Althouse: Vulnerable, uncomfortable, transformative blog post.

May 19, 2023

Vulnerable, uncomfortable, transformative blog post.

25 comments:

tim maguire said...: Goldsmith's portrait looks pretty generic. There are probably thousands of photos of Prince that look more or less exactly like it. Warhol made it into something it wasn't--distinctive. The fair use argument seems clear to me. All the value comes from what Warhol added.; 5/19/23, 9:51 AM
Dave Begley said...: Good ruling for photographers like Ann.

7-2. Why was Kagan so bitter?; 5/19/23, 10:17 AM
Another old lawyer said...: "Dig, If You Will, this Picture, but Justices Say Warhol Infringed" - WSJ Headline on story; 5/19/23, 10:17 AM
cassandra lite said...: This is the bookend to Salinger v. Random House, 1987, a circuit court decision that apparently RH didn't take to the Supremes. Congress, though, revisited the issue in the Copyright Act of '92(?), noting that just because a work--in the case of Salinger it was letters--is unpublished doesn't mean it's exempt from consideration under the ordinary criteria applied to fair use. That wouldn't extrapolate to art images.; 5/19/23, 10:17 AM
Owen said...: This area of copyright law is indeed a playground, where every player (plaintiff, defendant, expert witnesses, lay witnesses, and especially the bench) is permitted, indeed encouraged, indeed required, to offer a completely subjective opinion about what is "too much like" something else along a whole series of pseudo-dimensions of aesthetics.

Pass the popcorn!; 5/19/23, 10:18 AM
mikee said...: Now do the new Winnie the Pooh and Piglet movie, Althouse!; 5/19/23, 10:28 AM
HoodlumDoodlum said...: I guess it doesn't take much!; 5/19/23, 10:59 AM
Robert Cook said...: TRIVIA TIME: Lynn Goldsmith attended college at the University of Michigan and, while there, she met and became friendly with a young student named James Osterberg. He left UMichigan after one semester (or less) to pursue a music career. He put together a band who called themselves The Psychedelic Stooges, later shortened to The Stooges. Young Osterberg became and remains known as Iggy Pop.

The former college pals later worked together professionally when Goldsmith shot photos of Iggy in various settings.; 5/19/23, 11:23 AM
Tina Trent said...: I guess the Supreme Court knows Prince when they see him.; 5/19/23, 11:47 AM
BarrySanders20 said...: Love that trivia, Cook. Wonder i she took the photo on the album where Iggy Has a Lust For Life; 5/19/23, 11:57 AM
Tina Trent said...: More trivia, Cook: Michael Jackson used special shoe brackets that rose and fell from the stage to perform the spine-defying dance moves in Thriller, but Iggy Pop could propel himself from his back to his feet, like a snake rising, using only his legs. He could have been a gymnast or ballet dancer, but he became a punk star and semi-professional golfer instead.

Flexible guy.; 5/19/23, 11:59 AM
Mike (MJB Wolf) said...: It's news to me that the F in AWF is now "foundation" instead of "Factory." Good for the court. Fair use is a good fit for a work that artistically alters the original work.; 5/19/23, 12:09 PM
Mike (MJB Wolf) said...: I find Cook's added trivia interesting. Nice.; 5/19/23, 12:10 PM
Quaestor said...: Warhol got by infringing the copyrights of others by "paying" them in kind. People who ate white cream truffle canapés between drags on a joint passed from hand to hand called him a "pop artist", but Andy Warhol was more of a Dadaist than anything else, in other words, an anti-art subversive. (Stalin had a sizeable number of those hooligan poseurs shot in the head, which may be his one positive contribution to humanity.) However, Warhol's output became unaccountably popular, much like the Monkees (zing!). The Campbell's Soup Company were pleased their tired old label was finding respect among people who despised anyone bourgeoise enough to eat the product represented. That's value given in exchange, of a sort, so leave it alone. So went the executive decision, more or less. This is what Warhol meant by his famous "15 minutes of fame" remark, in case you didn't know. And it wasn't a prediction so much as his personal ambition -- to steal anything not nailed down and compensate the injured party with notoriety.

But that was then. This is now. Nobody cares anymore. Warhol's 15 minutes expired long ago. Consequently, Goldman received no compensation, not even the ephemeral kind. Ironically, by bringing her case to the Supreme Court, Goldman may finally receive some Warhol-style royalties.; 5/19/23, 12:15 PM
BarrySanders20 said...: tim maguire said...
Goldsmith's portrait looks pretty generic.

But it is not generic. It was taken when Prince was still relatively unknown, in 1981, and was a planned portrait event by a professional photographer -- who was very well known in the celebrity picture-taking world. How do you think she got access to take the photo, to get the pose and clsoe-up she wanted? Because she is who she is, and Prince gave her what she wanted. "Silkscreen" Andy could have used any of the "thousands" of photos to do his 2016 copy job for Vanity Fair, but he chose this one and merely added shadowing and background color. Again, why this photo? Because it was the best one and captured Prince at an age and with a look that nobody else had. He got away with copying so many times the AWF didn't think they'd get called for it this time. But Goldsmith stood up to them and deservedly won.; 5/19/23, 12:16 PM
John Holland said...: Good for Lynn Goldsmith. Good news for all photographers who are trying to earn an honest buck in these trying times.

The prevailing tendancy from courts, for at least the last 20 years is, you can do it (turn someone else's photo into art) but you gotta compensate the photographer.

I look forward to reading the decision to see how they reasoned, but it seemed to me that Ms. Goldsmith had a slam dunk, and the Warhol foundation was way out of line. There's already lots of case law w.r.t. using copyrighted photos as the basis for "art" without compensation or attribution. See, for example, Shepard Fairey's HOPE poster. Fairey not only got nailed for pinching a photographer's image, but was convicted for attempting to destroy evidence showing that he started with the photograph.

Vanity Fair and Warhol had paid Goldsmith 400 bucks back in 1984 for a one-time use of the Prince photo, plus a photo credit. Then in 2016 VF ran a different version and paid Warhol's estate 12 grand. Goldsmith: no pay, no credit. Goldsmith complained, and the Warhol estate sued her. They're the ones who tried to void a straightforward and common commercial licensing agreement on the basis of "fair use". The law firms sure are handing out bad legal advice over there in Pittsburg.; 5/19/23, 12:29 PM
T J Sawyer said...: More trivia. Andy Warhol died in 1987. Prince died in 2016. Who is the artist that created the Warhol portrait - or how old was it?

If someone else created it, when? And did they receive attribution.; 5/19/23, 12:39 PM
minnesota farm guy said...: Color it orange and call it art! SCOTUS got it right. I don't think I will ever understand what made most of Warhol's production "art". Not much different from the portrait of Kramer!; 5/19/23, 1:46 PM
Dr Weevil said...: More Igguvine-Poppular Trivia:
In 1995, he published an article on Gibbon's Decline and Fall of the Roman Empire in Classics Ireland, a peer-reviewed journal. Here is a story about it.; 5/19/23, 2:04 PM
Rosalyn C. said...: @BarrySanders20 — Well argued. I agree, Goldsmith’s photo is special.; 5/19/23, 2:19 PM
Joe Smith said...: This is clearly a rip-off.

As someone who designs graphic schemes (logos, packaging, apps, etc.) I have to be very aware of what images look like.

This isn't even close...; 5/19/23, 3:02 PM
mikee said...: First Ed Sheeran, now this? So you've covered music copyright and visual copyright. Who do we get for a case on fair use of printed, copyrighted text, like ChatGPT using parts of the most recent Danielle Steele opus in a literary work for profit?; 5/19/23, 3:52 PM
Tom T. said...: The coverage of this ruling has been a bit unclear. Strictly speaking, the Court was only asked to review one element of the four-part "fair use" test; specifically, whether Warhol's licensing of the portrait to the magazine (NOT his creation of the original silkscreen) shared the same "purpose and character" as Goldsmith's photograph. The purposes were indeed the same - to commemorate Prince. This shades off into another factor, relevant to Tim Maguire's point: By making the silkscreen image available for licensing, the Warhol estate was taking commercial opportunities away from Goldsmith.

Artistic merit was not a part of the Court's analysis of this narrow point. Sotomayor describes Kagan's dissent as going in the opposite direction, and wanting to find in Warhol's favor because he's a famous artist.; 5/19/23, 5:25 PM
mccullough said...: You used to ride on a chrome horse with your diplomat, who infringed an artist’s Prince photograph, ain’t it hard when you discovered that the Supreme Court didn’t have his back after he took from you everything he could steal; 5/20/23, 12:28 AM
Narayanan said...: so the big fuss is that: Plagiarist have been allowed to claim 'protection of law' under 1A?

show how messed up USA legal system ???!!!!; 5/20/23, 6:13 AM