Lots of #wrong #news articles about the #SCOTUS #copyright decision in Andy Warhol Foundation for the visual arts v Goldsmith et al.
"the US Supreme Court ruled Andy Warhol infringed on photographer Goldsmith's copyright when he created silk screen images based on a photograph Goldsmith shot", says @NPR
Not so.
"The Supreme Court ruled on Thursday that Andy #Warhol was not entitled to draw on a prominent photographer’s portrait of Prince", says the #nyt.
Also wrong.
Here is why: 1/4
#law
2/x
The #SCOTUS case was not about anything #Warhol did. The case was about a) #FairUse and b) #licensing by the Andy Warhol Foundation.
Two key words: Fair USE, and Andy Warhol FOUNDATION.
The US #copyright concept of Fair Use is about just that: USE! It is not about creating works.
Whether Fair USE applies or not depends on the USE of the work once created. Fair Use does not concern the creation of the #work before it is being used.
2/x
#law
3/x
So #SCOTUS did NOT rule that Warhol infringed anyone's #copyright when he created those #paintings, and they did not rule that #Warhol was not entitled to create his #work.
SCOTUS only spoke to the licensing activities of the A. Warhol Foundation. A different entity, who has not created these works, but who commercializes them.
Take the very same work: Some use may be fair, other use may be #infringing.
3/x
#law
4/4
You can make #FairUse of an infringing work, and you can make infringing use of a #work that may in other use cases be used fairly.
Creation of a work and use of a work are very different things. In reality and in US #copyright #law.
It is disappointing that professional colleagues, who create copyrighted works for their livelihood, did not grasp that fundamental difference.
4/4
Daniel AJ Sokolov