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Comment by pavlov | Hacker News Reader

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.

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.

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.

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)

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?

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!

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.

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.

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.)

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 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 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

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