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copyright and transformative

Switch Blayde ๐Ÿšซ

We've discussed this before. The U. S. Supreme Court is hearing the arguments on this now. "At issue is whether an artist may use copyrighted material without paying a fee if the new work is "transformative" in its meaning and message."

"The Supreme Court agreed to decide Warhol Foundation vs. Goldsmith because judges were divided over whether a new work that "transforms" a copyrighted original is protected as fair use."

Full article at: https://www.yahoo.com/news/supreme-court-copyright-case-did-194018502.html

Dominions Son ๐Ÿšซ

@Switch Blayde

"The Supreme Court agreed to decide Warhol Foundation vs. Goldsmith because judges were divided over whether a new work that "transforms" a copyrighted original is protected as fair use."

Personally I don't expect that argument to carry the day.

The reason why is that the right to create derivative works is one of the exclusive rights explicitly reserved by copyright law to the owner of the copyright.

https://www.law.cornell.edu/uscode/text/17/106

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

Deeming a new work that "transforms" the original to be per-se fair use would gut the exclusive reservation to the copyright owner of the right to create "derivative" works.

Switch Blayde ๐Ÿšซ

@Dominions Son

Deeming a new work that "transforms" the original to be per-se fair use would gut the exclusive reservation to the copyright owner of the right to create "derivative" works.

That's why the Court is hearing it. According to the lawyer for the photographer:

But Blatt, Goldsmith's lawyer, said this view, if upheld, would upset all of copyright law.

It "would transform copyright law into all copying, no right," she argued, saying that songs could be altered, book endings changed or photographs airbrushed to escape the reach of a copyright.

In that scenario, she wrote in her brief to the court, "fair use becomes a license to steal."

StarFleet Carl ๐Ÿšซ

@Dominions Son

Deeming a new work that "transforms" the original to be per-se fair use would gut the exclusive reservation to the copyright owner of the right to create "derivative" works.

Fascinating (to me, anyway) reading. This is the opposition document as filed by the attorneys for Goldsmith.

awnlee jawking ๐Ÿšซ

@Dominions Son

Deeming a new work that "transforms" the original to be per-se fair use would gut the exclusive reservation to the copyright owner of the right to create "derivative" works.

Why? A derivative work is surely not transformative.

AJ

Replies:   Dominions Son
Dominions Son ๐Ÿšซ

@awnlee jawking

A derivative work is surely not transformative.

You are surely wrong.

A screen play/movie derived from a novel is one of the classic cases of derivative works.

Are you suggesting that there is nothing transformative about turning a novel into a movie?

Replies:   awnlee jawking
awnlee jawking ๐Ÿšซ

@Dominions Son

Are you suggesting that there is nothing transformative about turning a novel into a movie?

The medium might have changed but if it's clearly the same story then I don't think it can be described as transformative.

AJ

Replies:   Dominions Son
Dominions Son ๐Ÿšซ

@awnlee jawking

The medium might have changed but if it's clearly the same story then I don't think it can be described as transformative.

But it's never exactly the same story.

Some scenes in the novel always get left out (either for length or because the nature of the scene means it won't work in a visual medium) and scenes not in the source novel are sometimes added.

Replies:   awnlee jawking
awnlee jawking ๐Ÿšซ

@Dominions Son

That's the definition of derivative ;-)

AJ

Replies:   Dominions Son
Dominions Son ๐Ÿšซ
Updated:

@awnlee jawking

That's the definition of derivative ;-)

It also qualifies as "transformative" because it changes the base work. These things do not exist in a state of zero overlap.

And if "transformative" is read as broadly as the district court did in this case, the amount of overlap between "derivative" and "transformative" is quite large.

Replies:   awnlee jawking
awnlee jawking ๐Ÿšซ

@Dominions Son

And if "transformative" is read as broadly as the district court did in this case, the amount of overlap between "derivative" and "transformative" is quite large.

I see transformative and derivative as antonyms, with little scope for overlap.

What did the district court rule?

AJ

StarFleet Carl ๐Ÿšซ

@awnlee jawking

What did the district court rule?

They'd ruled it could be used, which is why this is at the SCOTUS level. If you want to know more, read my link above.

TL:DR - Goldsmith took a photo, licensed it to Vanity Fair for a fee, for A specific use, while EXPLICITLY stating in the paperwork no other use of the photograph was allowed. Vanity Fair agreed, hired Andy Warhol to make the silkscreen of the photo for their magazine, and the photographer was given credit.

Fast forward 30 years. Andy Warhol had, WITHOUTH PERMISSION, made additional silkscreens of the photograph in a larger size. His estate wanted to sell them, and sued Goldsmith, didn't want to give her any licensing fees, or credit for the original photograph. Note that Andy Warhol HAD been successfully sued in the past for doing EXACTLY the same thing because Andy had a tendency to crib other people's work.

Dominions Son ๐Ÿšซ
Updated:

@awnlee jawking

I see transformative and derivative as antonyms, with little scope for overlap.

Not that is not at all the case. A transformation of X is necessarily derived from (a derivative of) X.

The general rule for a transformative work being fair use has been that it needed to change the base purpose/message of the work.

And if you go here: https://www.copyright.gov/circs/circ14.pdf you will see a list of examples of derivative works.

In that list of examples is the following: A drawing based on a photograph

This is almost exactly what Warhol did with the photograph at issue in this case.

For the district court to stretch the meaning of transformative in fair use far enough to cover what Warhol did with the photo at issue swallows the rule on derivative works entirely.

The reasoning of the district court here would easily cover any conversion of a novel into a movie.

Replies:   awnlee jawking
awnlee jawking ๐Ÿšซ

@Dominions Son

Transformative is turning a mouse into Cinderella's coach horse.

Derivative is dressing up the mouse in fancy clothes.

Your link rather supports my view - a movie based on a book is derivative, not transformative.

AJ

richardshagrin ๐Ÿšซ

@Switch Blayde

"transforms"

"A transformer is a device that transfers electric energy from one alternating-current circuit to one or more other circuits, either increasing (stepping up) or reducing (stepping down) the voltage." Sounds like a revolt.

Grey Wolf ๐Ÿšซ

@Switch Blayde

I would disagree with the characterization of this case (in essence), unless of course the Supreme Court should issue a greatly expanded ruling. The case isn't arguing 'whether an artist may use copyrighted material without paying a fee if the new work is "transformative" in its meaning and message', the case is arguing whether a lower court correctly decided whether the new work was transformative.

The difference is pretty significant. Neither side is asking or implying that the 'transformative' test be removed. They're just at odds as to whether this particular use was or was not transformative.

The Supreme Court recently essentially upheld the four-pronged Fair Use test in applying it to another case (Google v Oracle). Interestingly, that case noted that Warhol's use of the Campbell's soup cans would likely be transformative, despite there being less 'transformation' than in this case - but the reasoning is that Warhol's soup can work was in pursuit of commentary on consumer culture, while Warhol's work with the Prince photo simply represents Prince (though some Justices seem to believe that it does represent a transformative work providing commentary on the nature of celebrity).

See the New York Times story: https://www.nytimes.com/2022/10/12/us/supreme-court-prince-warhol.html
or the Washington Post story: https://www.washingtonpost.com/politics/2022/10/12/prince-andy-warhol-print-supreme-court/

The questions asked by the Justices make it clear that the question is 'Was this work transformative?' not 'Is the transformative exception valid?' If the intent were to do away with the exception, one would expect an entirely different set of questions and an entirely different set of arguments, as well as a flurry of amicus briefs that do not seem to exist in this case.

As much as I believe in the 'transformative' exception as an important part of fair use, my lay view of the work in question is that the use was not significantly transformative and therefore fails on that prong of the test (which does not necessarily mean that it's not fair use, though it raises the likelihood that it is not).

But, again, unless the Court issues a much more broad ruling than expected or requested, the odds are that it won't affect the existence of the 'transformative' test, it'll just somewhat clarify what is and isn't 'transformative'.

I agree that, should the Court rule for AWF, the doors are wide open to expand what is transformative, and I would expect some interesting cases down the road. However, if Goldsmith wins, the definition of what is and isn't transformative is only a tiny bit more clear than it was before this case (again, barring some unexpectedly sweeping ruling), and we might still have a bunch of interesting cases down the road.

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