Photographers and artists file brief in support of Patrick Cariou

The standard articulated by the Warhol Foundation would create an unwarranted safe harbor around a small coterie of well-connected elite artists who sell their works for extraordinary prices, at the expense of the greater community of working artists. Instead of resorting to an examination of hypothetical and elitist views, rather, what should determine whether there is a “transformation” in the fair use sense here under the reasonable person test should be based on the application of common observation skills to determine whether the appropriating artist, in the course of committing copyright infringement, has made something which is beyond the economic goal of the Copyright Act to compensate the original authors and protect their right to control who makes copies and derivative works.

The Warhol Foundation proposes a standard whereby seemingly identical pieces will not be treated as unexcused infringements, but will be distinguished by a series of expert reports and costly testimony. These increased costs magnify the harm to the original artists; who frequently have no choice but to stand by while the copyright in their works are violated brazenly, as the costs of litigation outweigh any potential remedy the legal system can provide currently.

This standard would permit visual artists with connections in the artistic world to take visually powerful photographs, like those used in the Five Paintings, and simply redisplay them, either as paintings with minor modifications, or with no modifications at all but in a new setting. Sanctioning such an approach would permit appropriators to sell the original creator’s aesthetic in a new medium without compensating the creator.