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When Judges Are Determining Whether Or Not Art Should Exist... We Have A Problem

Culture

from the judges-as-art-critics dept

Fri, Feb 3rd 2012 7:21am — Mike Masnick

We've written about the somewhat horrifying ruling in the Richard Prince appropriation art case before. If you haven't been following the details, Prince is an appropriation artist, who takes works he finds elsewhere, and modifies and transforms them into different pieces of artwork. The law around this kind of artwork is tragically murky -- with some cases ruling that appropriation art is fair use, and some ruling otherwise. The Prince case got extra attention for a few reasons. One is that Prince is considered one of the biggest name artists around, and his works can sell for millions of dollars. The second is that this case also implicated the gallery that showed Prince's work, raising some serious questions about secondary liability for galleries, and whether or not galleries themselves must become copyright experts. Finally, the ruling suggested that Prince's artwork -- valued at a few million dollars -- might need to be destroyed..

This is the truly horrifying part. Whether or not you appreciate the work, clearly some people do like it.

Personally, it's not my taste, but I'll be damned if my own personal taste (or any other third party's personal taste) should ever be the determining factor in whether or not any particular piece of art should exist.

And, yet, that's what we have here. While the case is on appeal, the NY Times recently ran a pretty good overview of the case, and highlighted why the art world is paying so much attention to it. Especially for a younger generation, building new works of art on works that came before seems totally natural. It's a good thing:

“For the generation that I spend my days with, there’s not even any ideological baggage that comes along with appropriation anymore,” said Stephen Frailey, an artist whose work has used appropriation and who runs the undergraduate photography program at the School of Visual Arts in Manhattan. “They feel that once an image goes into a shared digital space, it’s just there for them to change, to elaborate on, to add to, to improve, to do whatever they want with it. They don’t see this as a subversive act. They see the Internet as a collaborative community and everything on it as raw material.”

At the same time the tools for mining and remolding those mountains of raw material are proliferating. In November a developer and a designer introduced an iPad art app called Mixel, aimed at amateurs but certain to end up in artists’ studios. It allows users to grab images from the Web or elsewhere, collage them almost effortlessly and then pass them around, social media style, for appreciation or re-mixing.

One of its creators, Khoi Vinh, a former design director of NYTimes.com, has been surprisingly frank when asked about the tsunami of copyright problems such an idea stirs up. “This is really a case of, you have to do it, try it and ask for forgiveness later,” he said to an interviewer. “Otherwise it would never get out there.”

What you begin to realize is that, like the wider copyright battle, to some extent this is a "generational" thing. And I don't mean that totally as an "age" thing. There are plenty of "older" people who understand these issues (or who create works via appropriation), just as there are some younger copyright maximalists. But, in general, this does seem like a generational thing, where you have generations of people who simply find the process of building on the works of art completely natural, and those who don't.

But the part that really troubles me about these discussions is a rather simple point about fair use: if the new work does not, in any way, harm the original work, it's seems positively insane to me to think that it shouldn't be seen as fair use. This point is made by Prince's lawyers:

Joshua Schiller, Mr. Prince’s appeals lawyer from the firm Boies, Schiller & Flexner, said the boundary is whether a new work of art results from the borrowing. And he argued that it was clear that Mr. Prince had made parts of Mr. Cariou’s pictures into distinctive Richard Prince works, not just copy them to pass them off as his own and deprive Mr. Cariou of his livelihood. Whether the work was successful and whether Mr. Prince’s intentions were interesting or even explainable can be left to debate. But the primary intention was to create a work of art, Mr. Schiller said, and that is the kind of creativity the law seeks to encourage.

“This is not piracy,” he said. “These are not handbags.”

I'm still waiting for someone (anyone!) to give me a compelling explanation for why it's a problem in any way, shape or form, if the new work does nothing to take away from the old work. In fact, in cases like this, it's easy to argue that the new work, since it came from a much more well known and successful artist, likely drew much more attention to the original work, thereby raising that artist's profile and stature.

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Filed Under: appropriation art, art, copyright, culture, fair use, intent, patrick cariou, richard prince

66 Comments

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Anonymous Coward, 3 Feb 2012 @ 7:29am

What about colorization of old movies?
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Machin Shin (profile), 3 Feb 2012 @ 7:34am

What jumps to my mind is simply this:

If that second image is worth millions then I am in the wrong freaking business. What the hell am I doing working all day not even making enough to make a real living when a few minutes of Photoshopping can make millions?

But putting aside my jealously of how filthy rich that guy is getting, I really don't see how that should cause any copyright issues. He obviously did change the original and create something that was his own. I assume he was smart enough to never try claiming to have taken the original picture.
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John Doe, 3 Feb 2012 @ 7:55am

There are two problems here
First off, the original photo was pirated. Second, that may be a Gibson guitar with illegal wood in it. /sarc
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Anonymous Coward, 3 Feb 2012 @ 7:57am

The issue is that, without the original image, the derivative work would not exist. Replacing the Rastafarian with a stick figure would make for a completely different work.

It's not a question of saying "what art exists", that is a red herring. It's a question of how an original image can be taken and used without permission and without rights. The second "artist" (and I use that term loosely here) could have gone out with a camera and a model and taken an image to use as part of his new work. Instead, he did the lazy thing, and just took whatever he found, regardless of it being right or wrong.

So sorry, as much as you try to turn this into a censorship issue, it really isn't. The artist who made the original photograph and resulting image should have the right to say no here.
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:Lobo Santo (profile), 3 Feb 2012 @ 7:57am

Re: There are two problems here
"Illegal Wood"

Hey, I just thought of a great name for an album!
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Anonymous Coward, 3 Feb 2012 @ 8:08am

Re:
"The artist who made the original photograph and resulting image should have the right to say no here."

How is that 'right' going to "promote the Progress of Science and useful Arts" ?
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jjmsan (profile), 3 Feb 2012 @ 8:14am

down the line payment
I can accept the first artist getting paid if he or she is paying additional money to the model. After all their would not be anything to copy without the model.
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:Lobo Santo (profile), 3 Feb 2012 @ 8:17am

Re: down the line payment
And the forest behind the model--the scene would be very different had it been sand or ocean or something.
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Gwiz (profile), 3 Feb 2012 @ 8:17am

So sorry, as much as you try to turn this into a censorship issue, it really isn't. The artist who made the original photograph and resulting image should have the right to say no here.

Censorship issue? Not sure I saw anything relating to censorship in this article.

I think the point is that all these IP laws and rights, which are supposed to enrich our culture, are actually harming it by effectively locking parts of it up for eternity plus one day.
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Gwiz (profile), 3 Feb 2012 @ 8:18am

Re:
Supposed to be response to Anonymous Coward, Feb 3rd, 2012 @ 7:57am.
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PaulT (profile), 3 Feb 2012 @ 8:32am

Re:
"What the hell am I doing working all day not even making enough to make a real living when a few minutes of Photoshopping can make millions?"

I'm pretty sure that most people thought the same kind of thing about Duchamp, Warhol and Pollack, among others. Somehow, unless you're building complex scultures or phot-realistic painting, there's always the temptation for the rest of us to go "that's easy...". If wonder if it really is?
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Skeptical Cynic (profile), 3 Feb 2012 @ 8:33am

I really am confused
On the internet if you use words or pictures from another site you are not allowed claim they are your own in whole or part even if you substantially add to them via your own commentary or embellishment without attribution. I think that is fair.

Anybody object to that?

Mike, I know you rely on works of others for most of the content on this site but you always when possible link to the original information. You also don't claim that the information is your's. Most of your website is really a work of appropriation with modification. You appropriate the reporting of others and then modify it with your commentary. This happens everyday with probably millions of websites. I don't have any issue with it whatsoever, nor do most logical thinking people. But this guy is taking works of others and modifying them with out attribution to the original.

Your use of information is fair use. His works are appropriation with modification without attribution.

Am I wrong?
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PaulT (profile), 3 Feb 2012 @ 8:36am

Re:
"Instead, he did the lazy thing, and just took whatever he found"

I wonder, did the original photograph set up models, etc., or did he just take photos of what he found while travelling?

"The artist who made the original photograph and resulting image should have the right to say no here."

What are your thoughts on the work of Warhol?
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Skeptical Cynic (profile), 3 Feb 2012 @ 8:47am

Re: I really am confused
[edit] {remove this part "without attribution" because even with attribution you should not claim they are your works}.
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Anonymous Coward, 3 Feb 2012 @ 8:49am

Re: Re: There are two problems here
Sounds more like a prison themed porno
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Skeptical Cynic (profile), 3 Feb 2012 @ 9:01am

Re:
I agree but I also think that this artist like the artist that did the Barak Obama hope poster http://en.wikipedia.org/wiki/Shepard_Fairey did so without attribution to the original.
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Machin Shin (profile), 3 Feb 2012 @ 9:01am

Re: Re:
Yeah, I suspect that it is not as easy as one first thinks. Still hard to suppress that first instinct to go "he got a million for that?".

One of these days I want to try an experiment though. I'm going to go and make some "modern art". Not sure what to try first, welding random scrap metal together, splashing paint at something, or maybe just playing with sculpty while watching TV and baking the result.

Then I will go and try to sell my "art" and see what I can get for it. The really fun part of it would be to see if some art critic tries to find hidden meaning in my totally random mess.
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John Fenderson (profile), 3 Feb 2012 @ 9:03am

Re:
Colorization of old movies does not create a new work of art. Prince's efforts, like those or remix artists everywhere, do. What they produce is a new work of art, fundamentally different from the raw materials they used.

Colorizing movies does not create a new work of art.
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Josh (profile), 3 Feb 2012 @ 9:06am

Anybody remember that episode of Pepper Ann where Milo stapled a sock to a piece of cardboard and became a rich and famous artist? That's the kind of ridiculous bullshit this guy's "art" makes me think of.

But regardless of his complete lack of talent, skill, or style, he has no less right to create stuff than anyone else.
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Anonymous Coward, 3 Feb 2012 @ 9:06am

Re:
You should take an art history class or two, you might learn some things about how art works.
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John Fenderson (profile), 3 Feb 2012 @ 9:09am

Re:
"The issue is that, without the original image, the derivative work would not exist"

Why is that an important point?

Here's my answer to my own question: the use of cultural images to make remix art is not laziness -- it is a fundamental part of the statement of the new art. Yes, Prince's art would be impossible to make without using appropriated images, because he is commenting on the existing cultural meaning of those images.

Personally, I don't care for Prince's work. However, it seems very clear to me that it is, in fact, art (and new art) by any reasonable meaning of the term.

Let me turn around the question a bit: why should the original artist have any say over this use? He is not pirating their work. He is not costing them sales. He is not depriving them of anything whatsoever.
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ChrisB (profile), 3 Feb 2012 @ 9:10am

Re:
> What about colorization of old movies?

Dude, it is simple. Ask your self this question? Is it a replacement for the original? Yes? Then it is copyright infringement. No? Then it isn't.

So yes, to take a movie, colorize it, and try and distribute it is copyright infringement.

Of course, the law is much more idiotic and conviluted than this, so who knows if what I said is right. But in a sane world, this would be the only question.
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Skeptical Cynic (profile), 3 Feb 2012 @ 9:10am

Re: Re: Re:
It's all marketing. The skill is there, but it is mostly about marketing. A friend of mine (name withheld) that makes in the 6-7 figures for her art and she even admits that she makes those numbers because she knows how to work in the right circles and has a stellar PR manager. She thinks her art is creative (I don't really agree) but not worth the numbers she is getting.
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MonkeyFracasJr (profile), 3 Feb 2012 @ 9:11am

Re: I really am confused
I think it is a mistake to compare sharing and re-sharing of information and ideas with works of art. While the two may be intertwined they are not inter-changeable. TechDirt's goal (I think) is to disseminate information. Taking news and ideas about issues that the authors are interested or concerned with and making it known among more people. Art works, original or appropriated and modified are created because the artist wants to create. They may want to tell a story or send a message or convey an idea or any of a million other possibilities. But they are motivated by the desire to express them selves more than the desire to inform others and (possibly) sway opinions.

As I said the two very similar and can have common end results, but they are not the same thing.
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Skeptical Cynic (profile), 3 Feb 2012 @ 9:11am

Re: Re: Re: There are two problems here
Too funny!!!!
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Anonymous Coward, 3 Feb 2012 @ 9:12am

Re:
Are the artists paying the manufacturers of cameras their dues?

Because you know without them there would be no photographs.

That works was done and paid for, now it was used to create something new, what is your problem exactly?

Do you think others need to pay you for the use of something you got paid already?

Do you believe you have rights to appropriate all the work done on top of that just because you think you own something that was modified?

So the guy has all the trouble to paint something using a photo as a canvas, get people to notice it and do all the leg work to make it worth and you should rip the benefits?

That is called blood sucking.
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ChrisB (profile), 3 Feb 2012 @ 9:13am

Re: Re: Re:
Watch "Exit Through The Gift Shop" or "My Kid Could Paint That". Art is not about effort. You don't pay millions for a Warhol because it was difficult to create. If you want to pay based on effort, by a car. You pay for his name.
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Anonymous Coward, 3 Feb 2012 @ 9:16am

Re: Re:
"I wonder, did the original photograph set up models, etc., or did he just take photos of what he found while travelling?"

Does it matter? The moment before the shutter was snapped, there was no image, no nothing, just a guy standing there. The photographer selected his moment, his settings, his equipment, his position... and captured a moment (and processed it to a final presented image through photoshop or darkroom work.

The other guy? He did "control C, control V". A lot of fucking art that is.

Warhol? Like many pop artists, he was incredible lazy and opportunistic. Short cut to fame. In many ways his "work" was the forerunner of today's lazy artist. I really don't get the value in it at all. But the question is more of legal or illegal, and Warhol got a walk on many of these issues because of the times and the attitudes that existed back in the day. Remember, when nobody was doing it, most people didn't mind the occasional shot. When everyone is doing it, people get up in arms.

It's the same reason why the original DJs and rap music "stars" were able to get away with using other people's songs, but now it is no longer tolerated. Everyone is doing it, and it just isn't tolerable anymore.
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Anonymous Coward, 3 Feb 2012 @ 9:18am

Re: I really am confused
More importantly, when Mike quotes something, he quotes it and it shows. He adds his comments, often using quotes only to build up his (often cherry picked) version of the truth.

Attribution is only part of the issue - it's how much of the resulting work is the original. It would be on par to Mike changing the spelling of a single word in a paragraph and claiming it all as his own work.
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Bengie, 3 Feb 2012 @ 9:23am

Re:
One could use the same argument about trademarks being used in a way the company doesn't agree with, like a negative blog.
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Skeptical Cynic (profile), 3 Feb 2012 @ 9:23am

Re: Re: I really am confused
Art is a creative expression. Writing is a creative expression. Both work off the prior existing art. Both are done to say something.

Do I think we should have to give attribution for each phrase or statement that was once said by someone else? No. But if I use a large part of what you said in my work then I should give you credit. Period. If you use several paragraphs from someone else's work do you not think you should give credit? And are you saying that the above work is not the equivalent to a couple of paragraphs?
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Skeptical Cynic (profile), 3 Feb 2012 @ 9:27am

Re: Re: I really am confused
Really? Don't complicate it to that level. We don't need Copyright percentage judges. That determine whether or not a derivative work changed x% of the original work.
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Anonymous Coward, 3 Feb 2012 @ 9:55am

Re: Re:
"Let me turn around the question a bit: why should the original artist have any say over this use? He is not pirating their work. He is not costing them sales. He is not depriving them of anything whatsoever."

That is unclear. I would say that the secondary copy work may actually hurt the public's view of the original piece, taking away in some manner from it's uniqueness and such.

"Here's my answer to my own question: the use of cultural images to make remix art is not laziness -- it is a fundamental part of the statement of the new art."

It's still lazy as hell, and the "statement" is not improved by it. It isn't parody, it isn't some sort of grand political statement, it's someone doing a quicky thing in photoshop and pretending to be an artist.

The second work would be much better if the artist took the time to find a similar subject, to locate a suitable location, to dress the person up with perhaps funny cardboard cutout blue glasses, and then taken the image home to "add" the guitar. it would have allowed them to focus on what in fact they were choosing to make a statement about, and focus on it.

Instead, their work says to me "I am too lazy to be a real artist", and they are no better than Perez Hilton drawing cocks and cum drops on celeb faces.
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Anonymous Coward, 3 Feb 2012 @ 10:16am

Re: Re: Re: I really am confused
It isn't "percentage" but how it is presented. Mike always makes sure that quotes he uses are presented differently than his own words, using indented, italicizes paragraphs, or clear quotes, or similar. He doesn't just change a word in a paragraph and claim it as his own. That is the key, it's not about percentage.

However, let's be clear as well. The second image isn't just "based"on the first image, it's the first image plus a few minor additions (and the artist didn't create most of them either). It isn't remarkably similar to the original, it is the original. If the Obama Hope poster thing was bad, this is an outrage.
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Anonymous Coward, 3 Feb 2012 @ 10:31am

Re: Re: Re:
If everyone is doing it, then how is it not tolerable? Logic much?
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Skeptical Cynic (profile), 3 Feb 2012 @ 10:40am

Re: Re: Re: Re: I really am confused
Ok, agreed. I do agree that it is barely a derivative work. At least with Obama hope image it is very different.
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Togashi (profile), 3 Feb 2012 @ 10:56am

Re: Re: Re:
I would say that the secondary copy work may actually hurt the public's view of the original piece, taking away in some manner from it's uniqueness and such... The second work would be much better if the artist took the time to find a similar subject, to locate a suitable location, to dress the person up with perhaps funny cardboard cutout blue glasses, and then taken the image home to "add" the guitar... Instead, their work says to me "I am too lazy to be a real artist", and they are no better than Perez Hilton drawing cocks and cum drops on celeb faces.

Yeah, well that's just, like, your opinion, man.
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Anonymous Coward, 3 Feb 2012 @ 11:02am

Re: Re:
define useful.
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Anonymous Coward, 3 Feb 2012 @ 11:33am

Re: Re: Re: Re:
If everyone is doing it, you make it less likely that anything original is created to work from. It's self defeating.
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khory (profile), 3 Feb 2012 @ 11:40am

Re: Re: Re:
"It's still lazy as hell, and the "statement" is not improved by it. It isn't parody, it isn't some sort of grand political statement, it's someone doing a quicky thing in photoshop and pretending to be an artist.

The second work would be much better if the artist took the time to find a similar subject, to locate a suitable location, to dress the person up with perhaps funny cardboard cutout blue glasses, and then taken the image home to "add" the guitar. it would have allowed them to focus on what in fact they were choosing to make a statement about, and focus on it."

All of this is your opinion. The thing about art is that it is very subjective to each person. While you don't see anything more than some jerk playing around with Photoshop, perhaps the artist and others in his audience see some type of meaningful social commentary. This commentary would be possible without using the existing photo.

The whole point of commenting on something in this fashion is that the existing work already has a social or cultural message associated with it. Getting someone to model for a new photo isn't going to work because that photo doesn't have the same meanings associated with it.

Besides, trying to make meaningful social commentary on your own stuff is usually hubris more than it is art.
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Anonymous Coward, 3 Feb 2012 @ 12:35pm

Re:
Who cares? As long as he didn't say he took the first image when he didn't and he credits the original artist, he's done nothing wrong. The first artist shouldn't have put his work into the public space if he didn't want other people to see it and do what they want with it. Once something's out there, it's out there. If you want to control your shit, don't release it publicly.
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Machin Shin (profile), 3 Feb 2012 @ 12:43pm

Re: Re: Re: Re:
You are paying for a name almost every time you buy anything. You say if I want to pay based on effort buy a car. Ok, you really think the guys at Ferrari put $257,000 worth of effort into building the 458 Spider? Somehow I don't think so. You are paying for the name Ferrari. It is the same with lower priced cars as well.

The value of art is just really interesting to me. The cost is purely based on the demand. No one "needs" that picture. They are paying millions for it because they want it. I just find it interesting the kind of things people want to buy. A lot of it has to do more with the social aspects than the actual art.

I'm willing to bet those spending millions on art like that are doing it in large part because they can. It allows them to show off. I see nothing at all wrong with this, I just think it is fun to look at and observe. I myself have spent plenty of hard earned money on art.
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ltlw0lf (profile), 3 Feb 2012 @ 12:44pm

Re:
The issue is that, without the original image, the derivative work would not exist. Replacing the Rastafarian with a stick figure would make for a completely different work.

I have a feeling that the artist would still be sued, even if it was a stick figure. Their mentality is that it should have been created from scratch, "because only good artists create from scratch." It is a mantra I've heard more than a few times here to defend these lawsuits. My response, as always, is show me something that was an entirely original creation, not inspired by something else, and I have yet to have anyone offer something that comes close. We live off the backs of giants, and every work of art is derivative in some form or another. Even the muses come from Ancient Greece.
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Pat, 3 Feb 2012 @ 12:50pm

http://andyontheroad.wordpress.com/2009/09/13/joe-satriani-v-coldplay-settles/

It's a very murky area......could the work fall under parody? Or is someone just making a quick buck off the backs of others? And even so, is making a quick buck off someone else really that bad? One famous stance (coincidentally or ironically attributed to multiple sources) is, "Good artists copy, great artists steal."
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Machin Shin (profile), 3 Feb 2012 @ 12:51pm

Re: Re: Re: Re: Re:
Is it just me that gets sick of the "I'm saving you from yourself" argument?

If it really is so that all these terrible things people are doing will just result in no new content, then why not just let them do it? Before long they will see the error of their ways, there will be nothing to steal or copy. I think the problem is everyone knows that would NEVER happen.

People will create things for the sake of creating things. It really does happen. A guy walking down the street that comes up with a good beat in his head is not going to just toss it out because someone might steal it. Well, some might, but not everyone is totally devoted to making money.
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Rapnel (profile), 3 Feb 2012 @ 12:59pm

Re: Re: Re: Re: I really am confused
The two images relay wholly separate messages. 100% different level of intimacy. 100% different feeling. 100% different pieces of "art". The medium of one is a moment in time. The medium of the other is a picture of a moment in time.

Any cause of action here should be based entirely upon any direct harm to the original and/or to the original photographer (e.g. Now I can not sell my images, they are worthless (not to be confused with worth less)) - imho.
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Anonymous Coward, 3 Feb 2012 @ 1:00pm

Re: Re: Re:
And now we've come full circle to the point of the article above: judges shouldn't be determining what art is useful or not in a copyright case and using that as the basis of who is infringing whom. Not that I believe for a second that your position is honestly 'well, if the art was more useful it would be ok.'
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Skeptical Cynic (profile), 3 Feb 2012 @ 1:04pm

Re: Re: Re: Re: Re: I really am confused
So you really think that it's 100% different? Just wanting to clarify your thinking.
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Anonymous Coward, 3 Feb 2012 @ 1:04pm

Re: Re: Re:
That's simply not true at all. There was something before the shutter was snapped which the original artist studied and from which he drew the knowledge to select 'his' moment, 'his' settings, 'his' equipment, 'his' position. All art is derivative of other art. You're drawing a distinction that is without difference.
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f0nZi3 (profile), 3 Feb 2012 @ 1:09pm

Sooo... no more lolcats??
An Internet without various meme's is an Internet I don't want.
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Rapnel (profile), 3 Feb 2012 @ 1:13pm

Re: Re: Re: Re: Re: Re: I really am confused
I'm referring to what the pieces "say" or relay to the observer.
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Anonymous Coward, 3 Feb 2012 @ 1:31pm

Re: Re: Re: Re: Re:
How is collage self-defeating?
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Jeffrey Nonken (profile), 3 Feb 2012 @ 2:58pm

Well, there go all the Monty Python animated bits.
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Anonymous Coward, 3 Feb 2012 @ 4:54pm

Re: Re: Re: Re:
perhaps... or maybe he just handed the camera to a monkey and let it take the photos. Oh sorry, thats a different conversation, isn't it?

http://www.techdirt.com/articles/20110706/00200314983/monkey-business-can-monkey-license-its-copyrig hts-to-news-agency.shtml
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Torinir (profile), 3 Feb 2012 @ 11:36pm

BSF... didn't they "handle" the SCO case against Novell and IBM?

If so, I think Mr. Prince will have a very hard time winning. :/
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Anonymous Coward, 3 Feb 2012 @ 11:37pm

Re: Re: Re:
I say taking a black and white photograph of a semi-nude man in the middle of a forest is not something original at all.
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Jalek (profile), 4 Feb 2012 @ 12:49am

Legally, if you sing "Happy Birthday", written in 1893, in front of anyone, or record someone singing it, you owe AOL Time Warner and you can send payment through ASCAP.
That's how twisted copyright is today.
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Idobek (profile), 4 Feb 2012 @ 2:03am

Re: Re: Re:
No need we're discussing the "science" part - which makes it even more ridiculous.
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Jillie, 4 Feb 2012 @ 7:56am

Wow
How ignorant can our courts be! Look at any arts and crafts project...its the same, you take fabric or scrapbook paper that another artist has created and alter it! Geez! We have a lot of way more important things to worry about at the moment!
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Suja (profile), 4 Feb 2012 @ 9:42am

Re:
i can't believe there are still people besides me who remember that shwo
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Androgynous Cowherd, 4 Feb 2012 @ 10:22am

The fair use factors.

1. Nature and character of the use.

The use is clearly transformative. Strongly favors a finding of fair use.

2. Nature of the work used.

It's published, rather than unpublished, which weakly favors a finding of fair use.

3. Proportion of the work used.

Almost all of it, which does not favor fair use.

4. Effect on the market for the work used.

Negligible to beneficial, which strongly favors a finding of fair use.

With three factors in favor, including the particularly significant "effect on the market" factor, this is a textbook example of fair use. Let's hope the courts educate the plaintiff on this topic, with an analysis similar to the above.
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Gene Cavanaugh (profile), 4 Feb 2012 @ 11:58am

Prince's work
Right on; though it shouldn't matter whether it helps or hurts the original artist. It is new art.

When Shakespeare developed his work, he undoubtedly "hurt" the people whose work he built on, since he ran his works at the same time they did, and "everyone" wanted to see his plays.

The point is, society profited greatly from his work, less so from the work of the people he borrowed from.
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nasch (profile), 4 Feb 2012 @ 6:13pm

Re: Re: Re:
It's still lazy as hell, and the "statement" is not improved by it. It isn't parody, it isn't some sort of grand political statement, it's someone doing a quicky thing in photoshop and pretending to be an artist.

US copyright law does not recognize the sweat of the brow argument. How much work it took is completely irrelevant.
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Anonymous Coward, 4 Feb 2012 @ 8:09pm

Re: Re:
One thing about old films, of course, is that most of them should be in the public domain.
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Lawrence D'Oliveiro, 5 Feb 2012 @ 3:19am

Re: One of these days I want to try an experiment though.
That, and better, has been done.
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John Fenderson (profile), 6 Feb 2012 @ 9:03am

Re: Re: Re:
So what you're saying is that because you don't understand it and hate it, it is OK for it to be illegal.

It's fine if you detest this art (I know you don't consider it art, but I lack a better term). But whether or not it's lazy, derivative, or even art at all changes nothing about whether or not it should be illegal.

This is as clear a case of fair use as you can get. Prince is not copying the original work and calling it his own. He is using the original work like other artists use paint, or musical notes. It is the medium with which he is working. His work is clearly transformative, and far from just making a copy of the original, he made it something that cannot be confused with the original.
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