Monday, September 25, 2023

“It’s not stealing if I can afford the potential legal bills.”

In more recent instances of such lawsuits, like that involving Richard Prince and photographer Patrick Cariou, the wobbly copyright standard has come under newfound scrutiny. Among the legal experts reexamining the statute’s application are Stanford Law School professors Andrew Gilden and Timothy Greene, who authored a 2013 University of Chicago Law Review paper titled “Fair Use for the Rich and Fabulous?” In the brief, Gilden and Greene worry that the courts today are converting “the right to rework, comment on, or otherwise engage with creative works into a privilege largely reserved for the rich and famous.”

We’ve been saying this for years. Buy your tickets to the bandwagon; space is limited!

More here.

UPDATE: November 15, 2015

Here’s the link to the Gilden and Greene law review article mentioned above. Of note is that although Gilden and Greene champion the Second Circuit’s new Cariou test, they do hope that courts do not focus on socioeconomic and cultural factors. I would add that this new socioeconomic and cultural approach is particularly harmful and ill-advised when it is done by judges or, simply put, by anyone without adequate and in-depth knowledge of art history and contemporary art.

Gilden and Greene:

In its recent decision in Cariou, the Second Circuit appears to have recognized the unfairness, unworkability, and empirical deficiencies in these practicable boundaries. In shifting towards an audience-focused inquiry, however, it is important that the new boundaries of fair use are not set by socioeconomic status or judicial distinctions between high and low art.


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