in october 2022, the supreme court heard arguments on whether andy warhol’s silkscreen images of prince violate the copyright of the photographer who took the og picture. the question: does “fair use” protect warhol’s image?
what is “fair use”? the copyright office explains that it’s a carveout that allows you to use someone else’s work without having to pay for it. a key part of the test is whether the new work is “transformative” of the original
the atlantic says we need fair use to protect american art. artists need breathing room for creative expression. they can’t constantly worry whether they’ll be sued. and art always builds on other art!
but a group of photographers disagrees. the best way to protect artists (and their expression) is to give them strong rights over their work
law prof bruce boyden worries the court will make a mess of the already-complicated fair use doctrine. this is a tricky -- it’s hard to balance artistic freedom and the photographers’ rights
the new republic says this case asks a fundamental question: what is art? what makes it new enough to transform the prior work?
and gizmodo says this case has way higher stakes than money for goldsmith. it “could end fair use as we know it” -- and that could cripple the internet
in any event, the nyt reports that the supreme court justices seemed happy hear a fun case like this. the oral argument was full of pop culture references and justice jokes