Saturday, April 4, 2020

Derivative vs. Transformative

It’s hard to find a newspaper article today that speaks not only lucidly about art and law, but that is also correct and neutral in its interpretation of its subject matter. Today’s Wall Street Journal has just such a treat. Daniel Grant gives a somewhat brief overview of the current lawsuit brought by photographer Patrick Cariou against Richard Prince for copyright infringement. Grant’s article does a nice job of comparing this lawsuit to two previous copyright lawsuits against Jeff Koons (Rogers and Blanch). Grant points to what seems to be the crucial issue in the recent Prince lawsuit: where do the derivative vs. transformative areas clearly divide? More on point is the fact that this crucial distinction will be an issue for the “average person” to decide. Regardless, with the art world gluttony and and a negative public perception of individuals capitalizing on other people’s assets, Grant may be right that although the tide shifted in favor of visual artists, that same tide may now be shifting back. Quoting the legal adviser to the U.S. Copyright Office, grant concludes: “”There is more sympathy in the legal environment — maybe it has gone too far[.]”


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