Friday, July 05, 2019

"Andy Warhol’s ‘Prince Series’ Is Fair Use, Court Rules"

AP story here.  Opinion here.

On summary judgment, Judge Koeltl ruled that "[e]ach of the Prince Series works may reasonably be perceived to be transformative of the Goldsmith Prince Photgraph. … [H]er photographic work centers on helping others formulate their identities … Her photoshoot illustrated that Prince is 'not a comfortable person' and that he is a 'vulnerable human being.'  [Her photograph] reflects these qualities.  Warhol's Prince Series, in contrast, can reasonably be perceived to reflect the opposite. … [They] can reasonably be perceived to have transformed Prince from a vulnerable, uncomfortable person to an iconic, larger-than-life figure.  The humanity Prince embodies in Goldsmith's photograph is gone."

He concludes:  "In sum, the Prince Series works are transformative.  They 'have a different character, give Goldsmith's photograph a new expression, and employ new aesthetics with creative and communicative results distinct from Goldsmith's.' See [Prince v. Cariou], 714 F. 3d at 708.  They add something new to the world of art and the public would be deprived of this contribution if the works could not be distributed."

I think there are two ways to read the decision -- one as a kind of non-event and the other as quite radical.

The non-event perspective is this Judge saw this particular use as transformative.  If you put the same facts before another judge -- one who somehow missed Prince's transformation from vulnerable person to larger-than-life figure -- the result could very easily have gone the other way.  On this reading, there's still no way to have any confidence about how any given fair use case will be decided.

The more radical reading would emphasize the weight Judge Koeltl (quietly) puts on the words "reasonably perceived."  That is, he sets the table for his transformativeness discussion by saying "the Court must 'examine how the [Prince Series works] may "reasonably be perceived" in order to assess their transformative nature'" (quoting Prince v. Cariou quoting the Supreme Court's Campbell decision).  From there, he then goes on to talk about, as I mention above, how the Warhol works "may reasonably be perceived" -- i.e., not that it's the only way they may be perceived, or even the most persuasive way they may be perceived.  Just that it's a reasonable interpretation of the work.  On this reading, as long as you can make a reasonable, good faith case that your work is transformative (even if there are other interpretations in which it's not), it's fair use.  I have no idea if that's what Judge Koeltl intended here, but if that became the new test for transformativeness, that would not be a non-event.  It would be transformative.

Brian Frye says it's the "[r]ight outcome, but if the excerpt is any indication, I'm not thrilled about the analysis. I don't love the idea of judges playing art critics any more than Holmes did."

Kevin Casini agrees:  "This analysis seems to hinge on an EXTREMELY subjective understanding of an artist's works and I suspect this judge is an art aficionado/collector. No thanks."