Thought some nerdy infringement folks like me might find this interesting. The following question 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. )
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.