The Supremes sang

Bartc

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Baby, Baby, Baby, where did our art go? .....

What are your thoughts on the Supreme Courts Warhol case decision?

Here are mine for the record:
1) A very interesting situation and coming up lately a lot - copyright infringement. In some cases, whether visual art or music, I find the copying too close; in others not so. Difficult for artists in many instances to distinguish, and only lawyers still argue how many angels fit on the head of a pin.
2) I don't know how judges can reliably deal with distinguishing this in the real world, when artists have a tough time.
3) On the basis of the narrow contract/payment related issue alone - which appears to be their ruling basis - I think they got it dead right. The photographer should have been paid. If you define it the way you would trademarks for example, the argument boils down to how likely it is that the public would confuse the competing marketability issues. They don't have to be almost exactly alike, just close enough that the average consumer would be misled into seeing them as more or less the same.
4) On the basis of homage or interpretation or more importantly for the law "transformation", I'm not always quite so certain in these copyright cases. Excluding the allowable copying for parody in law, it's sometimes tough to define the line where something pays homage and something is boldly taken.
5) I think this is going to be a far more difficult area to define legally and practically in visual arts than in music.

In music, while there are probably zillions of potential combinations of tones, chords and timing, there are likely a finite number that have human appeal. Hence, so many rock songs use the same chords, pacing, etc.; same for blues. You can find too many cases in music where human taste - even allowing for cultural preferences and differences - limit the likely combinations that appeal. And I believe there has been research into that issue. Add to that the human preferences for a limited number of themes, plus the limited number of colloquialisms in lyrics. Hence, the probability that musical sequences will be repeatedly "created" and interpreted.

Conversely, for visual arts the range of potential expression is likely even broader than in music, plus appeal to human tastes is not so easily definable. Even when paying homage. For example, I can clearly see how Van Gogh copied the theme and composition of several paintings from Millet, but I can also clearly distinguish the transformational nature of VG's style.

Good luck with this stuff!
 
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