larryepage Loc: North Texas area

Again...Vanity Fair NEVER licensed the photograph. Newsweek did. And the life of a copyright has nothing to do with the life of a subject person or of the life of a person purchasing a license...only the life of the original owner of the work, usually plus 50 years under the most recent laws.

Warhol's estate had no authority to license anything. They owned no rights to Ms. Goldsmith's photograph. Neither did Prince's estate. They never did according to the ruling. The one-time use agreement was with Newsweek. The ruling essentially is that Warhol's painting is a copy, not a "derivative work." If you look at the two side by side, they are pretty much correct.

burkphoto Loc: High Point, NC

I just wanna know when all those unreleased Prince tapes with Tal Wilkenfeld playing bass on them are finally going to be released. Tal said she had a total blast playing with Prince. (Of course, she can play bass with anyone to the point of almost upstaging them!)

Rongnongno Loc: FL

Funny thing in this teapot tempest...

No one mentions that the foundation started the lawsuit and the photographer counter-sued...

In 2016, The Andy Warhol Foundation pre-emptively sued Goldsmith when concerns regarding use of her second image came up.

“I think they misjudged when they sued me for my own copyrighted photo,” said Goldsmith. “They thought they were going after a woman or girl, and they should have looked deeper. As a baby boomer, I didn’t get to do what I did by being someone who just accepted things that people wanted me to do or not give me credit or whatever. I didn’t get here by kowtowing to power.”

Lawyers for Warhol’s foundation argued that the artist had transformed the photograph and was therefore protected by the “fair-use” doctrine.

larryepage Loc: North Texas area

Warhol didn't respect convention much when he was alive. It appears that his foundation is following in his footsteps. There are numerous current sources that purport to show the painting and photograph side by side. The painting is a very literal rendition of the photograph. Since that was true of much of Warhol's work, the case for "transformation" seems pretty thin to me. His best-known and remembered work is very literally and accurately rendered illustration.

MrMophoto Loc: Rhode Island "The biggest little"

As a graduate student in art school (Rhode Island School of Design) We had a seminar on the "legal issues of art". The question of plagiarism was addressed and, at the time, a prominent lawyer from Boston who had a reputation for helping artists, told the group that in the eyes of the legal system only about 20% of any image, song, or other creative piece needs to be changed in order for the reproduction to NOT be considered plagiarism. That never seemed like a lot to me.

profbowman Loc: Harrisonburg, VA, USA

To me, there appears to be two aspects to the concept of copyright.

1. As CHG_CANON and others have noted, to have legal recourse to someone using our photos or other works of art, we must register them with the Copyright Officwe in the US. I am guessing there may be similar offices in other countries. Here is the link to the General FAQs of the US Copyright Offfice.
https://www.copyright.gov/help/faq/faq-general.html

2. But there is also the ethical aspect of the copyright concept. That is that even if not registered, material is still copyrighted from the moment it is created and is not free to be "stolen" by others. So, unless we get permission to use a work of art or permission is explicitly given, we are ethically bound to honor the artist's ownership and not use the work.

"A work is “created” when it is fixed in a copy or phonorecord for the first time; where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time, and where the work has been prepared in different versions, each version constitutes a separate work."
(From Chapter 1 of Title 17 of the "United States Code")
https://www.copyright.gov/title17/92chap1.html

Thus, to be an ethical person means we respect others' rights and do not use other's works without permission. The ethical issue is not whether an "author" can sue us in a court of law or not but whether authors own their creations from the moment of creation. [The copyright office defines author as the person who has created a work--a writer, photographer, composer, etc.]

Note: I am not a lawyer and do not claim to be giving legal advice. --Richard

larryepage Loc: North Texas area

You bring up a very interesting and important extension of the discussion. A friend who is a pretty good lawyer told me one time to "remember that the law has nothing to do with right and wrong, only with what is legal and what is not legal." (I was trying to decide whether to appeal a traffic ticket that I believed I'd gotten unfairly, even though I had found myself in a crosswalk with a pedestrian.)

Ethics does deal with right and wrong, and many feel that being ethical is more important than being legal. I'm in that group, but will readily admit to being far from perfect at living it out.

The challenge seems to be that many (most?) artists seem to believe that being an artist requires pushing (or crossing) ethical and sometimes even legal boundaries. We even read here of things members have done "for the sake of the work."

The result is many times that artists are interested in something like copyright (which is really an ethical thing at its core) only to the extent that it benefits them personally. There is little or no concern for the protection that it might provide someone else.

The death and burial of The Golden Rule has significantly changed treatment of others and overall quality of life.

BobHartung Loc: Bettendorf, IA

The issue being skirted here is how or if this will carry over into so-called derivative works when a photographer/artist modifies/copies a © work and publishes or sells it as his own.

Nukepr Loc: Citrus County, FL

I agree with the ruling. I am president of a community theater and we do plays that are copyright protected. We pay for the right to perform the play, but we cannot do anything else with the play, such as transforming it into our own product or editing the play. We have paid for the right to perform the play as written a limited number of times, nothing more. I think this is a fair and reasonable way to protect the creator of an artistic work.

larryepage Loc: North Texas area

Our high school choral department presented a Broadway musical every year. I was in the pit band several times. Our scores, like the scripts and musical "books" were rented as part of the performance licensing agreement. Nothing could be copied. The musical scores were an unusual large size that would have been very difficult to copy at the time. We had to be careful not to damage the materials in any way, and could only make notations with a soft-lead pencil.

After the last performance, the band, all performers, the crew, and the director sat down together for an "erasing party." The materials were inspected when they got back to the rental brokerage in New York, and the school was charged for any additional cleaning or repair that was needed.

Of course the materials were copyrighted and clearly marked, but the additional due diligence practiced by the owner to make copying or other non-conforming use difficult has always been interesting to me.

geonque Loc: Kitsap Co., WA

The issue for photographers to be concerned with is that this is another ruling affirming that fair use is not an easy defense against the unauthorized creation of a derivative work. The holder of the original copyright must grant permission (a license) for the production of a work based upon or derived from that original. That includes work in a different medium than the original. While it is pretty easy for most people to understand that a painting of a photograph is a derivative work under copyright law, it seems to be more difficult for photographers to recognize that a photograph of a painting is also one. And it also seems to be a stretch to understand that the ownership of the physical original does not give the owner a license to create derivative works of it. So if I buy a painting and photograph it, I have technically infringed the artist's copyright, just as I would if I photographed a painting in a museum, or a client's house with their permission. Fair use in such cases is most likely to succeed as a defense if the work of art is in a public space, and if the art work only occupies a portion of the photograph, i. e. is incidentally captured in a photograph of a larger panorama or portrait. The fact that most such captures are never commercialized, is unlikely to be noticed by the copyright owner unless published, and that it would cost the artist a significant amount of money to defend his rights are issues of practicality, not of the law. Incidentally, not just the usual art work, but architecture, the language and cartoons on a T-shirt, and fashion design itself can be covered by copyright. Maybe stick to wildlife if you want to be sure you have not stepped on somebody's toes.

ecurb Loc: Metro Chicago Area

Let's see:
A grayscale silver print modified by false colorization, silk screen print so different media and size. Seems different enough from original image to constitute fair use.

AzPicLady Loc: Behind the camera!

Not according to the lawyers I've worked with, unless it's your own original image.

geonque Loc: Kitsap Co., WA

The concept of derivation is pretty plastic. It has also been considered a copyright infringement to write a novel using the same characters as the original author, even though the characters may be doing completely different things in the infringing work. Sampling a few notes from a song recording to make a more or less unrecognizable mix has also been found to be infringement. And making a movie based on the story in a song is a no-no, so The Gambler had to clear the script.

Fair use is not dependent on how far from the original you deviate, but on whether you could copy a portion of the original exactly and still meet the tests.

burkphoto Loc: High Point, NC

Only if authorized by the photographer. I modify my own work, but would never do anything to someone else’s without their blessings in writing and with fair compensation. Supreme Court just agreed…