you don't know whether you will profit or not before you make the work. And asking for permission after the fact is too late and might even weaken your fair use case.
I should retract the part about profiting, but it's there because, undoubtedly, given Prince's iconic status even at the time, and Warhol's reputation, it has a bearing on the outcome. Ultimately the moral thing to do, artist to artist, would have been to seek permission.
This is an argument over not fair use, but transformative use. How much transformation of an old thing has to take place before it's a new thing? That's very much an issue now, because ML systems have become very good at transforming old things into somewhat similar new things.
Classically, such transformation was a lot of work. A standard art-school exercise is to hand-copy a classic painting. Possibly with variations. Because that's quite a bit of work, it generally hasn't raised serious copyright issues. Now, though, it's very easy.
Much music litigation revolves around this. There are only so many note patterns that sound good. Someone has generated all 69 billion possible 8-note melodies and released them into the public domain, just to mess with any claims of melody originality.[1] Images are a bigger space, though.
[1] https://www.theatlantic.com/technology/archive/2020/02/whats...
Let's not forget also about Library of Babel (https://libraryofbabel.info/) which includes all texts ever written and that will ever be written up to 3200 characters. I truly wonder how that website is allowed to exist and why they don't claim copyright for every other website that has been created since.
BTW, it also includes all images: http://babelia.libraryofbabel.info/
Does it truly contain all these texts? It seems more like it can generate any of these texts, but they are (obviously) not pre-generated and stored anywhere.
If we consider only lowercase non accentuated English characters and a few additional basic chars (space.,? etc), let's say 30 base characters, we are looking at 30^3200 combinations. Which is a number made of 4727 digits. Estimated number of atoms in the universe is 10^80. So basically nothing compared to this 30^3200.
Them claiming copyright over this would be a bit silly as the texts don't truly exist but only have the potential to be generated.
Would the situation change once someone can store all these texts? What if they can compress them efficiently? You could say this is just a sophisticated decompression algorithm of the original body of text.
The site can generate any sequence of text from its alphabet of 29 characters. This means it contains 29^3200 different works.
Let N = log(29)/log(2).
It is not possible to create a compression system where each work on average will use less than N*3200 bits once compressed, assuming each compressed value corresponds to only one work. This stems directly from the pigeonhole principle. What could be possible is to create a compression scheme where say pages consisting of english text can be compressed to smaller (at the expense of pages of random garbage being compressed to longer).
This stems from the fact that the entropy (information density) of English text is much lower the 29 character alphabet space can permit. But you cannot on average have the valid English only pages compress to smaller than their entropy either. You can design the system to favor some works over others, but the average compressed length must be equal to or greater than the average entropy of the works.
And all you have really done here is invent a weird lookuptable table based compression scheme for english text. All other compression systems are also similarly constrained by the entropy of the data to be compressed, but most other scheme don't require an infeasible large lookup table of basically every possible output.
Copyright only protects against copying. Independently coming up with the same thing is not copyright infringement.
What Colour are your bits? is an interesting look into these concepts:
"The scrambled file still has the copyright Colour because it came from the copyrighted input file. It doesn't matter that it looks like, or maybe even is bit-for-bit identical with, some other file that you could get from a random number generator. It happens that you didn't get it from a random number generator. You got it from copyrighted material; it is copyrighted. The randomly-generated file, even if bit-for-bit identical, would have a different Colour."
https://ansuz.sooke.bc.ca/entry/23
but how do you prove that?
seems like in practice it would boil down to whose lawyers are better which is just a proxy for which party has more money.
Do you truly wonder that? Unless someone takes legal action fair use doesn’t take effect. Why would anyone bother to take legal action against them? This is essentially an art project.
Warhol's series on Prince is also an art project, isn't it?
> This is an argument over not fair use, but transformative use.
I’m going to be pedantic, but: as far as US law goes, transformative use isn’t separate from fair use. Rather, transformativeness is a key test used to help establish whether something qualifies as fair use.
Yeah I was disappointed that the article didn't even mention the fair use factors, or discuss how the upcoming case would affect some but not others of them. For reference, these are the four factors:
• the purpose and character of your use
• the nature of the copyrighted work
• the amount and substantiality of the portion taken
• the effect of the use upon the potential market
The whole conclusion is putting forward a speculative chilling effect about a case that doesn’t matter to anybody but attorneys and hacks.
It’s a tired argument and it’s not only lazy but easy to disprove.
Yeah, should probably give up on copyrighting sequences of notes. Copyright the arrangements instead. An awful lot of what makes a song good is the arrangement.
I like the idea, but isn't an arrangement a set of sequences of notes assigned to instruments / voices? Fundamentally, a "documented" sequence of notes? (where a note has a duration, an instrument, a start time, a function defining the dynamic, a pitch (possibly a function), possibly an intent, possibly a part of the lyrics if applicable).
Where to draw the line?
Annoyingly this Atlantic article doesn't have a picture of the actual pair of works under dispute.
Here they are on ArtNet:
https://news.artnet.com/art-world/andy-warhol-foundation-los...
This is similar to the case, which was successful, over the use of a stolen photograph for Barack Obama's campaign. The artist involved, Shepard Fairey, actually was sentenced for his involvement in the case:
https://www.phaidon.com/agenda/art/articles/2012/september/1...
To clarify the above, the criminal charges came in not over copyright but over destruction of evidence and false statements:
> However, criminal proceedings began when it transpired that Fairey lied in the earlier case, destroyed documents and submitted false images. In a statement published following the proceedings, the artist said that he 'accepted full responsibility for violating the Court's trust by tampering with evidence during my civil case with the Associated Press,' before going onto argue that he still believed he had a strong Fair Use case.
Trademark infringement cases can be ruinous, especially without insurance, but it’s civil not criminal.
> Trademark infringement cases can be ruinous, especially without insurance, but it’s civil not criminal.
This was a copyright case, not a trademark case. And if the FBI warnings at the beginning of VHS tapes are to be believed, you can face criminal charges.
https://www.law.columbia.edu/news/archive/obama-hope-poster-...
From this article:
> He compared Warhol’s distinctive silkscreen aesthetic to filmmaker with an easily identifiable style turning a book into a movie—that doesn’t mean the film is no longer a derivative work.
I find that argument compelling.
I don't find that argument compelling at all. Going from a book to a movie is a wildly different (and more involved process) than going from a photo to a silk screen.
So what about turning a person (Prince) into a photograph, by the "mere" use of a technical apparatus?
It's an interesting aspect that we do not allow a model or actor to own the specific posing and/or acting, as this would imply considering any media capturing the performance as derivative work. There's an enormous bias in the system, right from the beginning.
I agree, but under the present system of copyright, the work is infringing.
I think, this can't be handled on a general or universal basis. E.g., in the given case, I don't think that anybody would find a rough line tracing infringing. So, how comes that it's infringing, when the lines are filled by a black ink? Moreover, it's not a perfect copy, aspect and format are different (sufficiently to make this a legal museum copy), texture and color are different, even the outlines don't match. Even more, it seems that it wasn't initially apparent to even Lynn Goldsmith herself that Warhol's portrait was based on this photo. Where's the exact border between "inspired by" and "an infringing copy"?
This case is even more interesting, as the photographer argues that the Warhol's image directly competed with the original photo for a cover of Vogue and that the magazine picked Warhol's image to license. But, this is also a strong indication of the genuine artistic value of Warhol's work/version, since there was a reason that this was picked by the editors over the other one. There is a semantic difference, which was introduced by Warhol.
None of this makes the artistic rendering less of a derivative work. It's clear the rendering is meant to be an artistic take on a certain photograph.
The border between infringing and not is subjective, like many things.
Would a sketch of stick figures erecting a flag pole be infringing with respect to the famous Iwo Jima photo? The reference may be instantly recognized, but still… The only way I could think of this happening, is with respect to this actually being a directed set photo instead of the documentary it's usually deemed to be. However, this (the photo of Prince) is not a choreographed piece, it's rather a collaboration of many factors and skills contributing to the shot.
And, can a consortium of photographers actually own the likeliness of a person, since there are few chances to make a regonizable visual reference to a person without referring to a photo, as soon as the person is dead? So any depiction would be derivative per se, even it it were technically not founded on an individual photo.
Finally, a work may be derivative and even infringing, if it falls into the regulatory frame work of fair use. This is part of the system, as well. What is in question are the exact boundaries of this.
the fact that an article taking Warhol’s side omits the actual pictures is telling
Or the article being printed in a magazine doesn't want to pay the republishing cost for both artworks.
A newspaper copying works for commentary or criticism on said works is like textbook fair use though.
It is. It's also works in the middle of a legal dispute. I'd guess The Atlantic's lawyers nixed their use "out of an abundance of caution." If you get pulled into a legal dispute--even if you think you're on firm ground--you'll still be out a lot of money for lawyers.
Presumably, Atlantic has staff lawyers that would handle any legal case.
Companies mostly don't just have spare lawyers sitting around waiting for work to come in. Furthermore, if something were to go to court, outside counsel would likely get involved in any case. So, yes, there are costs associated with law suits even if you have some in-house staff.
Wouldn't use of the works be fair use, but use of the photographs of the works require publishing rights?
Not for use for commentary as long as they don’t threaten the market for the originals (as in super duper exact high res vs a couple okay thumbnails to show the comparison).
That seems incredibly transformative and especially since it would be part of a collection of many variations on the Prince print and displayed as such, playing with the idea of mass production and celebrity. Warhol’s art is like a meta-layer above celebrity photographs.
How is that transformative? It's just a copy of the photo with some level adjustments and background colors. Takes about a couple of seconds to reproduce in your favorite photo editor.
I find it transformative because I know about Warhol, his art practices, and the context with which he worked.
These works were made in one of his “factories” and were always a part of a larger series. The works were not made in a computer. They were very large screen prints.
To me how they were made and why they were made are just as important as the finished product.
One of my interpretations of Warhol is that celebrities might as well be produced on a factory line!
> I find it transformative because I know about Warhol, his art practices, and the context with which he worked.
In other words, you feel that the Warhol piece is transformative because it was Warhol that made it and not because of the inherent properties of the work itself?
When dealing with celebrity artists like Warhol, who made the art is always 99% of the story, 99.9% of the value at auction. You'll never get the art fanboys to admit this, because part of the game is pretending to see something special which puts them above the mere plebeians who can only perceive the mundane (who call a spade a spade.)
It isn’t because Warhol made it (in fact, his employees probably did most if not all of the work) but the context.
It means something different to make many large silkscreen prints than it does to apply some filters in Photoshop.
The ends don’t justify the means, it’s the journey not the destination, etc, etc.
I understand that when presented with a digital image that the original context is missing so I’m not upset with anyone who has another perspective!
We have lots of examples of this on music, where the same melody reproduced for only a few seconds by a different artist on different instruments in the context of a different song, is still a derivative work.
A different artistic context alone usually isn't sufficiently transformative.
And yet for some reason when I silk-screen a bunch of Tad Nugent t-shirts and sell them outside his concerts, it's not considered fair use.
That’s a trademark and not a copyright issue.
You should instead be selling Grateful Dead t-shirts as they have never enforced their trademark!
It's also a copyright issue if the artwork is not owned or licensed correctly.
If you drew the image yourself, and didn't derive from a copyrighted work, and then printed that, then it's "only" a trademark issue.
It's a reference to an episode of That 70's Show where they do rip off the design of a Ted Nugent tour t-shirt.
Punchline of the episode is Kelso spelled Ted Nugent wrong on the shirts so the boys get away without penalty.
These works being made in one of his "factories" makes it feel less transformative to me, not moreso.
Doesn't seem like much artistic value has been added when you take a photo and silkscreen it 16 different ways with slight variations.
The photo itself is "just" a copy of a physical scene with some level adjustments. Would have taken about one tenth of a second to produce with your favorite camera.
Copyright is framed such that the subjects of photographs generally have no claim to the resulting image. Why should the photographer's claim be absolute?
(And just for reference, I say this appreciating the work that goes into taking a good photo)
The problem, legally speaking, is that this is almost the exact same fact pattern as Rogers v. Koons, in that the photograph itself was not being commented on, so parodic fair use isn’t a valid defense.
Here’s an example of Warhol in situ: https://www.diaart.org/exhibition/exhibitions-projects/andy-...
I’ve been to DIA beacon (one of my favorite museums). That large scale installation is kinda remarkable but not typical of Warhol’s art I’ve seen in other places.
Which is unfortunate because the kinds of large scale installations at DIA Beacon are how the artists originally conceived of their art! Most of the artists featured there also have some out-of-context work sitting in a wing of another modern museum somewhere.
This is mind reading at a distance. You know nothing about GP’s state of mind.
Art is in the eye of the beholder. I choose to accept Warhol’s gaze and I find it rewarding. His exposition means something different to me than the original photograph.
I agree that Warhol has done something different, but it's entirely derivative to the original image, I can't see how there would ever be a question of whether he copied the image, he did.
For Fair Use one asks if the copy is transformative, ie for a different purpose to the original, but it clearly shares the purpose of representing Prince.
[Outside the USA, where we don't have Fair Use, this presumably would be tortuous infringement.]
But Warhol did not intend to reproduce Prince. He intended to mass produce images of a celebrity in one of his “factories”.
We could discuss reproduction as a vibe, but it's easier and more falsifiable to discuss it as taking a photograph of a work, separating its colors, using those color separations to create plates (whether physical or digital), and using those plates to direct the application of dyes to a surface.
We can't deny that Warhol both intended to do and did that to the photograph.
> it's easier and more falsifiable to discuss it as taking a photograph of a work, separating its colors, using those color separations to create plates (whether physical or digital), and using those plates to direct the application of dyes to a surface.
You can't determine whether a usage falls under fair use just by looking at the end product without considering the intent though.
“No your honor I did not steal the painting off the gallery walls. I made a performance art piece, a derivative work, about art theft.”
Awfully convenient eh?
Copyright infringement is not theft.
A video of someone stealing a piece of art from a gallery does not infringe the copyright of the art being stolen. It is still theft, though.
And this is the reason for fair use! It is quite clear to me that Warhol is presenting these images in a profoundly different manner than the original. A copyright regime without such an allowance would deprive people like me of an aesthetic experience.
You have a choice with someone like Warhol. You can feel something or you can feel nothing. And yes, most of this is a personal choice, a matter of faith, a matter of letting yourself enter into the world of the artist.
Or don’t! Just look at this art and say “this is terrible” and “this is theft” or any number of other negative emotions.
It’s really odd to frame such a dispute through the lens of whether it gives you enjoyment or not. A stolen Van Gogh would give the thieves’ house guests plenty of aesthetic pleasure otherwise unavailable as well.
I don't think that's what they are saying. I think what they are saying is that we should try to construct laws to maximize net utility for society and this is an example of where net utility would have been deceased if Warhol wasn't able to make his parody paintings.
The imperative to “maximize net utility for society” would yield so many wild results that this question would be rendered well beyond pointless.
In any case, I believe that the negative utility created by no original artists producing work because people like Warhol rip them off and mass produce (not to mention the [IMO] negative utility of distorting society’s expectations of art and artists) would far outweigh the utility of someone enjoying a slightly distorted version of an original piece.
So even if that were society’s imperative, it’s not at all self-evident Warhol’s actions are positive utility and should be accepted.
To anyone persuaded by this argument: consider that net utility could undoubtedly be increased by any number of redistributions of your net worth. In fact, it would arguably be easier to make this case than the one for the work in question.
If the Warhol Foundation wishes to make this utility argument, it should first put all Warhol’s work into the public domain.
And if Warhol and his fans value the experience, they can pay for the use of the image.
"art is in the eye of the beholder" had nothing to do with copyright. That fact that it means something different to you is not relevant. Actually it is, and it implies that copyright is still necessary.
That's a verbose and roundabout way of calling yourself a fan, friend. :)
I can’t believe their editor let this article ship without the images. That’s 101 stuff.
it's also informative. warhol foundation, was the one suing the photographer
I think both sides are right, and that this is another example of why copyright is not a good abstraction. It ultimately doesn't make sense because the way we learn how to do things is by imperfectly copying each other. Being successful means to successfully produce a stylish, architectural variation of combinations of fragments of things that you've seen before.
Part of the quality judgement on a work is in the nature of its comment on what has come before. This is whether you're putting on a play, designing a skyscraper, or designing the API to a website that keeps track of people's coin collections. If you fail to stylishly or profoundly reference things that have come before, your art is probably bad.
edit: and by "I think both sides are right" I mean that I think the pieces of art are completely different to the point of barely resembling one another, just the shape has been retained. I also think that the photographer contributed as much to the work's construction as the artist, and deserves as much of the profit and say in the decision-making about how it is used. And I should use collective pronouns for the artist, because Andy Warhol likely just told somebody to paint on the photograph, and suggested colors, then approved the best of 10.
> I think both sides are right, and that this is another example of why copyright is not a good abstraction. It ultimately doesn't make sense because the way we learn how to do things is by imperfectly copying each other. Being successful means to successfully produce a stylish, architectural variation of combinations of fragments of things that you've seen before.
Making copyright last 10 years only sort of solves this issue.
I sometimes wonder: why do we so badly want artists to be able to make a living of their work?
Don't we want art that is pure and that is made by people like us (when we are not trying to make money), instead of by people who live in some completely alternate reality?
Copying has been a thing since the beginning of evolution. I'm ok with people making money through selling art, just don't bother me with human-made laws around copying.
Professional artists add both skill in the mechanics of art production and analysis that takes a broad view of art and culture. Can we manage without professionals? Sure, but --excepting some edge cases-- we'll miss out on a lot of cultural reflection and on a wealth of artwork.
To my personal view, copyright is a good idea at the 7 year/14 year terms originally envisaged. Beyond that it becomes more of a harm to creativity and artistic cultural progression.
However, you do need to protect individuals from corporations. If I submit a book to a publisher, they say "no", then they hold it for 14 years and decide to publish it ... I'd still want to be protected. Visual artists, painters say, often become popular later in their career; should commercial interests be able to exploit that lag to sell the person's earlier work without the person getting reward?
I believe copyright term typically starts at the first publication, not when the work is created, so a work that was submitted to a publisher but never published would still be protected no matter how long the publisher waited.
Copyright applies from creation: an unpublished work is still protected, although proving its origin will likely be easier following publication. The US Copyright Office summarises it as:
The law automatically protects a work that is created and fixed in a tangible medium of expression on or after January 1, 1978, from the moment of its creation and gives it a term lasting for the author's life plus an additional 70 years.
https://www.copyright.gov/circs/circ15a.pdf
> If I submit a book to a publisher, they say "no", then they hold it for 14 years and decide to publish it ... I'd still want to be protected.
When I originally licensed my Empire game back in the 80s, I put a clause in the contract that if they didn't put it on the market within so many months, the contract was automatically cancelled and all rights were returned to me. There was also a minimum royalty clause, and a clause against diluting it with bundling.
You don't need the government to get involved.
I don't think your concerns about 7 or 14 year terms are actually necessary:
> However, you do need to protect individuals from corporations.
This is generally true, so much so that I think the only relevant action would need to be general, to protect individuals from corporations generally. Creators would benefit from protection regardless of whether the term is changed.
> If I submit a book to a publisher, they say "no", then they hold it for 14 years and decide to publish it ... I'd still want to be protected.
Presumably a much greater proportion of work would be prepaid (via mechanisms like the built-in ads on youtube videos) or self-published. Although they continue to add value, publishers are much less necessary at the moment than previously (as we can see from independent podcasts). The marketplace and output might be completely different if there are short terms, but it will not lead to a collapse in production or a failure to remunerate artists.
In any case, the authors of copyright material are not presently engaged in free and equal relations with corporations. If nothing else, a corporation is generally able to sue you, whereas you're generally not able to sue a corporation. And a corporation will write contracts that regularly get tested in courts and get tweaked and improved, whereas you will rarely write contracts and you will rarely have opportunity to improve them based on problems.
> Visual artists, painters say, often become popular later in their career; should commercial interests be able to exploit that lag to sell the person's earlier work without the person getting reward?
This doesn't happen because their work obtains some additional quality through the passage of time, as though it were a wine ageing in oak. It happens because of the reputation of the artist; by buying the work, the owner has some kind of a relationship with a well reputed person. If anyone is selling a print, the print that is personally authorised by the artist will have a higher value. Therefore, I would suppose this isn't a problem that needs to be fixed.
None of this means that everything would continue just fine. Reducing copyright to a few years would be revolutionary. It would result in actual cultural changes. For instance, right now you can use copyright to create artificial scarcity that lasts essentially forever. With a seven year copyright, the artificial scarcity only lasts a few years, so you need to make the most of it. That means that oldness is free and recency is expensive - a reversal of the current system (where oldness is expensive, because it costs more to get something that last a long time, but recency is cheap)
> In any case, the authors of copyright material are not presently engaged in free and equal relations with corporations. If nothing else, a corporation is generally able to sue you, whereas you're generally not able to sue a corporation. And a corporation will write contracts that regularly get tested in courts and get tweaked and improved, whereas you will rarely write contracts and you will rarely have opportunity to improve them based on problems.
I'm sorry to say this, but this is (from my personal experience as a one man company dealing with corporations) complete and utter baloney. Including suing them.
I wrote my own contracts, and lawyers who looked at them later said they were pretty good, though I probably would have been smarter to use the lawyers in the first place.
There is NO REASON WHATSOEVER that would force you to accept terms from a corporation that YOU DON'T LIKE.
Just say "NO".
And yes, I have successfully sued a major corporation you've all heard of for cheating me out of 6 figures of royalties. I won't name the company because this was settled long ago. It was so blatant that my lawyer took it on contingency.
Ordinary individuals can and do successfully sue major corporations all the time. All you need is a solid case.
It is not about art per se. Art happens to be covered under the same umbrella that researching medicine, writing software, drawing schematics, etc.
When the initial cost of production is very, very high and the marginal cost of each additional unit very, very low, copyright is the solution that has so far been found to “work” to incentivize investment- assuming you agree it works. Not that the current implementation is best, especially the length, but the concept.
It probably also gets favoured because it tends to fit into the Western mindset of "bottom-up" and "self-bootstrapped" decision making.
An alternative, for example: we could take the same amount of money being spent on creative works, absorb it through taxes instead, and redistribute it through a state-managed endowment system. The amount of money we spend for one Mick Jagger would probably fund quite a few musicians with a 70k/year stipend and an obligation to perform shows/generate recordings/etc.
But to pull that off, you'd need some sort of formal arbitrator to decide who is "enough" of an artist/scientist/etc. to qualify for an endowment. I know there's a very strong attitude of 'you can't regulate what art is', seemingly used to justify charging seven figure prices for products that look suspiciously like they were fished out of the local preschool's recycling bin.
If copyright laws were removed, would we still have movies that cost $200 million to make? Probably not. Do we really need them? Not really. Cheaper movies would still be made, though.
I've seen a lot of low budget movies that were better than the $200m ones. I don't need special effects to enjoy a movie, I need a plot. Check out "Dark Star", made for $50,000. It's far, far better than 95% of the scifi movies out there. Because it had an interesting plot. "Primer" is another example.
Surely the people that made Primer appreciate that they were able to get some compensation due to anyone not simply being able to copy and distribute it?
Otherwise, what is the incentive to do all the work and take the risk to make Primer if it is just going to be on YouTube for the benefit of Alphabet’s ad revenue?
Youtube hosts a billion videos where 99.9999999999% of the creators had no hope of recompense. The same goes for books and music.
Here's a good reason: the movie itself is an advertisement. For example, Michael Jackson hired a famous movie director to create his music videos. What where those videos for? Advertising for his live concerts which were huge money makers.
And 99.999999999% of YouTube is not worth my time. Quality takes effort and talent, and putting a carrot at the end of the stick makes sense to me to incentivize expending effort and developing talent. Especially for media where the probability of success is very low.
Movies might be advertisements in conjunction with just being a movie, but the creators’ multiple intentions do not seem relevant in this case.
The "advertisement" in the movie may be simply promoting the careers of those involved in its production.
For a related example, my dad wrote a book. The royalties were well into "not worth it", but he wrote the book to advance his professional prestige, and it worked for that.
Most authors of technical books, for example, fall into that category.
A director might want to make a movie to raise his market value in producing media for corporations, who have a constant need of such. Actors will do it for free just to be famous, which leads to all kinds of opportunities. Just look how the Star Trek TOS actors made a living off of their fame, and ST was a really low budget operation.
This assumes that without copyrights, they couldn't get any compensation. However, even today, there are plenty of ways to make money from a creative work.
Eg. Product placement, patronage, or a subscription service
>I sometimes wonder: why do we so badly want artists to be able to make a living of their work?
Because art takes time, effort, practice, talent, and the cost of materials. If someone produces something of value, they should be paid for that value. In order to produce art, the artist needs a roof over their head and food in their stomach. As a society, we value it enough to spend millions on it every year.
If you want art made by "people like us", buy it from them. If you don't feel like there is value in work by people who make their living painting or singing, don't buy it.
If you want people to do it for peanuts because that means they're passionate about it, that just shunts them off with teachers, CNAs, social workers, park rangers, and all the other folks doing difficult and demanding work where their compensation doesn't even begin to reflect their effort and the value they bring to society. But they should shut up and smile while they do it because they're passionate about it.
Since I love art, I want dedicated professionals devoting their lives to making it.
They produce so much better art than even equally talented people doing it in their spare time.
Ok, so you find an artist that you like and (perhaps together with some other fans) pay them a salary.
No need for artificial constructs like copyright law.
Because the same laws that protect the artist with copyright also protects the code that I write as a hobby or release under an open source library to ensure that improvements to my code come back to the library.
Without copyright, GPL and its deracinates have no leg to stand on to prevent it from being incorporated into closed source programs and forever locked away. Sure, you'll be able to copy the application without copyright protecting it, but you'd be unable to modify it. It would be the success of the free part at the cost of the libre values.
Art (culture) is a huge industry. Why shouldn't artists get some of that cheddar? Especially since artists are the ones creating the art.
It's just basic fairness.
Well, having the opportunity to make a fantastic amount of fame and money and live a bohemian lifestyle is part of what makes art so alluring to potential artists, many of whom would never pick up a paintbrush if they knew that this path led only to penury.
Art would be lesser if only wackos, hermits, trust-fund kids and ascetics were able to pursue it.
Some one will use free art to make money and none of it will go to the artist without any sort of protections.
I've wondered the same thing at times. I eventually came to the conclusion that there are intangible things that society values and must create (concoct) laws to protect the ones that are much too easily subvert or bypassed in ways that effectively remove the valued thing from society.
I'm not sure it's the best analogy, but I considered the protections given to real estate agents as something similar. Why can't people just go negotiate directly with the sellers? I won't go into all the obvious details but there's real work back there, just as with art, and the end result isn't protected very well on its own, hence the need for laws, even silly sounding laws.
As someone who was once paid to research the history of the NAR for the NAR, the answer is lots and lots of lobbying.
That seems plausible too, and also lines up with what's happened to copyrights in the US...I can't speak much to real estate, but I'd say copyright went way overboard.
> Why can't people just go negotiate directly with the sellers?
They can, unless the seller enters into an exclusive contract with a real estate agent.
https://en.wikipedia.org/wiki/For_sale_by_owner
True - I meant the unethical-but-mechanically-possible act of having someone show you the place, then being a jerk and contacting the seller directly.
edit: to be clear, I don't condone that at all, I just mean that's what I considered in thoughts about why we need laws that cover such things.
Not to contradict you, but it was my understanding that modern art--looking at you, Hunter Biden--is substantially a publicly visible form of money laundering.
Warhol could have simply asked to use the photograph. If the photographer declined, he could find another photographer and another photograph and seek permission.
However, if there was something so special about that particular photograph that compelled Warhol to use it even without permission, then the argument that it was a ‘generic’ Prince photo falls apart.
Or, god forbid, Warhol or one of his minions could have taken their own photo of Prince…
When we learn something to make something (through copying), it's usually not our first idea to sell it. And in this case, Warhol didn't learn anything from Goldsmith.
> I think the pieces of art are completely different to the point of barely resembling one another
I must have read a completely different article.
I'm just going to accept that if I put your urinal in my art gallery, it becomes my fountain. I'm going to accept that because I enjoy it, and because that is the consensus.
"…"I think both sides are right" I mean that I think the pieces of art are completely different to the point of barely resembling one another, just the shape has been retained."
I think here both sides are actually right in this instance—and I don't disagree with you saying that the images ”barely resembling one another" but I would not go that far (as I think there is a significant recognizable resemblance).
That I disagree with you isn't the problem per se—as it'd be a damn boring world if we all agreed or experienced the same perception—rather it's that in cases like this the judgment relies on a subjective analysis by the person(s) doing the judging and that everyone's subjective judgement is different, moreover, to further complicate matters, such differences are likely to alter over time.
Thus, if courts allowed it, this case could go on indefinitely with no one being adequately served. This is an obvious case where copyright law has broken down and it's clear the law needs to be changed.
It seems to me that royalties ought to be split in this instance but I don't want to get embroiled in a discussion about how the law should be altered as that's not the issue here.
Rather it's that we have to face the fact that current copyright law is broken in many areas and it desperately needs reform to make it fairer and less contentious. It needs more than just a fine tuning, instead it requires major reworking, and for that we need to bring a much more sophisticated and nuanced approach to the problem.
'Fair use' provisions are already under considerable strain by the hardened attitudes of many copyright owners—especially from large corporations, Sony, Disney, Elsevier, etc.—and tightening them further by a precedent in this case would likely have significant negative repercussions elsewhere. If the law is tightened writers and artists who don't have big pockets won't dare risk doing derivative works even if they plan differences that are much larger than those in this case and that will twart innovation (if the law becomes more restrictive then copyright holders are also likely to become more litigious).
There are also other issues that make copyright law unfair such as the unreasonable increases duration of copyright, excessive restrictions on the use of orphan works, the right to copyright works that are only trivially different to works already in the public domain and the absolute rights of copyright owners with respect to licensing—that is that copyright law does not acknowledge those who are in a position to copyright material are also members of society who, in many instances, have developed their talents at public expense (their education etc.) and in return they have some obligation to society (which implies that some form of enforced arbitration ought to be a part of copyright law).
I'm not advocating that rights holders not be paid fair dues for their works—clearly they should, but at the same time they should not be allowed to exploit consumers of copyright material as has so often happened in recent years.
The difficulty with this case is that a fair decision in this instance could likely result in a net increase in copyright restrictions which will only increase the unfairness of copyright law. It's why we need urgent copyright law reform—and that won't be easy given the many complexities involved.
> in cases like this the judgment relies on a subjective analysis by the person(s) doing the judging and that everyone's subjective judgement is different, moreover, to further complicate matters, such differences are likely to alter over time.
I agree with you 100%. My judgement of lack of resemblance is based more on whether I imagine that the same person would want to use both in the same context, not on anything that I think anyone should respect. I just don't think you can draw a line. We need to move to a model where we are openly, explicitly granting and enforcing monopolies on the production of certain works in return for some societal benefit. Not just assuming that society always benefits when monopolies on reproduction are granted.
If we don't want whales to rush in and capture all of the profits when somebody produces a creative work, we can target that situation explicitly, rather than pretending that qualifications for being worth protecting are inherent in the work, rather than a legal construct. A pretension that creates a situation where a defense of the series of disposable Warhols can be to denigrate the photograph that they chose to base the series on. Judges and juries as art critics, trying to figure out how much of Blurred Lines is Marvin Gaye.
"We need to move to a model where we are openly, explicitly granting and enforcing monopolies on the production of certain works in return for some societal benefit. Not just assuming that society always benefits when monopolies on reproduction are granted."
Yeah, right. See my reply to Worldblender, it's my more detailed and pessimistic take on things.
A few of the best places to start such work on would be to focus on reducing the length of copyright terms and generally allowing non-commercial usages, redistribution/copying/similar, and modifications/derivatives. Because I think these two issues don't directly touch on the profit-making aspects, they may be easier to deal with rather than a full-on revamp of existing copyright laws or even abolishment of them.
That said, even these two issues aren't going to be easy to change at first, especially with big companies and some pre-existing laws like from the Berne Convention in 1909 (!) that have to be dealt with as well. All things that I definitely cannot change just by myself; at least we need more people onboard with copyright law reforms like what I said before any meaningful change is expected.
"A few of the best places to start such work on would be to focus on reducing the length of copyright terms and generally allowing non-commercial usages, redistribution/copying/similar, and modifications/derivatives."
I agree with you completely but by far the biggest challenge is to get changes to international copyright/IP law and that's proved (and is still proving to be) extremely difficult to achieve. The only significant changes to the Berne Convention† in over a century have been to tighten copyright provisions. The trouble is that getting changes to international agreements, especially long-entrenched ones such as copyright treaties, is about the most difficult of any law to change. Essentially, such treaties are set in stone because so many countries are signatories to them, and experience has demonstrated that copyright/IP law has powerful backers in almost every signatory country.
Even if, say, one country wanted to make significant changes to its copyright law then the treaty binds it and thus it's unable to do so. Moreover, any said country cannot simply walk away if it disagrees with the treaty as it'd be deemed a pariah and would be subject to sanctions. A country withdrawing from a treaty puts it in a very different situation to that in which it would have had been in had it never signed the treaty in the first instance.
An example of this is North Korea's withdrawal from the NPT (Non-Proliferation Treaty) which it signed in 1985. It's now a pariah and subject to huge sanctions since its withdrawal. India and Pakistan both of whom never signed the NPT are not in the same dire situation (they're criticized for not joining the NPT but that's all that's ever happened to them). If any country withdrew unilaterally from IP treaties then it'd receive the same treatment as North Korea. And to make matters worse, I'm sure that just about every country on the planet is already a signatory to the treaty.
I've been watching the copyright debate for well over several decades now and I've seen negligible beneficial change to copyright law, if anything the situation is now significantly worse than it was 20-plus years ago before the US Digital Millennium Copyright Act. Frankly, I'm quite depressed about it, copyright holders have such a hold over the treaty, WIPO etc. that I don't expect to see any truly beneficial changes to IP law within my remaining lifetime.
The rot set in very early on with the first and second copyright conventions starting around 1883 at the beginning of the lead up to the first Berne Convention of 1886 and then the Paris Convention of 1896. Victor Hugo and cronies were in the forefront lobbying for such a convention, and at the time, as now, the public had essentially no interest in copyright (back then, most people would never have heard of copyright let alone ever having bothered to get a delegate to lobby on their behalf. With essentially no opposition Hugo et al got away with carte blanche, that is they got the treaty exactly as they wanted it to be. Right, the treaty was a damn disaster even more so given that it had such a huge running start without any significant opposition—as we've seen, catching up has proved impossible (I keep wishing someone would prove me wrong but to date there's never been a hit of evidence to that effect).
Several years ago Cory Doctorow succinctly summed up problem with words to the effect that the average person is simply not interested in copyright law—full stop! Even if people have heard of copyright and or know about it, it still takes a very low priority in their lives when compared to other matters that they're concerned about such as the economy, price of fuel, housing etc., etc. Therefore, politicians aren't interested in doing anything about it, after all they're not going to lose votes over the issue from the citizenry, and more likely copyright advocates will gain their favor by supporting politicians' campaign funds etc.
The only way I see forward is for a well-organized international organization along the lines of, say, the EFF but one that's much larger and more powerful to take up the cudgel and run with it. I first started raising this suggestion online well over a decade ago but I've yet to see the slightest evidence that anyone's interested.
__
† Don't you mean the 1886 Berne Convention? I'm unaware there was one in 1909, but the Paris Convention was in 1896 and the one after that was the Berlin Convention, which if I recall correctly, was in 1910.
I have always thought that the fundamental toxic conceit of "Intellectual Property" lies in an obscure fear. And I think this case supports that.
To be clear, I'm not touching on legal or economic arguments about payment, rights, control or attribution. These may or may not address the many injustices facing creative people.
In the deeper spiritual conversation about ownership and acts of thought, is the spectre of fear; that one has passed one's creative peak. That you'll never make anything as good as that again. From that fear comes the rejection of creativity as an inexhaustible living process, and the urge to commodify, to cast the past in stone and build a fence around it.
This case, which is more formally about 'derivative works', is about stopping an art-form from living.
For me the antidote to that whole control pathology lies in Kahlil Gibran's "On Children": You are the bows from which your children (creations) as living arrows are sent forth. Real creators have the courage to let go.
I wonder how much of this kneejerk reaction can be rooted back to being taught in school that copying is bad. If someone's copying me, they didn't have to do the hard work I did, and therefor it's immoral, even if it doesn't cause any loss for me.
Well the loss you mention is not the only argument. The argument is about future incentives. If anyone is free to copy and fully use my work I will not do some of the work.
It's about where the bar is. Most people agree copying someone's else novel and selling it is wrong. Copying parts of it that went into popular culture? Making variations on some characters? Those are more interesting. We just need to find some reasonable rules to balance various incentives.
> If anyone is free to copy and fully use my work I will not do some of the work.
Why?
Please read me carefully: I am not accusing you of resentment.
But I already excluded issues of finance and recognition in my conditions above.
So, other than spitefulness and resentment, what else might possess us to declare that if "anyone is free to copy and fully use" some work, then it's not worth doing?
Do you not feel the incredible plenitude and abundance of creativity that urges you toward generosity?
Is capitalism responsible for somehow poisoning us with the idea that scarcity is necessary for valuable endeavour?
> But I already excluded issues of finance and recognition in my conditions above.
Finance is pretty important though, if you want to feed and shelter yourself and your family. Most other types of work cannot be made worthless by others seeing it and copying it.
But the work of researching and thinking and producing a solution can, so the government figured there should be a way to recoup costs and provide incentive.
It's not about resentment. It's about reward. Unless you're in a very privileged position you need to make money from your work or you won't be about to continue doing it. If you have done great work you hope to be rewarded for it and that includes financials.
I want to live in a world where people who do awesome work are awesomely rewarded for it.
I don't get what you're about with the scarcity argument. Everyone is free to write a novel or create software or whatever. I just want people who do the work to be in position to profit from it not someone who didn't do the work
But I'm telling you, for the third time now, that money is excluded from the argument I am making. Yet you keep dragging it back to the same spot again. Are you entrenched in that you are not able to see the world in any other way than through money?
Yes, money is important. Now, can you forget that? Put it aside and try to move on to a higher level of thought?
("No" is a perfectly acceptable answer that would satisfy my genuine curiosity)
The point he's making is that you can't just say "money is excluded from the argument I'm making" and still be anywhere relevant to reality.
People dislike copying because for most people it's an attack on their income, either by taking their recognition (eg copying "free" images from a photographer) or by actually taking their income (eg copying paid art).
If you exclude financial arguments you exclude the vast majority of people who share their work.
To bring this around to code, most popular licenses allow copying someone's code with proper attribution, so clearly copying is okay as long as you don't take recognition from a work that isn't profit motivated.
I think "No" would have saved you many words. Nonetheless I am disappointed that there appears not a single voice amongst you who can conceive matters of creation outside a framework of money, income, profit, reward, theft, entitlement, licenses, capitalism, communism.... they really have you where they want you.
Can't you just engage with their argument?
It seems pretty obvious to most people, that some artists would be unable to produce certain works of art, if they did not have the funding to pay their bills.
Why are you unable to understand this? Just engage with the argument.
> Can't you just engage with their argument?
No.
Because it is not an agument, it's a diversion, and an attempt to drag a much more complex and interesting debate into the long grass.
> It seems pretty obvious to most people, that some artists would be unable to produce certain works of art, if they did not have the funding to pay their bills.
You're correct. It is obvious. Indeed it's so boringly self-evident it precludes discussion. It's dull, maudlin, perennial and a pointless spiral down into lamentation of broken political and social systems that are utterly beneath the level at which I wish to engage.
Are you familiar with the expression "Never argue with an idiot because they'll drag you down to their level and beat you with experience"? That.
> Why are you unable to understand this?
I understand it perfectly. I'm just not interested in it.
> Just engage with the argument.
Your entitled indignation that I refuse to be dragged into the mud amuses me.
> You're correct. It is obvious.
So then yes, you agree with everyone else completely, that many artists would be unable to produce certain art, if they were unable to make a living from it.
Great, you agree with everyone else entirely. Not sure why you would be so upset with everyone if you simply agree with everyone's main point, 100%.
> that I refuse to be dragged
You don't have to be dragged anywhere if you simply agree with the point, that you called obvious, which is that many artists could not produce work if they could not live off of it.
This doesn't have to be an argument. You just agree with them, and you called it obvious.
Unfortunately this HN forum is not conducive to long exchanges. (I probably won't read further replies as they slip off the bottom of my workflow here). I appreciate your reply and willingness to have a good banter.
Our difference is that "artists" are driven by complex psychological and spiritual motives, way beyond money, which is a necessary but insufficient component of the artistic life. Some commenters don't like it when I say you're an accomplished craftsman but not a "real" artist if your preoccupation is with money. I can understand why that hurts, especially if one is besieged by brutal, empty capitalism and looming AI predating on your soul.
But I stand by this. And most of Art-history and the philosophy of art bears me out. And my point is that the artist who sacrifices (prostitutes) themselves on that altar of anomie and alienation is an accomplice in their misery - however strong the need to "put bread on the table". We are more than this.
Sorry, but you already said that you agree with the point, and called it "obvious".
So yes, you agree and think the point is obvious.
And now you are just moving the goal posts to something else, using a lot of words, in order to ignore the fact that you just agreed and said it was obvious.
This website used to be called Startup News. It probably still should be.
Or did the idea of what a "start-up" is mature to incorporate bigger ideas about value?
This is why we need some form of universal basic income..
I would like to make money out of my work if we have UBI as well, you know?
It does cause loss for you. How many hours you spent on that original work have been wasted. You could have just spent 10 minutes copying someone else.
To the downvoter, please do some free contract work for me. It causes you no loss.
Hi. I’m an artist. I have spent most of my life practicing my craft. I think that until we have abandoned the concept of “working for a living”, this line of thought is a bunch of wankery.
If I create something that people are willing to keep buying for decades without any more work on my part, then I have a nice source of recurring, passive income that I am very motivated to defend by stopping anyone else from profiting off of it. I am also a human being who needs to do things like take a break from working now and then so I don’t burn out. And explore new avenues of expression without worrying about spending a while making stuff that’s not good enough to get paid for. And work on big, weird projects. Having something that keeps selling without me putting in any work is great for all of those things.
The fundamental toxicity here is that we live in a capitalist hellscape, not that artists would like to use their skills to get by in said hellscape.
Would you prefer a communist hellscape where you only get paid if the Commissariat of Art likes it, or a monarchist hellscape where you only get paid if the Duke of Something is your patreon?
Or, as a thought experiment, some sort of UBI so that artists can follow their muse without having to find buyers for their work.
Would you gladly slave away for the rest of your life so artists and random layabouts can “follow their muse”?
I don't mind money for artist, but the problems are wannabe morons that can't draw a circle with the bottom of a bottle.
I don't mind money for scientists, but the problems are wannabe morons that try to prove the Earth is flat.
You can continue the list...
The hard problem is a better method for resource allocation.
In the communist hellscape you would have a minimum of food and housing guaranteed and could survive regardless of the Commissariat pays you or not.
The monarchist hellscape is pretty much equivalent to the capitalist hellscape, except you are trying to seek patronage from the public rather than a single entity. The capitalist hellscape is a hellscape because disposable income is disappearing from the middle class.
In a communist country, can you send a letter saying that you will never return to the car factory because you are going to make sculptures all day long? Are they really going to continue giving you house and food or the secret police will ask nicely to reconsider your decisions? (Assuming it's not https://en.wikipedia.org/wiki/Khmer_Rouge and there is enough food.)
> Hi. I’m an artist. I have spent most of my life practicing my craft. I think that until we have abandoned the concept of “working for a living”, this line of thought is a bunch of wankery.
If you seriously think that the deepest spiritual questions of why we create are "a bunch of wankery" then you are no artist. A producer of things, maybe. A very successful producer of wonderful, beautiful and desirable things perhaps.
But not an artist.
Ah yes, and now we have the “you can’t be a real artist if you consider any practical realities of putting food on the table with your work” wankery. I’ll just go subsist on moonbeams and philosophy so I can be a real artist then.
Wanker.
I won't push you on it any more, because you're not ready. But I hope that one day you'll find a whole lot more to the world than what you see now.
Congratulations on maintaining your sense of smug superiority throughout this discussion.
I am, as I said, a working artist. I have done multiple solo projects that spanned one or more years, each more ambitious than the last. I have cover quotes from four people with something like seven Hugos between them on my last graphic novel.
I am now returning to a project that I put down for a couple of years because it got to a point where the polish it needed was not compatible with the ways my income is structured. I recently had a boring corporate art gig work out really well so I get to spend at least a few months not worrying about where my rent is coming from, and I’m stopping less ambitious projects that were easier to crank out at high speed in favor of this crazy thing. They were also ones that felt more likely to be popular. The serious big projects? I care that they please me, first and foremost; I do them because I have something I need to say through the medium of words and pictures,
I do not worry that I have peaked. I worry about paying my fucking bills in a world that’s increasingly more hostile to making a living as an artist. I worry about every social site wanting to hide posts that link to my site because these corporate hellsites are optimized to keep people scrolling past interchangeable “content” that fills the space between ads.
When I finish this project, I am confident that my next project will build on the lessons I learnt doing this one, as it built on what I learnt in my previous major workings. Perhaps it will be even more ambitious. Perhaps it will be deliberately much less ambitious, so I can kick back and have some fun without pushing myself to new heights for a while. I’ll still keep getting better, every time you draw something you get a tiny bit better at drawing that thing, and it doesn’t go away unless you suffer major brain damage. Hell, even that isn’t necessarily an obstacle - there’s a story about one Warner Brothers animator in the forties who had a bad concussion in a car accident, and found that his abilities had taken a major leap forwards once he was healed up and ready to get back to work. Lose my drawing arm? I’ve seen friends shift off their dominant hand due to injury, and go from uncoordinated wobbly messes to just as good as before in a month or two of breaking out the drills they used back in art school. Eventually there is a point where my whole body will start to break down. That is when I expect to peak: when I am physically incapable of manipulating tools and seeing my canvas.
But sure, I’m “not ready” and there’s “more to the world”. And worrying about intellectual property has nothing to do with wanting to be able to make a living. And I’m not really “an artist”.
But you’re still a pretentious wanker.
Why did it take you getting really quite angry before saying some truly interesting and engaging things?
If you hadn't been so vulgar this could have turned into a really interesting conversation about capacity, maturity, self-development, ... all the things I wanted to talk about that aren't the dull, common rubble of how shit life is under late capitalism. It's shit. We get it. The only important question is what you're going to do about it. But if you only see threats (pretentious wankers) everywhere, those options are going to be quite limited.
And I'm not hurt by what you say. I'm British and a writer. Of course I'm a pretentious wanker and I'm pleased you're smart enough to see it.
Guy colored in someone else's photo for profit. And doesn't kick any of it back. I also don't suppose his estate lets anyone else sell copies of that image. Seems like having your cake and eating it.
Nah, it's like stealing someone else's cake, and writing your name on it with frosting and eating it.
No it is not. Copyright infringement is not, can not be considered theft. It is not legal theft, and can not be called that in court.
Theft is the act of taking something from someone, if you copy something you by definition have not taken it, you copied it.
The original is still there, intact.
Taxation is closer to theft than copyright infringement is.
You’re taking away their right to control the copying of their work.
I dont consider it a right, I only recognize negative rights as valid natural rights.
They may have the legal authority to control it, and may have the legal authority to use government guns to prevent unauthorized copying, but they do not have the moral or ethical right.
You must reject natural rights in favor of "who ever have the most guns has the right" method to definition of rights
No one should have the right to control what others do with information.
Theft is a morally defensible issue because it deprives another.
Copyright is morally indefensible: There is no deprivation. It is only about controlling others.
Copyright is an artificial right created to assist the "progress of the Science and Useful Arts."
Is copyright still doing that, or is it creating cartels, being used to tell you what you can see and hear, encouraging patenting obvious things for a "landgrab", and supporting companies who don't really add anything to society other than file lawsuits when they think they can get a payout?
For some industries that need a lot of upfront R&D and investment and can be well articulated, copyright/intellectual property should be able to be used to protect that investment, but we went very wrong with the current maximalism with copyright terms being 100+ years for songs that might take less than 1 hour to make, and where things like business processes and "X but with a computer" can get patented.
All rights are artifical rights.
Well--being U.S. centric here--some are placed in a category of "inalienable" e.g. "Life, Liberty and the pursuit of Happiness" as described in the U.S. Declaration of Independence. See https://legaldictionary.net/inalienable-rights/.
While U.S. copyright is established by the Constitution, does this mean it's in the same category as "inalienable"? Something worthy of more research on my end to be sure.
It probably wouldn't be considered "inalienable"... I don't think eliminating it is the answer; some form of Copyright should probably exist. Maybe it would be appropriate to have shorter default Copyright durations overall and allow people to apply for longer terms if they think the work is particularly novel.
Something doesn't sit right with me when the same legal system supports these two different scenarios:
1) I find land or buy land and occupy it indefinitely as my property with exclusive use rights
2) I create something new using my creativity and have little to no rights over its exclusive or non-exclusive use
Why would I not control something I create when practically most other ownership rights are based on a first-come-first-served basis? Clearly if I created something, I came to it first.
Inalienable rights are about as objectively real as Christ's salvation of mankind. Something many people will believe to their grave and won't recant even under serious duress, but nobody can actually prove such things exist as anything more than mere assertions.
>Inalienable rights are about as objectively real
The concept of Inalienable or natural rights stems from the Philosophy of Self Ownership
If you deny the existence or objectivity of natural rights, then you also deny the concept of "self" and that humans are self aware actors that objectively own their own bodies.
that is a very dangerous thing to deny
It's very similar to "international law" in that way.
Much more like making the same cake with few differences and calling it yours. The original photo wasn't taken from anybody.
Only to the extent that copying a video file of a film makes me a filmmaker.
If you copy the file, not really. If you make modifications - e.g. a different cut, new scenes, dubbing... Then I'd say you're much closer to being one.
If it comes down to a subjective debate about aesthetics in a courtroom, we've veered into a bad direction.
Yeah, I'd hardly call that fair use.
> Warhol, in contrast, viewed existing content as source material for his own work, which, of course, is what he did with Goldsmith’s photograph. Whether he would sue someone to protect his own work is another question
How is it another question? It's the exact same question. It would be interesting to take "orange prince", change the background color to green and print it on mugs & fridge magnets, and see what happens.
> How is it another question?
Because Andy Warhol has been dead for 35 years, while Lynn Goldsmith is very much alive.
We know what she would do - since she’s done it - but whether he himself would make the same choice is, as the author says, another question that we have no way to answer.
Didn't the article say the Warhol curators actually filed the suit first?
> Didn't the article say the Warhol curators actually filed the suit first?
Unless Andy Warhol’s genetically sequenced AI brain is actively making decisions for his estate, I’m not sure this is relevant to the question of what Andy Warhol himself would’ve done.
No... but if you follow the context of the comments, it does question the assumption the other commenter made that the other party was the one suing.
I don't really understand the point you're trying to make here.
The author of this piece is essentially saying "we don't know what Andy Warhol would've done if the roles were reversed," which is unassailably true since he was dead for over 30 years before this lawsuit was filed and, to my knowledge, never initiated any similar lawsuits of his own during his life.
Regardless of which party moved first, neither party is Andy Warhol and so the original question remains impossible to answer.
Seems like a stupid thing to make an article about if it's really as narrow as "we don't know what Andy Warhol would've done if the roles were reversed,". And if we're saying there's no room for discussing the questions surrounding the topic.
Also seems like a pretty poor piece if that's the point and they don't investigate or mention any history, like the Elaine Sturtevant stuff.
Only fair this would revolve around Prince - keep in mind he ADAMANTLY HATED FAIR USE and wanted it against the law for people to cover his songs without his permission. He said so in interviews. I believe he was very wrong on this point and he would’ve abused copyright worse than the RIAA from beyond the grave.
Warhol’s work is barely transformative to me, as in was there tracing paper involved? Or basically the same concept? That’s not transformative that’s derivative. That term applies and it’s not fair use as derivative. These two concepts are rather clear and those who would argue it’s transformative (probably Masnik who is a quack when it comes to fair use) instead of derivative (correct term) are wrong.
Just like Masnik and Pharrell who chicken little’d the Blurred Lines ruling that it would kill creativity in music! Huh, how about that? Old Town Road paid for its samples and was a smash hit. So, yeah, welcome to a re-run of some tired absolutist arguments that fall apart.
>wanted it against the law for people to cover his songs without his permission
IANAL but note that covering a song is not fair use. However, with music specifically, it is (normally/always?) possible to pay for a mechanical license [1] which allows a musician to pay to cover a song. The same concept does not apply to many other types of creative works. For example, a playwright can (and many do) refuse to allow their work to be performed by amateur theater companies or to have the content modified.
[1] https://en.wikipedia.org/wiki/Mechanical_license
It is also worth remembering that a mechanical license is limited.
It allows you to perform a work yourself (privately) to create a new audio recording of that work[1]. What is known as a "cover". But other than sell the new cover audio as CD, mp3, etc, or have it get played on the radio or audio streaming services, there is not much more you can do.
It does not allow your cover band to perform the work publicly. (Normally this gets covered by the venue, either via ASCPA/BMI licensing, or via individual negotiation with the rights-holder, but in some cases, like temporary venue fully orgnaized by the band, the band may need to acquire such rights.) Remember that any form of live-streaming is also public performance.
It does not allow your cover band to create a music video, or to use your cover recording as background music in a video you create. (For either of these you need a "synchronization license" that the work holder can simply refuse, and there is no simplified ASCAP-like mechanism for handling these negotiations)
It may also surprise many to learn that recording artists are not technically entitled to royalties for use of their songs over the radio. Indeed, recording artists of any kind[2] only get royalties for digital music transmission when certain exemptions don't apply, and get no protection at all for non-digital transmission.[3]
The whole music copyright system is basically a giant mess, and does not work how a reasonable person would expect it to work.
Footnotes:
[1] Or to duplicate an existing audio recording if you also have permission of owner of the copyright for that particular audio recording.
[2] unless they happen to be the musical work copyright holder as well, which is not uncommon, but hardly universal.
[3] Realistically they were only granted this digital public performance right, because a digital transmission of a digitally recorded phonorecord is hard to distinguish from copying said phonorecord.
Prince wanted the mechanical license mechanism to go away completely for everyone because he didn’t like it. That’s what I’m talking about - he sued over the dancing baby which helped build support for fair use. This article is the same crap Masnik said about Blurred Lines that it would kill creativity and the author should be admonished for such easily disproven pearl clutching FUD.
You are correct however there is a grey area if they claim it is parody. As a cover it is not fair use.
Yes, parody/satire is often a difficult case, e.g. https://constitutioncenter.org/blog/dr.-seuss-in-the-land-of...
Just playing off some well-known characters or some defining characteristic of a work doesn't necessarily constitute fair use although judges seem to often disagree on the particulars.
Correct, but Prince also denied each request by Weird Al - Weird Al had every legal right to release them but he chose not to because he is a class act, unlike doctor shopping selfish Prince Rogers Nelson.
I dunno, I prefer the Warhol over the original. Should art like this not exist or be heavily discouraged or controlled by licensing fees? Copyright seems to be stuck in a scarcity mindset. Especially for static images whose market far exceeds the ability of artists to keep up with. The bigger problem seems to me that artists still don’t have a great way to sell directly to their customers.
You need to consider the affect on the original as well though. Without copyright would Lynn Goldsmith have ever taken the original photo? They have a degree in Psychology, in a world without copyright protections why would she pursue photography and filmography rather than becoming a professional psychologist?
Sure she'd probably still own a camera as a hobby, but would she have taken weeks to follow touring bands?
> That’s not transformative that’s derivative. That term applies and it’s not fair use as derivative
Pedantic, but the law is pedantic: fair use works are inherently derivative of the work they're based off of. Fair use is just an exception to the 'must get permission' requirement of creating a derivative work.
No, Fair Use must pass the four factor test, and you are wrong in your interpretation. Go look up the four factor test so you can correct yourself.
You're right about:
> Fair Use must pass the four factor test
but that doesn't make it "not a derivative work".
To make a derivative work, you need permission from the copyright holder.
However, 17 U.S.C 107 states that " the fair use of a copyrighted work... for purposes such as (purposes)...is not an infringement of copyright".
All it does is change what constitutes copyright infringement, it doesn't change the meaning of "derivative work" as defined in 17 U.S.C 101.
Everything Prince ever made was derivative. Without the artists that came before Prince, Prince was nothing. His ego was out of control.
Agreed. He chose opiate addiction over hip surgery because of his personal beliefs which he held more important than his health and eventually life. Not a good guidebook in my opinion.
Found the pictures thanks to the link elsethread.
To me, the Warhol images are substantially different - the only common element is Prince's features, and presumably that likeness belongs to Prince, not the photographer.
Consider that the photographer isn't the owner of the likeness, and that everything besides the likeness is different, I'd call the Warhol image a substantially different work from the photographer's image.
If the ruling comes down on the side of the photographer there's definitely a chilling effect on the creation of new art.
Other than the likeness (which belongs to Prince), there are no similarities between the images.
I'm all for changing copyright to allow the stuff Warhol did, but I don't think this is substantially different at all. It's a direct copy of a picture with a coloured background. The angle, lighting, position, and expression, all probably directed by the photographer, are identical. This is the manual equivalent of an Instagram filter.
The two images don't compete in the same market, but that's not relevant for copyright. I think it perhaps should be, but as it stands, the law shouldn't be interpreted like this.
Imagine another type of copyrighted work, such as open source software, being reproduced against the terms of its license but with all names (variables etc.) changed, perhaps translated into another language or capitalised. The style of the work has definitely been changed, much like Warhol's style is very different from a photograph, but the product is very much a derivative that should be used in the terms set forth by the original author.
Also consider the effect this would have on the internet: if Google/Facebook/Bytedance were to be allowed to just scrape images online and sell them as their own after applying a black-and-white filter, any photographer would probably be up in arms.
> The two images don't compete in the same market, but that's not relevant for copyright.
That is actually extremely relevant for Fair Use though.[1]
Note Factor 4: The Effect of the Use on the Potential Market for or Value of the Work
[1] https://copyright.columbia.edu/basics/fair-use.html
The hook for the case is that both images were available to be licensed as magazine covers for an article written for Prince's death, and Goldsmith's lawyers argued that made both pictures part of the same market: https://news.ycombinator.com/item?id=33056773
I don’t think your analogy is correct. Colour and alteration of angle and shadow/lines produces a functionally distinct effect ie those who like the Warhol may dislike and the original for a variety of reasons including taste or whether it would match the decor where they would hang it. So it is not the same software with the variable names and casing or language changed, that would be invisible or relatively inconsequential to the end user. At worst it is a reskinned application but I think the effect is deeper than that.
The problem here is that the likeness is not what is in dispute, and the copyright of a photograph belongs to the photographer. The ruling, like it or not, is entirely correct. It is plain that the Warhol piece is derivative of the photograph.
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.
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.
> 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.
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 source photo for the work was just another photo of Prince."
Sounds pretty dismissive of the original photo's value to me...
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.
Perhaps we should change copyright to only last 5-10 years then.
While I broadly agree (my view: copyright lifetimes should be more in line with patent lifetimes), most other people who create work - in particular those who create work to help them pay their bills - would disagree.
Fortunately there's a solution for mavericks like me: Creative Commons licenses[1]. While they don't change the fundamentals of copyright, they do offer us the chance to practice what we preach[2].
None of this touches the doctrine of Fair Use, of course. I like Fair Use - as long as the person/organisation claiming it remembers to cite the original work ... something I doubt Mr Warhol bothered to do.
[1] - https://creativecommons.org/
[2] - https://rikverse2020.rikweb.org.uk/blog/copyrights
Iy's easy to lay it all at the feet of Disney. But, yeah, there are plenty of relatively small-time writers who support their families by cranking out some genre fiction book once a year (or whatever) who aren't all that anxious to just casually cut off some level of already modest back catalog sales.
I don't care for myself. My writing translates into money through other paths. But there are a fair number of people for whom writing is their primary income source and it's not a huge one as it is.
This is a good idea
>> If the ruling comes down on the side of the photographer there's definitely a chilling effect on the creation of new art.
I actually think a ruling in favor of the photographer will favor creation of new art, because artists will have stronger protections. Warhol could have just taken his own photograph and there wouldn't be any argument to be made.
> To me, the Warhol images are substantially different - the only common element is Prince's features, and presumably that likeness belongs to Prince, not the photographer.
Depends on if Prince signed off on a model release.
Model releases are about using images in marketing/advertising/etc. I can use images of you for other purposes without a release.
This other article recognizes that a picture is worth a thousand words:
https://www.latimes.com/opinion/story/2022-09-29/andy-warhol...
Wasn't there a similar case with the Obama Hope poster? https://en.m.wikipedia.org/wiki/Barack_Obama_%22Hope%22_post...
> Fairey sued for a declaratory judgment that his poster was a fair use of the photograph. The parties settled out of court in January 2011. In February 2012, Fairey pleaded guilty to destroying and fabricating evidence showing that he had used the photograph; in September, he was sentenced to two years of probation, 300 hours of community service, and a fine of $25,000.
Very similar, and more unfortunate for fairey than tfa. He is a graffiti artist, so there is that in regards to illegal art. I've seen him speak to Warhol's archetype before, and he resented the copycat nature of it pretty clearly. I think that is a bit ironic.
Two points: 1) This goes back to the assessment that "the object" is not "The Art", it is the totem that represents the cultural milestone of The Art's creation date and position in cultural time and location, and "The Art" is The Artist proclaiming a vision/perspective they share to others. This is part of the reasoning that allows extremely similar works of art to be designated as unique - they are milestones for different cultural points in history and different intellectual perspectives.
2) 40 years ago, I dated the daughter of a major art collector; he owned the entire collections of a few major artists. He commissioned Warhol do to a Jean Cocteau portrait. Girlfriend's dad expresses anger one day, as Warhol is weeks late on his commission. He takes he daughter with him to Warhol's studio to complain, and upon return expresses utter disgust with Warhol and his process. He returned with the portrait, Warhol made it in 15 minutes upon Dad's arrival and complaint, seemingly with zero forethought. A Cocteau series followed, but GF's Dad was completely uninterested in Warhol after that point, calling him "an advertiser".
IMO, Warhol's fame and artistic perspective is exactly like P.T. Barnum, Warhol simply proved “There's a sucker born every minute” is also true for serious fine art. And that transference of suckers existing in the world of Fine Art, transforming their "foolish art" into "Fine Art" is Warhol's Art.
In a fairly similar circumstance, Shepard Fairey got sued (but settled) by AP for his 'hope' poster he created by coloring an AP photo of Obama.
Acording to Wikipedia the judge told him to settle because he’d likely loose.
https://en.m.wikipedia.org/wiki/Barack_Obama_%22Hope%22_post...
I think the take away here is you draw someone famous move the hair, rotate the head so the source can’t be determined. If the source can be figured out it’s probably too close.
This article leaves out the relevant facts. [1]
See, http://copyrightblog.kluweriplaw.com/2022/05/09/andy-warhol-...
After Prince's death, Vanity Fair Magazine purchased an image rights license to run the Warhol painting on it's cover.
The original photograph was, at the time, also available for license.
Goldsmith argued that Warhol's work was commercially competing with their original photograph.
Note that the context was not space on gallery walls but the cover of a magazine, and there was not a question of whether the cover of magazine constitutes fair use...I mean the Warhol foundation would almost certainly have sued if Vanity Fair had used the Warhol image without a license.
To put it another way, the case is not about Fair Use directly, but about competing image rights. I mean, since nobody is going to confuse a magazine cover with an original Warhol, for the Warhol Foundation's fair use claim to stand, then Vanity Fair's cover would be sufficiently transformative to constitute fair use.
Not that there'd be anything wrong with that. Warhol's been dead 25 years. Seems like enough time for the works to be in the public domain, to me. YMMV.
[1]: The Atlantic seems to have given up on journalism in recent years...Jobs bought it in 2017.
The competition you mention is directly part of fair use, specifically the fourth factor: Effect of the use upon the potential market for or value of the copyrighted work. https://www.copyright.gov/fair-us
I am not a lawyer.
My understanding is that lowering the value of the original work is an argument against a particular use being fair use.
Which is to say that Fair Use is not intended to further commercial competition.
And that the purpose of copyright is to forestall commercial competition.
Of course I could be wrong.
Do images of soup cans or thoughts of fifteen minutes of fame come to mind when you’re viewing the Goldsmith photo?
Both Warhol’s works and Vanity Fair can be seen as celebrations of, well, celebrity vanity.
What I’m getting at is that it seems Vanity Fair chose the Warhol for the cover because it means something very different than the original photograph and that Warhol’s baggage could easily be what the editors needed for the intended effect.
Sorry for not being clear
I’m not arguing that Vanity Fair’s image choice wasn’t a better way to convey the intended mood of the moment.
The painting is fair use.
The magazine cover isn’t the painting.
Reading this reminded me of the Kind of Bloop album cover dispute (Miles Davis photo “pixelized”): https://waxy.org/2011/06/kind_of_screwed/
Thanks for posting this, it was an interesting listen. The fact that every track exactly copied the improvisations rather than improvising around the tune (which I did not expect) says something about the merit of the photographer's argument, though. Although it doesn't say any more about it than the fact that the compiler got permission from everyone beforehand.
It's a separate work from Kind of Blue only to the extent that a different mix or running the tracks through a distortion pedal would be.
The argument in this piece is a classic example of slippery slope-ism. The question of fair use, or of balancing between copyright maximalism and copyright minimalism, is a so-called line-drawing problem (given a spectrum of cases, deciding where the line of “ok” vs “not ok” should be). The article says that ANY decision in favor of the photographer/against Warhol would basically ruin fair use doctrine.
This proposition has barely a hint of truth in it. Especially considering how clever lawyers, SCOTUS justices included, can be in distinguishing one case from the next.
I’d hardly be worried.
What about the model? Presumably Prince gave permission to be photographed (if he was in Goldsmith's studio), and it is always assumed public figures (and anyone) can be photographed in public without permission. But if the work generates significant revenue, how come the model is never entitled to fair compensation? If I was famous, or it seemed inevitable I would be, is there no way to use my natural rights to my likeness and sound of my voice to protect my investment (or privacy)? And of models that do generate significant revenue from their likeness, shouldn't their parents (and grandparents, and estates of great grandparents, etc. ad infinitum) be permitted to sue for a portion of the profits? What about the living subjects of songs?
The point is it is hypocritical to screw the model or human inspiration of the art, or owner of an animal or plant or object that is the inspiration, for the benefit of the art and whomever happens to own it. If you paint me and the painting sells for millions, or write a journalistic piece about me and millions of copies are sold, I want a piece of that, and I think I'm entitled to it, but more so, I want to use my copyrights to my likeness and name as legal deterrent to protect my privacy and prevent bad (or good) press.
Don't look at me, because you're necessarily reproducing my likeness upside-down twice in both your eyes and in your brain, and if you do look at me, you owe me fair compensation, because once seen I cannot be unseen. And stop reading my comment, because it belongs to me. Don't even think about quoting me without permission under threat of litigation.
It's a little hard to tell if and how much you are being sarcastic. I don't see how people could expect payouts for just existing. You are already getting plenty of (often unseen) services and benefits from society, and you presumably pay back taxes to more or less get even. Fame already brings many benefits and opportunities by itself. Some people are famous against their will and I am sympathetic to that issue, but this is a wholly different discussion.
There is an argument that you might work to look a certain way (clothes, makeup etc.) for some professional reason, but then do it on a private property if you want to stop people from photographing you. Otherwise you're just grabbing public space for yourself unilaterally. Note that I made a similar critique of modern copyright in a recent thread, so I'm not really advocating for privileging artists over the objects of art.
> I don't see how people could expect payouts for just existing.
I don't see how people could expect lifetime payouts when other people copy a photograph, but everybody has blind spots in their ability to empathize and understand other people's positions.
it works that way in film, doesn't it? actors get compensated for their contribution, not just directors and camera-operators, so models in a photo or painting should be compensated just as well.
Professional models typically are paid. (And top fashion models can get paid very well.)
But that actress probably wants to be on that Vanity Fair cover shoot. And people who are famous in general for things other than modeling also generally want to get their photo taken by well-known photographers.
People do have rights to their images being used in marketing and advertising materials. I can't take a photo of you on the street and put it in an ad without your permission. But, no, you don't generally have rights related to me taking your photo in public and making a poster of it or otherwise publishing it. (In the US.)
> Professional models typically are paid. (And top fashion models can get paid very well.)
There's not many signed and professional fashion models, about 3600 in the US, 112K globally. The top 10% earning models average over half a million a year, and a tiny handful make millions. In general, fashion models make about $70-$100/hour, but few, if any, can work full-time hours.
But that isn't what I meant. The most expensive photograph in the world is currently "Le Violon d'Ingres," created by Man Ray in 1924. It was sold in May 2022 by Christie's of New York for $12.4M. It is very likely that the model, Alice Prin, wasn't compensated since she was in a relationship with Man Ray and living with him when it and many other portraits of her were created. Whomever Prin's living descendants or relatives are, as executors of her estate, should have a right to sue the Man Ray Trust or whomever sold the photograph or Christie's, and likely all of them, for a portion of that sale.
Does anyone the think the Associated Press gave Phan Thi Kim Phuc (Napalm Girl) any compensation for the amount of revenue and profit generated by the photograph, "The Terror of War?"
At some high level, actors are no longer just paid a base amount, but are entitled to percentages of total profits of ticket sales and even sometimes a percentage of the post-release video market. That seems fair. I've never heard of a model getting a percentage of the revenue of a photographic piece.
Programmers and software engineers, by and large, are in the same situation as fashion models. They sell their time and, without compensation, give away any copyright to their work. I, for one, think they should get a piece of the total profit.
Now taking step further. Should tool makers get part of the profit made by those tools?
And if we apply that to programmers. Should the person who assembled or packed the computer developer did his work on get part of the revenue developer makes by using this machine? Or with phones from revenue generated by made phone calls?
> Should tool makers get part of the profit made by those tools?
If they invented the tool, they can have a patent.
Individuals are not tools, and I don't see how the tool acquires copyright. Models own the copyright of their likeness, and technically, coders own the copyright to their code, right up until they give it away for wages already compensating their time, using the same coin to pay for two different things of value. Granted, a lot of portions of code are copied, but any novel code written should be copyrightable.
If there was any money to be made in distributing a recorded phone call, then the participants should be compensated out of the total profits.
> Models own the copyright of their likeness
This isn't entirely correct.
They have personal rights, publicity rights, and moral rights... but they do not have copyright. The copyright is retained by the person who took the photograph or painted the portrait.
Most recently, I'll point you to https://www.rangefinderonline.com/news-features/industry-new...
> It’s happened yet again: another copyright infringement lawsuit involving a celebrity posting an image of themselves without permission from the photographer. This time it’s Miley Cyrus who is in the hot seat, for sharing an image of herself on Instagram without licensing it.
I'd also suggest giving https://entertainmentlawyermiami.com/model-rights-and-photog... and https://www.modelsadvocate.com/basic-copyright-law.html a read
It is, of course, absurd that we do not own our faces or likenesses. That needs to change without outlawing cameras, photographs nor photographers. Since it really is very difficult to determine who created more, the copyright should be shared evenly, and any sale of copyright and waivers should be banned. I don't think it would be all that bad if copyright was permanently owned by the original holder(s). This would eliminate speculators getting rich off someone else's sweat.
we actually do own our likeness to a degree. at least in germany i have the right to control how images of me are published. in particular it protects me from being portrayed in a demeaning way. there are exceptions depending on the circumstances, but generally any publishing requires my permission. i believe similar rights exist in many other countries.
what's missing is a right to get a share of the profits. a shared copyright could help with that.
In music production terms, the sample hasn’t been cleared.
If the title chosen by The Atlantic author is so objectionable that HN submitter/moderator must change it completely, then why not find a different source with a more agreeable title on the same topic. There is no shortage of articles on this case from a variety of sources.
Alternatively, HN could include both the author's title and the "HN title" in its HTML but only display the HN title.
When I extract URLs from HN HTML I tend to ignore the titles and this is one reason why.^1 I am interested in objective identifiers. HN can change the title, but it cannot change the URL.
Someone searching HN by title for an article from a particular publication may not be able to find it as easily as they should. Similarly, someone browsing all submissions from a particular source, looking for a particular title may miss it because the original title has been editorialised.
1. When I retrieve www search results into a custom SERP format, I actually drop everything except the URL. I never see "objectionable" titles.
It is very clear where the writer's sympathies lie. "Copyright maximalists" versus "Copyright minimalists"? - sorry, no "Copyright reformers".
Even as a fan of modern art Andy Warhol has always left me cold. Nothing he did seemed original or said anything.
To me seeking permission to use someone else's work is just good manners, regardless of money. That is the point.
I agree that asking permission is just good manners.
Thing is, Warhol's entire output is based on copying; not having obtained permission is a large part of the point. I'm no art critic - I'm a phillistine - but I think one way of interpreting his work is as a commentary on copying.
Sure, but that doesn’t necessarily make it profound or interesting, regardless of its popularity.
One of the amici in the case has a poignant example of how insane fair use. In their brief (https://www.supremecourt.gov/DocketPDF/21/21-869/227996/2022...), on page 28, they have the example in the case in question (which the 2nd Circuit ruled was not fair use), as well as another example from another case... which the 2nd Circuit ruled was fair use, and reaffirmed that it was fair use in the question. Despite the transformations in the two cases being almost identical.
Madness.
My gut reaction looking at it is to judge the quality of the art but that isn't really the point. We shouldn't only defend "good" art. So that does get into the fact that fair use is a "doctrine" and so it harder to quantify. Would anyone confuse the photograph with Warhol's version? No. Warhol's look was so distinct that regardless of the photo used, it still looks like a "Warhol." So on that grounds I would say it is a transformative work and therefore fair use.
The author argues that it would be okay to object to what Warhol has done if it were already well established that what he did was a violation of fair use, but that it can't already be considered well established because otherwise there wouldn't be a lawsuit about it.
But there are plenty of instances where clearly established precedents nevertheless require lawsuits for their enforcement.
So could this be applied to tracing of drawn art? That is taking someone else drawing and copying it and then altering some elements.
And memes.
And AI art.
https://i0.wp.com/itsartlaw.org/wp-content/uploads/2018/12/a...
Fair use? I think yes. Was Andy Warhol an overrated hack? I think also yes.
It’s interesting because Warhol’s style is so iconic, that it almost feels like the rules should be different. You can’t look at the transformation in a vacuum, rather it involves injecting his entire artistic history.
I think that’s a bad reason - it essentially says that if you’re famous enough you can get away with whatever you want. The legal precedent of this would serve to protect established artists and punish less well know or up and coming artists.
I think things are at the point where having more clarity would be more helpful than having a bunch of settled cases with no clear precedent, because they were too expensive to litigate.
I don’t know who’s right here but copyright constantly stops me from creating art.
I would probably only hang it on my own wall or sell 25 copies in a cheap zine but I’m terrified someone will sue me. So, I don’t create art that I envision. Maybe the world is better for it; maybe it’s worse.
One of my recent art projects was to create a series of images in the CGA palette of the 1980’s but using images of modern technology. It would probably end up very similar to this example. I’ve spent tens of hours trying to perfect the look I wanted but I abandoned the idea because capturing my own images is impossible in some cases that I can imagine.
The problem is that this is a purely subjective issue, there is no objective test you can apply to determine whether or not something is a fundamentally original work or not. Even within this thread there are disagreements about if Warhol changed the image enough. Eliminate copyright, period.
The correct incentive to create intellectual property is intellectual currency. Other incentives are perverse and lead to a private entity capping the public well of knowledge to make their brand of bottled water a more compelling purchase.
America is a declining empire, and it appears to be a law of history that declining empires establish increasingly cumbersome regimes of copyright regulation.
So I must assume that the side wanting to restrict fair use further will win.
How was the illustration actually created?
Stupid thing is, I'm pretty sure he could have licensed the picture for what would have been a trivial sum for Warhol
Author says:
> The English version, like a lot of English beer, is older but not necessarily better.
That's unkind. English sterilized bottled or tinned beer isn't "older" than the US equivalent. English cask-conditioned beer is a fresh product, usually made no more than a few days before it's pulled.
I assumed they meant older in terms of heritage. But it’s still an unfair comment given how nice ale is.
Also given how until very recently American beer had a terrible reputation for being watery rubbish. Most of the American beers that make it overseas are still those watery mass produced products.
Rice beers.
I'd consider Warhol's work to be essentially a remix. It's clearly different. It has a very different impact. Even though there's no denying where it came from, I doubt anyone wanting the photograph of Prince would be very happy if you gave them the Warhol version instead.
Legally, I expect Warhol to lose, but if he does it'll be because the law is wrong. We absolutely should be allowed to remix one or more existing artistic works into new works, and artists shouldn't be burdened with having to obtain permission to create them (although it's still polite to ask, we shouldn't expect art or artists to always be polite).
Hopefully the enforcement of copyright law, the chilling effects it has on artists, and the negative impact that it has on the richness and accessibility of our culture, will eventually encourage people to push for reformation of copyright law to bring it more in line with what it was originally intended to do.
i don't believe remixing is popular enough for that. personally i think that there is to much junk art out there. (how many hours of video are there on youtube?) and freely allowing remixing will only increase the ratio of junk vs good art. i am not saying that all remixes are junk. it is certainly possible to create good remixes. but if half of all original works are junk, then two thirds of remixes are junk, or something like that.
now, i think that an argument can be made that remixes should be allowed to enable that one third of good remixes, and that the good always comes with the bad, and i agree. but i fear many don't, and would rather limit remixing in order to protect original works.
> i don't believe remixing is popular enough for that.
I suspect it would be a lot more popular if people didn't risk getting dragged into a courtroom for doing it.
> freely allowing remixing will only increase the ratio of junk vs good art.
Remixing has the ability to take bad art and make it better. Most of everything is garbage, but fortunately nobody is forced to be exposed to it all either. People who don't want to spend their time looking outside of narrowly curated selections of available content or what's already gained popularity never have to. All art is built off of previous works, and even if someone creates a work that you hate, someone else may by inspired by that work to make something you love. It doesn't make sense to want to prevent the creation of new creative works out of fear that they might not be "good" in your opinion.
Even if, somehow, it did make sense to hinder the creation of new creative works copyright would not be the tool for the job. Copyright already has a job. Copyright is supposed to encourage the creation of new creative works. Sadly it is currently being used to suppress art and artists, which is why it is broken and needs to be reformed.
There are some people who want copyright to be as restrictive as possible. Very wealthy and powerful industries for example. They've spent a lot of time and money to try to convince us that copyright should be as restrictive and long lasting as possible, but that's entirely for their benefit and not ours. It's bad for art, it's bad for artists, and it's bad for the public as a whole. They've convinced us to muzzle each other and lock up our own culture so they can increase their profits. The longer it takes us to fix that, the more great art we lose.
>I suspect it would be a lot more popular if people didn't risk getting dragged into a courtroom for doing it.
Well, talking about the popularity of doing remixes.. A game developer and artist in japan allowed a free-for-all on his IPs, basically people can do whatever they want to do whether it's remix his games soundtracks, make games inspired by his or write stories about his games and the amount of content generated is just staggering. Over 100 000 songs have been released in physical CD format in official Japanese conventions, and many more not counted in other countries or in digital-only forms. In the case of music, there's covers/remixes/more creative interpretations done in pretty much any genre imaginable. Here's some I've enjoyed:
https://open.spotify.com/track/7v25NVhjRtabtyZd1VOgKF?si=3f3... https://open.spotify.com/track/06MpdON26igXU9RypVjVda?si=e7a... https://open.spotify.com/track/6p3kue2ZdtVBH5QAFEOmaC?si=3d8... https://open.spotify.com/track/2WLFemt8pvSfekUBC5duXy?si=c97... https://open.spotify.com/track/38uLH7V5AVzHvZ0uc07ZtR?si=c40... https://open.spotify.com/track/73MhkPNN5Txn5oELXa4G6A?si=3b7...
Which by the way also follows your point :
>Remixing has the ability to take bad art and make it better
Although I wouldn't call the original touhou soundtracks 'bad art', they are flawed creations: Zun is good at creating catchy melodies and overall composition, but the quality of the instrumentation is poor (mostly Roland SC-88 and Edirol SD90 presets, not the most musical of sample based synthesizers IMHO. Of the early sample technology, the mt-32 and D50 are more interesting than the sound canvas series) and the fans have taken something that had potential and turned it into things that are worth listening to standalone.
Example of the art:
- https://ibb.co/wyMdvvd
_________________
Regardless of the outcome, Warhol wins.
Art really comes down to two things: content and style.
Warhol’s style is definitely defined, it is copied all the time, and odds of a court enforcing the estate’s rights to that style are zero. Regardless of if he’s paid for it, no one will ever be able to take that from him — not even the American Supreme Court.
The photograph referenced in the case is not an original work of art. Photographer happened to get access to a celebrity and took a photograph that if combined with 1000s of other photographs by photographers on the same day of the same celebrity would not be distinctive — it literally deserves no protection.
Warhol, if alive, regardless of the outcome in court would have produced even more meaningful art based on the experience, which would have enriched the world.
The litigant in this case, unless case is thrown out has literally contributed nothing, deserves nothing — and if America rules in their favor, that is exactly what Americans deserve too. The litigant, if remembered, will not be remembered as an artist, but as the troll they are.
Ironically, the image you linked completely disproves your point. The derivative work is identical to the point that it is an obvious copy. Warhol should absolutely have sought permission, especially since he and his estate have profited handsomely from the copy.
It’s worth noting that this particular Warhol piece was done much later in his career after he had established his style. Usually he didn’t even execute the work, it was done by assistants in the studio. This painting of Prince is an example of Warhol as art business — which incidentally was one of his statements as an artist.
Opinion: bout the photo and the painting are actually not very good representation of either artists work. I imagine both the photo and the painting would be considered unimportant if it wasn’t for this legal wrangling.
There are many ways that this issue could be approached. For example, could Warhol be allowed fair use in execution but, post-mortem, his estate pay? After all, one thing that the author of the article did not go into is that this argument is really no longer about the creative act.
Despite your emphasis, I don't find that anything has been "obvious" or "proven" about these pieces. The fact of the ongoing lawsuit implies it's not definitive for the authorities involved either.
If you see it so clearly, it's because you're uninformed about or otherwise disrespectful to the actual social norms/rules at play.
But you don't know whether you will profit or not before you make the work. And asking for permission after the fact is too late and might even weaken your fair use case.
I should retract the part about profiting, but it's there because, undoubtedly, given Prince's iconic status even at the time, and Warhol's reputation, it has a bearing on the outcome. Ultimately the moral thing to do, artist to artist, would have been to seek permission.