A recent case involving competing duck shaped pool floats[ref]Great American Duck Races Incorporated v. Kangaroo Manufacturing Incorporated, et al. 2019 WL 3238460[/ref] highlights one of the basic tenets of copyright law that many non-lawyers find hard to understand: the idea-expression dichotomy. It stands for the proposition that the idea itself is not capable of copyright. Indeed, 17 USC 102(b) says this very plainly. What gets the copyright is HOW the idea is expressed, or as I frequently explained to students, "it is not what you said but how you said it."
The Court leads off its opinion with the observation that "[a]s established at trial, ducks in nature are often yellow and usually have wings, bills, and tails."[ref]Id. at 1[/ref] It would be hard to miss the weary tone of the Court in having to deal with this dispute.
Plaintiff, Great American Duck Races, first got into business creating charity "duck race" events featuring a small rubber duck wearing sunglasses.[ref]Id.[/ref] Plaintiff's duck is indeed very similar to Ernie of Sesame Street's beloved "Rubber Duckie,"[ref]Id.[/ref] a fact that is not wasted on the Court who mentions it several times. The main difference is that Plaintiff's duck wears sunglasses.
Later, due to the success of the duck races, Plaintiff manufactured a much larger version of their duck to serve as a pool float capable of holding several people, which proved to be very successful.[ref]Id. at 1-2[/ref]
Defendants, put as politely as possible, are knock-off artists.
"In practice, it was clear that [Defendant] and his companies would identify successful products on Amazon and then make slightly different versions of those products without apparent concern about possible intellectual property violations. That design process was described in detail at trial…In late 2015 or early 2016, [Defendant] decided [it] should manufacture "novelty pool floats." (citation omitted) [Defendant] looked at the available pool floats and discovered four duck pool floats sold by four different companies. (citation omitted) [Defendant] provided the other companies' products to an [employee] and instructed [them] to "create the design of a pool float in the form of a yellow duck with sunglasses [but] make it different from the yellow duck pool floats" already on the market. (citation omitted) [The employee] designed the new pool float and [Defendants] manufactured its own duck-wearing-sunglasses pool float. In other words, [the employee] had the [Plaintiff's] Duck when designing [Defendant's] duck and, to some extent, modeled [Defendant's] duck after the [Plaintiff's] Duck."[ref]Id. at 2[/ref]
Normally, this would be the end of the case. But as the Court noted in its opening line, when you are modeling an artistic work after a well-known creature already found in nature, you are hemmed in by features that must be included in order to recognize the work as a duck. So, once you add to the fact that a "duck wearing sunglasses" is an unprotectable idea, the available variations on this idea are not many.
(It would be truly helpful to have photographs of the "dueling ducks," but unfortunately WestLaw is choosing not to display them. You'll have to wait until the regular opinion comes out.)
As the Court observes: "To prove unlawful appropriation...the similarities between the two works must be ‘substantial' and they must involve protected elements of the plaintiff's work. (citation omitted). The key question always is: Are the works substantially similar beyond the fact that they depict the same idea?" (citation omitted)[ref]Id. at 4[/ref]
"In the present case, [Plaintiff's] copyright cannot prevent others from depicting yellow ducks, with a bill, wings, a tail, and a crest on the head. All of those attributes are found on ducks in nature. Moreover, the general design and coloring of the duck has become a "stock or standard feature. (citation omitted) As noted earlier, the [Plaintiff's] duck resembles the Rubber Duckie from Sesame Street and many other examples. Therefore, there are very few protectable elements in the [Plaintiff's] Duck. The parties have focused on the addition of sunglasses as the crucial protectable element. And the Court agrees that the sunglasses are the key protectable element of the [Plaintiff's] Duck. But even there, [Plaintiff's] copyright provides no protection to the idea of a duck float wearing sunglasses. Rather, [Plaintiff's] copyright only protects the particular expression of that idea… (citation omitted) That is, [Plaintiff] is entitled to protection only for the way it expressed the idea of a duck wearing sunglasses."[ref]Id. at 4-5[/ref]
The Court reasons as follows:
"When confronted with the two ducks, and focusing on the sunglasses, there are a few striking differences. The sunglasses on the [Plaintiff's] Duck consist of a double bridge, are solid black, and most importantly are separately inflatable. The fact that the sunglasses are inflatable make the sunglasses a very prominent feature of the [Plaintiff's] Duck. By contrast, the sunglasses on the [Defendant's] duck have a single bridge, are not solid black, and are merely painted on the duck's head. An ‘ordinary observer' confronted with the two works and focusing on the sunglasses would not be ‘disposed to overlook' these differences. (citation omitted) While the [Plaintiff's] Duck and [Defendant's] duck undoubtedly share the general idea or concept of a duck wearing sunglasses, [Plaintiff] ‘cannot claim an exclusive right to ideas or concepts at that level of generality.'"[ref]Id. at 5[/ref]
And finally, the Court rules:
"The parties' ducks are very different when compared with any care. The [Plaintiff's] Duck has a red bill that is open. [Defendant's] duck has an orange bill that is closed. The [Plaintiff's] Duck is a flat float while [Defendant's] duck is a ring float. Finally, the [Plaintiff's] Duck's sunglasses are all black and exceptionally prominent. The [Defendant's] duck's sunglasses are only partially black and not especially prominent. In short, the ‘total concept and feel' of the two ducks preclude a finding of liability on the copyright claim."[ref]Id. [/ref]
You may get the impression the Court is splitting hairs here, or at least a few duck feathers.
But the take home point is that Plaintiff's design was not particularly original to begin with. And once you combine that with the fact that ducks occurs in nature, and the only part that is "not a duck," is the sunglasses, your level of protection as a copyright owner is indeed going to be very thin.
No Subjects
On July 1, 2019, a Federal District Judge ruled that when Andy Warhol copied an unpublished photographic portrait of the late singer Prince, and created 16 different variations of the unpublished photo, that these were "fair use" and not copyright infringement.[ref]Andy Warhol foundation for the Visual Arts, Inc. v. Goldsmith 2019 WL 2723521 all references are to the WestLaw pagination[/ref] Plaintiff, Andy Warhol Foundation for the Visual Arts, immediately praised the decision saying:
"Warhol is one of the most important artists of the 20th century, and we're pleased that the court recognized his invaluable contribution to the arts and upheld these works."[ref]Warhol's Prince Image Doesn't Violate Copyright, Judge Rules[/ref]
Upon reading that quote, my initial reaction was, this is totally beside the point. Why should the "fame" or "importance" of the artist factor into whether something is fair use or not? It turns out, maybe more than a little.
The facts of the case are fairly straightforward:[ref]Warhol v. Goldsmith at 2-3[/ref]
These are the Warhol variations that make up the Prince series:
Curiously, the Warhol Foundation refuses to admit copying of the photograph, but that "somehow" Warhol magically created the "Prince Series."[ref]Id. at 3[/ref] Nevertheless, the Warhol Foundation does admit access and that there is sufficient "probative similarity" to establish that Warhol copied the Goldsmith photograph to some extent.[ref]Id. at 5[/ref]
The Court never reaches the question of whether the works are substantially similar to each other. Instead, it focuses its efforts on the question of whether the "Prince Series" is in fact fair use.
Here is where the heavy hammer of Cariou and the "transformative use" test start to fall. If you accept Cariou as correctly decided, and this Judge must accept it as correctly decided, then a finding that Warhol's edition are "transformative" is a foregone conclusion. Indeed, Cariou is cited to by the Court five times in a little more than a page at one point. In Cariou, sometimes there were only a few swatches of paint placed over the photographs.
Here, as the Court rhapsodizes:
"In all but one of the works, Prince's torso is removed and his face and a small portion of his neckline are brought to the forefront. The details of Prince's bone structure that appear crisply in the photograph, which Goldsmith sought to emphasize, are softened in several of the Prince Series works and outlined or shaded in the others. Prince appears as a flat, two-dimensional figure in Warhol's works, rather than the detailed, three-dimensional being in Goldsmith's photograph. Moreover, many of Warhol's Prince Series works contain loud, unnatural colors, in stark contrast with the black-and-white original photograph. And Warhol's few colorless works appear as rough sketches in which Prince's expression is almost entirely lost from the original."[ref]Id. at 7[/ref]
In other words, they are derivative works under 17 USC 106(2), which are defined in section 101 as "… a work based upon one or more preexisting works, such as a… art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted." (emphasis added) So, in the circular logic of the "transformative use" test, any creation of a derivative work in which the work is "transformed," and under the law should require a license, instantly becomes a "transformative use" and now "fair use," which does not require a license.
Now, even though the Judge has already made a strong case that the changes made by Warhol are far more significant than those found to be transformative in the Cariou case, the Judge finds it necessary to add the following paragraph:
"These alterations result in an aesthetic and character different from the original. The Prince Series works 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. Moreover, each Prince Series work is immediately recognizable as a ‘Warhol' rather than as a photograph of Prince – in the same way that Warhol's famous representations of Marilyn Monroe and Mao are recognizable as ‘Warhols,' not as realistic photographs of those persons."[ref]Id.[/ref]
This leads to the conclusion, as voiced by myself and others, that a lot of fair use, especially "transformative use," turns judges to art critics, rather than triers of fact and deciders of law. Also, of what possible probative value to the case, is the fact that the "Prince Series" is "immediately recognizable as a Warhol?" Warhol had a very distinctive artistic style. A lot of artists do. He was also very famous as an artist, and therefore many of his works are famous. Should that matter?
Apparently it does.
"At the argument of the current motions, counsel for Goldsmith suggested that the fair use test is ‘almost like you know it when you see it.' (citation omitted) This calls to mind Justice Stewart's test for obscenity: ‘I know it when I see it.' (citation omitted) If that were the test, it is plain that the Prince Series works are ‘Warhols,' and the Goldsmith Prince Photograph is not a ‘Warhol.'"[ref]Id. at endnote 8[/ref]
"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. The first fair use factor accordingly weighs strongly in AWF's favor."[ref]Id. at 7[/ref]
As to the second factor, the fact that the photographs were unpublished, and thus weigh against fair use, is given a curt two-sentence brush off:
"However, the reasons unpublished works enjoy additional protection against fair use – including respect for the author's choices of when to make a work public and whether to withhold a work to shore up demand– carry little force in this case, where Goldsmith's photography agency licensed the photograph for use as an artist's reference. Moreover, this factor is of limited importance because the Prince Series works are transformative works. Therefore, the second fair use factor favors neither party."[ref]Id. at 8[/ref]
This analysis seems to be at odds with the Supreme Court's holding in Harper and Row v. Nation Enterprises.[ref]471 U.S. 539 Supreme Court of the United States 1985[/ref] There, the Court stated:
"We conclude that the unpublished nature of a work is "[a] key, though not necessarily determinative, factor."[ref]Id. at 554[/ref]
Here, the mere fact that the work is "transformative" in the eyes of the Court trumps the fact that the work is unpublished and is a "key factor."
It is at the third factor that the Court really misses the mark.
"All but one of Warhol's works include only Prince's head and a small portion of his neckline; Goldsmith's photograph captures much of Prince's torso. The sharp contours of Prince's face that Goldsmith emphasized in her photograph are softened in some Prince Series works and traced over or shaded in others. Moreover, the three-dimensional effect in the photograph, produced by the background and lighting that Goldsmith chose, was removed by Warhol resulting in a flat, two-dimensional and mask-like figure of Prince's head. And in the majority of his Prince Series works, Warhol traded Goldsmith's white background for a loudly colored background. Indeed, unlike Goldsmith's photograph, most of Warhol's works are entirely in color, and the works that are black and white are especially crude and the creative features of the Goldsmith Prince Photograph are especially absent. Ultimately, Warhol's alterations wash away the vulnerability and humanity Prince expresses in Goldsmith's photograph and Warhol instead presents Prince as a larger-than-life icon."[ref]Warhol at 9[/ref]
This ignores the Supreme Court's holding in Harper and Row v. Nation Enterprises.
"As the statutory language indicates, a taking may not be excused merely because it is insubstantial with respect to the infringing work. As Judge Learned Hand cogently remarked, ‘no plagiarist can excuse the wrong by showing how much of his work he did not pirate.' (citation omitted) Conversely, the fact that a substantial portion of the infringing work was copied verbatim is evidence of the qualitative value of the copied material, both to the originator and to the plagiarist who seeks to profit from marketing someone else's copyrighted expression."[ref]471 U.S. at 565[/ref]
As with Harper and Row, Warhol took the "heart of the work," indeed the only part that really mattered: Prince's face. Ask yourself: "What value would Warhol's works have if they did not feature Prince's face?" None, of course. Would you buy a Warhol that consisted on only the clothes Prince was wearing that day, with his face blotted out or concealed? Of course not.
Prince's face, as captured by Goldsmith, is the "heart of the work," and factor three should have weighed heavily in her favor.
As to the fourth factor, the court concludes:
"Goldsmith's evidence and arguments do not show that the Prince Series works are market substitutes for her photograph. She provides no reason to conclude that potential licensees will view Warhol's Prince Series, consisting of stylized works manifesting a uniquely Warhol aesthetic, as a substitute for her intimate and realistic photograph of Prince. Although Goldsmith points out that her photographs and Warhol's works have both appeared in magazines and on album covers, this does not suggest that a magazine or record company would license a transformative Warhol work in lieu of a realistic Goldsmith photograph."[ref]Warhol at 10[/ref]
Judge, this is an assumption that has been disproved by actual events. And the proof is contained in your own opinion:
So in sum, is the Warhol case correctly decided? Yes. Absolutely. The Judge is bound to follow Cariou, which had much less "transformation" than is present here.
Is the decision terrible? Yes. Consider the following.
Remember, Goldsmith, the photographer whose work was copied, is the Defendant here. The Andy Warhol Foundation sued her, to boldly establish their right to freely plagiarize her work. The end result is she spent $400,000 defending herself. In order to appeal, it might cost her $2.5 million before it is all done.[ref]Warhol's Prince Image Doesn't Violate Copyright, Judge Rules[/ref] She has started a GoFundMe Page to help pay her legal fees.[ref]Warhol Foundation vs Goldsmith GoFundMe[/ref]
Sort of puts the Warhol Foundation's proclamation that "we're pleased that the court recognized his invaluable contribution to the arts and upheld these works" in a whole new light, doesn't it?
Or consider this. These kinds of decisions pave the way for bootleg knocks-offs of famous artists' work.[ref]Move Over, Richard Prince. Here Comes Bootleg Art From 'Christy's.'[/ref] Like Eric Doeringer, the subject of a New York Times profile.
"In the art world, auction prices are pretty much the only public record of what a work is worth, so it sort of sets the value of artists' work," Mr. Doeringer said. "The idea was to take this event and knock it off and make these multimillion dollar works of art available for a lot less."
On the studio walls hung Mr. Doeringer's versions of works by Frank Stella, Wayne Thiebaud, Kaws, Giorgio Morandi, Rauschenberg and Warhol. The knockoffs are smaller than the pieces they're based on and with clear imperfections — a wobbly line here, a visibly pasted-on bit there — but instantly recognizable.
"They'll fool you from a distance," Mr. Doeringer said. "They won't fool you close up."[ref]Id.[/ref]
So copy a work, make some changes, and presto! Transformative use!
Maybe the remedy for Ms. Goldsmith is to take the "Prince Series" and make her own "transformative use" of them. Take the 16 images and chop them up into small bits. Make a mosaic. Make some bits larger than others. Paste some of them upside down. Add a few Jackson Pollock like scribbles on top.
And presto! According to the reasoning of this Court – instant "transformative use"!
Not that she should do this.
But she could.
- Defendant Lynn Goldsmith took 11 photographs of Prince at her New York Studio in 1981
- Though the photos were created on assignment for Newsweek, the photos were never published
- Vanity Fair asked for and received a license from Goldsmith to use one of the Prince photographs "for use as an artist reference in connection with an article to be published…"
- Warhol created a single image which was used in connection with a 1984 article about Prince titled "Purple Fame" for which Vanity Fair gave Goldsmith a credit for the "source photograph"
- Sometime later, Warhol creates the "Prince Series" of 16 images based on the Goldsmith photograph, and begins to sell both originals and copies[ref]Id. at 3-4[/ref]
These are the Warhol variations that make up the Prince series:
Curiously, the Warhol Foundation refuses to admit copying of the photograph, but that "somehow" Warhol magically created the "Prince Series."[ref]Id. at 3[/ref] Nevertheless, the Warhol Foundation does admit access and that there is sufficient "probative similarity" to establish that Warhol copied the Goldsmith photograph to some extent.[ref]Id. at 5[/ref]
The Court never reaches the question of whether the works are substantially similar to each other. Instead, it focuses its efforts on the question of whether the "Prince Series" is in fact fair use.
Here is where the heavy hammer of Cariou and the "transformative use" test start to fall. If you accept Cariou as correctly decided, and this Judge must accept it as correctly decided, then a finding that Warhol's edition are "transformative" is a foregone conclusion. Indeed, Cariou is cited to by the Court five times in a little more than a page at one point. In Cariou, sometimes there were only a few swatches of paint placed over the photographs.
Here, as the Court rhapsodizes:
"In all but one of the works, Prince's torso is removed and his face and a small portion of his neckline are brought to the forefront. The details of Prince's bone structure that appear crisply in the photograph, which Goldsmith sought to emphasize, are softened in several of the Prince Series works and outlined or shaded in the others. Prince appears as a flat, two-dimensional figure in Warhol's works, rather than the detailed, three-dimensional being in Goldsmith's photograph. Moreover, many of Warhol's Prince Series works contain loud, unnatural colors, in stark contrast with the black-and-white original photograph. And Warhol's few colorless works appear as rough sketches in which Prince's expression is almost entirely lost from the original."[ref]Id. at 7[/ref]
In other words, they are derivative works under 17 USC 106(2), which are defined in section 101 as "… a work based upon one or more preexisting works, such as a… art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted." (emphasis added) So, in the circular logic of the "transformative use" test, any creation of a derivative work in which the work is "transformed," and under the law should require a license, instantly becomes a "transformative use" and now "fair use," which does not require a license.
Now, even though the Judge has already made a strong case that the changes made by Warhol are far more significant than those found to be transformative in the Cariou case, the Judge finds it necessary to add the following paragraph:
"These alterations result in an aesthetic and character different from the original. The Prince Series works 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. Moreover, each Prince Series work is immediately recognizable as a ‘Warhol' rather than as a photograph of Prince – in the same way that Warhol's famous representations of Marilyn Monroe and Mao are recognizable as ‘Warhols,' not as realistic photographs of those persons."[ref]Id.[/ref]
This leads to the conclusion, as voiced by myself and others, that a lot of fair use, especially "transformative use," turns judges to art critics, rather than triers of fact and deciders of law. Also, of what possible probative value to the case, is the fact that the "Prince Series" is "immediately recognizable as a Warhol?" Warhol had a very distinctive artistic style. A lot of artists do. He was also very famous as an artist, and therefore many of his works are famous. Should that matter?
Apparently it does.
"At the argument of the current motions, counsel for Goldsmith suggested that the fair use test is ‘almost like you know it when you see it.' (citation omitted) This calls to mind Justice Stewart's test for obscenity: ‘I know it when I see it.' (citation omitted) If that were the test, it is plain that the Prince Series works are ‘Warhols,' and the Goldsmith Prince Photograph is not a ‘Warhol.'"[ref]Id. at endnote 8[/ref]
"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. The first fair use factor accordingly weighs strongly in AWF's favor."[ref]Id. at 7[/ref]
As to the second factor, the fact that the photographs were unpublished, and thus weigh against fair use, is given a curt two-sentence brush off:
"However, the reasons unpublished works enjoy additional protection against fair use – including respect for the author's choices of when to make a work public and whether to withhold a work to shore up demand– carry little force in this case, where Goldsmith's photography agency licensed the photograph for use as an artist's reference. Moreover, this factor is of limited importance because the Prince Series works are transformative works. Therefore, the second fair use factor favors neither party."[ref]Id. at 8[/ref]
This analysis seems to be at odds with the Supreme Court's holding in Harper and Row v. Nation Enterprises.[ref]471 U.S. 539 Supreme Court of the United States 1985[/ref] There, the Court stated:
"We conclude that the unpublished nature of a work is "[a] key, though not necessarily determinative, factor."[ref]Id. at 554[/ref]
Here, the mere fact that the work is "transformative" in the eyes of the Court trumps the fact that the work is unpublished and is a "key factor."
It is at the third factor that the Court really misses the mark.
"All but one of Warhol's works include only Prince's head and a small portion of his neckline; Goldsmith's photograph captures much of Prince's torso. The sharp contours of Prince's face that Goldsmith emphasized in her photograph are softened in some Prince Series works and traced over or shaded in others. Moreover, the three-dimensional effect in the photograph, produced by the background and lighting that Goldsmith chose, was removed by Warhol resulting in a flat, two-dimensional and mask-like figure of Prince's head. And in the majority of his Prince Series works, Warhol traded Goldsmith's white background for a loudly colored background. Indeed, unlike Goldsmith's photograph, most of Warhol's works are entirely in color, and the works that are black and white are especially crude and the creative features of the Goldsmith Prince Photograph are especially absent. Ultimately, Warhol's alterations wash away the vulnerability and humanity Prince expresses in Goldsmith's photograph and Warhol instead presents Prince as a larger-than-life icon."[ref]Warhol at 9[/ref]
This ignores the Supreme Court's holding in Harper and Row v. Nation Enterprises.
"As the statutory language indicates, a taking may not be excused merely because it is insubstantial with respect to the infringing work. As Judge Learned Hand cogently remarked, ‘no plagiarist can excuse the wrong by showing how much of his work he did not pirate.' (citation omitted) Conversely, the fact that a substantial portion of the infringing work was copied verbatim is evidence of the qualitative value of the copied material, both to the originator and to the plagiarist who seeks to profit from marketing someone else's copyrighted expression."[ref]471 U.S. at 565[/ref]
As with Harper and Row, Warhol took the "heart of the work," indeed the only part that really mattered: Prince's face. Ask yourself: "What value would Warhol's works have if they did not feature Prince's face?" None, of course. Would you buy a Warhol that consisted on only the clothes Prince was wearing that day, with his face blotted out or concealed? Of course not.
Prince's face, as captured by Goldsmith, is the "heart of the work," and factor three should have weighed heavily in her favor.
As to the fourth factor, the court concludes:
"Goldsmith's evidence and arguments do not show that the Prince Series works are market substitutes for her photograph. She provides no reason to conclude that potential licensees will view Warhol's Prince Series, consisting of stylized works manifesting a uniquely Warhol aesthetic, as a substitute for her intimate and realistic photograph of Prince. Although Goldsmith points out that her photographs and Warhol's works have both appeared in magazines and on album covers, this does not suggest that a magazine or record company would license a transformative Warhol work in lieu of a realistic Goldsmith photograph."[ref]Warhol at 10[/ref]
Judge, this is an assumption that has been disproved by actual events. And the proof is contained in your own opinion:
So in sum, is the Warhol case correctly decided? Yes. Absolutely. The Judge is bound to follow Cariou, which had much less "transformation" than is present here.
Is the decision terrible? Yes. Consider the following.
Remember, Goldsmith, the photographer whose work was copied, is the Defendant here. The Andy Warhol Foundation sued her, to boldly establish their right to freely plagiarize her work. The end result is she spent $400,000 defending herself. In order to appeal, it might cost her $2.5 million before it is all done.[ref]Warhol's Prince Image Doesn't Violate Copyright, Judge Rules[/ref] She has started a GoFundMe Page to help pay her legal fees.[ref]Warhol Foundation vs Goldsmith GoFundMe[/ref]
Sort of puts the Warhol Foundation's proclamation that "we're pleased that the court recognized his invaluable contribution to the arts and upheld these works" in a whole new light, doesn't it?
Or consider this. These kinds of decisions pave the way for bootleg knocks-offs of famous artists' work.[ref]Move Over, Richard Prince. Here Comes Bootleg Art From 'Christy's.'[/ref] Like Eric Doeringer, the subject of a New York Times profile.
"In the art world, auction prices are pretty much the only public record of what a work is worth, so it sort of sets the value of artists' work," Mr. Doeringer said. "The idea was to take this event and knock it off and make these multimillion dollar works of art available for a lot less."
On the studio walls hung Mr. Doeringer's versions of works by Frank Stella, Wayne Thiebaud, Kaws, Giorgio Morandi, Rauschenberg and Warhol. The knockoffs are smaller than the pieces they're based on and with clear imperfections — a wobbly line here, a visibly pasted-on bit there — but instantly recognizable.
"They'll fool you from a distance," Mr. Doeringer said. "They won't fool you close up."[ref]Id.[/ref]
So copy a work, make some changes, and presto! Transformative use!
Maybe the remedy for Ms. Goldsmith is to take the "Prince Series" and make her own "transformative use" of them. Take the 16 images and chop them up into small bits. Make a mosaic. Make some bits larger than others. Paste some of them upside down. Add a few Jackson Pollock like scribbles on top.
And presto! According to the reasoning of this Court – instant "transformative use"!
Not that she should do this.
But she could.
No Subjects