Fair use? Painter vs photographer.

[mediumcool]

Saw this story tonight on PDN. Interesting to see interested parties lining up on either side.

I don’t envy the judge who will hear this.

[Rob C]

Saw this story tonight on PDN. Interesting to see interested parties lining up on either side.

I don’t envy the judge who will hear this.

To me, it's delighfully simple and the crime obvious: if you copy, you have copied. There's nothing else to be said. You should be taken out into a field, tied to a tree (or a stake) and covered with treacle, at which point the local ants should be introduced into the situation. Don't you just love the job-description: appropriation artist! That alone should say all there is to be said. Burn, baby, burn!

Rob C

[jalcocer]

To me, it's delighfully simple and the crime obvious: if you copy, you have copied.

+1 on that.

[louoates]

Interesting questions raised here. I wonder what Andy Warhol would think about this issue.

[Kirk Gittings]

Aside from the obvious infringement, I have to say that the simple photographs blow away the Prince rehashings.

[Eric Myrvaagnes]

If I ever get caught robbing a bank, can I plead that I'm simply an "appropriation artist?"

[Rob C]

If I ever get caught robbing a bank, can I plead that I'm simply an "appropriation artist?"

Well yes, just as long as the judge thinks it's appropriate.

Rob C

[mediumcool]

Interesting questions raised here. I wonder what Andy Warhol would think about this issue.

I don’t recall Mr Warhol being sued by Campbell’s. 

[400Trix]

Saw this story tonight on PDN. Interesting to see interested parties lining up on either side.

I don’t envy the judge who will hear this.

Its very straightforward. AFAIK (and IANAL, so take this with a GOS*), you don't get to change your argument on appeal; you have to make an argument that the judge was wrong. So, the appeal will likely be denied out of hand.

Still, I suspect that a lot more people have heard of Cariou now than would have without Prince's infringement. Food for thought.

[mediumcool]

Its very straightforward. AFAIK (and IANAL, so take this with a GOS*), you don't get to change your argument on appeal; you have to make an argument that the judge was wrong. So, the appeal will likely be denied out of hand.

Sentence two is spot on. Judges in my experience don’t like to rock the boat by criticising their own, but interpretation of fair use is the crux of this case. Appeals do get over the line, in many jurisdictions. But changing horses in mid-stream is not going to impress.

Still, I suspect that a lot more people have heard of Cariou now than would have without Prince's infringement. Food for thought.

And I don’t see how Cariou has suffered any harm to his business or reputation. As you state, more people have heard of him because of this case. Here is a link to the photograph and the copied sculpture in the Rogers v. Koons case. Rogers [photographer] was successful in that action.

This will be an important and influential ruling. One observation I have is that Prince was very dismissive of Cariou’s work (“… mere compilations of facts … arranged with minimum creativity”) in the lower court; so why did he use them?

IANAL? 

[mediumcool]

Full judgement in Rogers v. Koons appeal.

[BJL]

I wonder what Andy Warhol would think about this issue.

I do not know about Warhol himself, but his estate/foundation is being hypocritical. In the current case, it is entering on behalf of the appropriation of clearly copyrighted material. However, when Warhol died, an NYU CS  student quickly produced a memorial T-shirt decorated with multiple copies of a photograph of Warhol, arranged and colorized in the style of his famous Marilyn Monroe painting ... And the Warhol lawyers shut him down almost immediately.

[BJL]

And I don’t see how Cariou has suffered any harm to his business or reputation.

The Rogers vs Koons ruling seems to explain it this way under the heading "4. Effect of the Use on the Market Value of the Original": without this appropriation, another artist might have undertaken a similar project, but paying appropriate fees to the photographer, so this unauthorized and unpaid usage reduced that potential for future earnings, reducing its market value.

This seem to be a complicated way of saying that, compared to the alternative of the appropriationist having paid for use of the copyrighted images, the copyright holder is worse off, and that is enough to enforce copyright.

[mediumcool]

This seem to be a complicated way of saying that, compared to the alternative of the appropriationist having paid for use of the copyrighted images, the copyright holder is worse off, and that is enough to enforce copyright.

Hogwash in one sense; what would stop somebody else having a go, perhaps via a painting, compensation or no compensation? Different medium after all.

BTW, I consider Koons an utter charlatan, but he’s made veritable shedloads of cash out of his *work*!