(Very) Important copyright infringment case hitting the Supreme Court

Thought some nerdy infringement folks like me might find this interesting. The following question :point_down: is being put to the Supreme Court, and it has huge implications in the art world. (The legal brief was just filed a few days ago, but I’m not sure when it’s scheduled to be heard.)

"Issue : Whether a work of art is “transformative” when it conveys a different meaning or message from its source material (as the Supreme Court, U.S. Court of Appeals for the 9th Circuit, and other courts of appeals have held), or whether a court is forbidden from considering the meaning of the accused work where it “recognizably deriv[es] from” its source material (as the U.S. Court of Appeals for the 2nd Circuit has held)."

This case could be a game-changer when it comes to how infringement cases are decided, and it stems from the recent case involving the Warhol Foundation vs photographer Lynn Goldsmith where the lower court determined that Warhol’s work fell under transformative fair use (I personally think they got the ruling very wrong, but what do I know. ) The Second Court overruled the lower court and basically found that Warhol applying a different style to the photographs was not legally transformative enough, and the lower court relied too much on interpreting Warhol’s intent to create a different “mood” with the images. And now this Supreme Court case is attempting to decide whether the courts are allowed to interpret an artist’s meaning/purpose behind a work when it comes to determining if the new work is legally transformative. (But this is just my interpretation of the cases, and my summary could be very wrong. :stuck_out_tongue: )

This article has a good summary of things.

For those who just want the bullet-points, here’s what the article says about the impact the ruling can have on artists like us.

"Changing a borrowed work through the use of a different medium, a different visual style (even if recognizable as the style of a famous artist), or minimal alterations whereby the borrowed work is still recognizable will likely not be enough to constitute a transformative use.

When the new artwork does not clearly comment on or relate back to the original work (e.g., parody, commentary, criticism, etc.), then something more than artistic intent or the assertion of a different or higher purpose will also be required."

And for the legal nerds who are interested in the legal briefs and filings, here ya go.


I am reminded of the comment “when elephants fight the grass is trampled”.
That Warhol was an employee of Vanity Fair probably has another whole wrinkle that Vanity Fair wants no part in, but there is likely an employment contract somewhere defining the circumstances that would have bearing on the case, except that it will not likely be involved in the discussion.

Being a big pot of money, and the artist dead will bring much more fight than it would get in another set of otherwise identical circumstances


There’s an awful lot of just straight rip-off stuff goes on in the art world that is supposedly “transformative”. No, making it big and adding a caption is not transformative. No, stick the equivalent of photoshop filter on it and re-printing is not transformative. No, converting to black and white is not transformative. But all of these have gone to court and been accepted as transformative.

And 99% of the time, photographers who are typically not well paid in the first place - and certainly not as well paid as the artists who rip them off - are the ones at the rough end of all this. Yet musicians sue “samplers” and “that rhythm is a bit like mine” and succeed all the time.

Can you tell I’m a bitter photographer :slight_smile:


Vanity Fair is in the clear because they only commissioned one piece of work, and they did the right things by licensing the image as source work for their publication. The problem arose when the photographer discovered years after the fact that Warhol had made a whole series of art using the same source image without getting the license for himself, and those images were later used for a tribute magazine after Prince’s death. This second magazine paid the Warhol estate for the licensing of the artwork, but the original photographer was never attributed or paid. (And, “when elephants fight the grass is trampled” and “what a tangled web we weave” are both extremely fitting! )

@sqw as a fellow photographer, I wholeheartedly agree; way too many “artists” get away with changing the resolution, upping the gamma, and then claiming it as unique work. (Or just taking straight screenshots of Instagram posts and selling them for $$$ in a gallery. :roll_eyes:) It’s the same in the comic book world where some pretty famous illustrators rip-off other artists work all the time, and they don’t even try to hide it.

I think this guy did a nice series about the whole thing.


As an an elephant example you can take a photo of the Paris skyline in the day but a sunset photo can get you sued and all sorts of legal issues as the folks providing the lighting on the Eiffel Tower apparently have a patent written into law that they get a piece of any photo taken. Like so much I have not sourced it widely so might misunderstand but the logic gets easily lost and ownership defaults to the one with the political juice to enforce it.


Wow. The outcome is something I’ll definitely be watching for.


True enough. Not going to impact the average tourist taking photos and posting them on FB or emailing to friends. But if you’re thinking of using a nighttime photo for commercial purposes you need a license.


There is also the thing with the bean in Chicago:


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