Last year Walled Culture wrote about an important copyright case before the US Supreme Court. It concerned Warhol’s images of the musician Prince, which are based on a photo taken by Lynn Goldsmith. At issue was whether this was fair use of the work. By seven to two, the Supreme Court judges ruled that it was not fair use. Since copyright cases rarely come before the top US court, and this one touched on a crucial issue for the digital age, that result is naturally disappointing. An interesting post on the Creative Commons blog tries to take a more positive view:
While it’s hard to predict the full ramifications of this decision at this point, our initial opinion is that this decision is not ideal, but also not the death knell for transformative fair use that many feared it could have been.
For example:
if a use does not serve the exact same function as the original, then this decision leaves the door open to argue that it has a different “purpose” from the original. The decision’s distinctions between these different kinds of uses suggest that a case over this very same work used for another purpose might have had a different outcome.
However:
By failing to focus on how Warhol’s piece transformed the original photograph and added a new meaning and message to the original, the Court’s opinion may influence future decisions to also undervalue this point and undermine the purpose of fair use itself.
This goes to the heart of these arguments about fair use. They require judges to exercise what is essentially an artistic rather than legalistic judgement. Even tiny changes to the original can be transformative and create a new creative work. Warhol is one of the best examples of this, since many of his works take existing images – sometimes completely mundane ones like soup can labels – and turn them into something that is genuinely new and creative.
A fascinating article about Warhol and the Commodore Amiga shows that he was way ahead of his time in understanding the likely impact of digital tools – and in embracing them. It’s a pity that nearly 40 years after Warhol grasped what computers would mean for the effortless transformation of images into new works of art, the Supreme Court still doesn’t.
Featured image by Amiga World Magazine (January 1986).
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