_{This article was written with assistance from two copyright experts: Ysolde Gendreau, full professor in the law faculty at Université de Montréal, and François Le Moine, a lawyer specializing in art and cultural heritage law.}

 

In a recent ruling, the Supreme Court of the United States reaffirmed a fundamental principle in copyright law: before a copyrighted work can be used, the most basic step is to ask the work’s creator for permission.

Decisions by the U.S. Supreme Court are closely monitored at the international level. The Court has now stated essentially that artists have rights.

Just because a practice has become entrenched (such as not getting paid in certain situations), that doesn’t mean it’s legal or acceptable.

 

How does the ruling affect us here?

In Canada, the issue would be defined differently from a technical standpoint. For instance, fair use in the U.S. is a different concept than fair dealing here.

If our local creators want to export their work, they have to contend with legal contracts drafted according to requirements in a foreign jurisdiction.

When it comes to intellectual property, it’s relevant to see what’s going on elsewhere. Canada is influenced by what’s happening in the U.S. and Europe.

Even though we might live in Quebec, our interactions online can be regulated by U.S. law, primarily in the form of user licences for works from image banks or on social media.

Licences are often governed by standardized contracts that comply with the legislation in effect in a particular U.S. state. They can directly impact our business operations or individual activities.

• Read more: Copyright — Social media and Terms of use

 

A win for creators

This ruling comes at a time when tools called “artificial intelligence” (AI) are being trained to produce content by appropriating the original work done by millions of creators, without asking their permission, crediting them or paying any compensation.

The ruling is welcome news in an economic environment that’s often not favourable for artists’ rights. These days, people want to be able to do whatever they like with the content created by others and they don’t want to be inconvenienced in any way.

We’ve been hearing the objections for years from people who question the principles behind the Copyright Act: “New creation won’t be possible, we won’t be able to do anything, etc.”

 

The saga of the Prince series

Let’s take a closer look at the case itself, which concerned content created from a collaboration between pop art icon Andy Warhol and photographer Lynn Goldsmith.

The genesis of it all was a photo that Goldsmith took of the musician and singer Prince. A few years later, the magazine Vanity Fair proposed that Warhol use Goldsmith’s photo as the basis for creating a silkscreen illustration. Goldsmith agreed to the use, one time only, as long as she was credited. She received a fee of $400. Up to that point, everything seemed fine.

However, Warhol subsequently used that same image in his Prince series without notifying Goldsmith or asking for her permission. Goldsmith only found out about the Prince series many years later when the Warhol illustration was reused on the cover of a commemorative magazine dedicated to Prince following his death. This new use was authorized by the Andy Warhol Foundation but the photographer wasn’t even mentioned. To make matters worse, the Foundation earned $10,000 from the use.

 

Money wasn’t the issue

Goldsmith wasn’t trying to get her hands on the entire $10,000 that the Foundation received. All she wanted was a portion representing a small percentage.

 

Because he was a celebrity?

Warhol took a risk by continuing to create the series of images without requesting authorization.

His actions were based on the presumption that there wouldn’t be any negative consequences for him because his status as a celebrity would protect him.

The Court was sensitive to the issue of celebrity in this case. No one should consider themselves above the law.

In other words, we should expect honest behaviour from everybody. Even though the photographer is likely to be honoured that Warhol decided to use her photo, it still belongs to her!

Subsequent creators (who incorporate third-party content) may be upset that limits are being placed on their right to create content by drawing from various sources. This is still allowed under the ruling but part of the income earned must go to the original creator.

 

Freedom and consent

What’s a better approach? It starts with asking for permission to use the content. A winning strategy is to avoid assuming that the original artist won’t want to collaborate. Artists are entitled to have their say in how their content is used.

Subsequent creators are taking a shortcut when they reuse content without asking first. They find value in the convenience of using the selected work.

The cost for Warhol (or his foundation) is to enter into negotiations about the photographer’s artistic creation. The shortcut for him is being able to access that photo.

The ruling doesn’t undermine Warhol’s talent in making artistic choices, which involved using others’ works to make his own creations. Copyright is as legitimate for him as it is for her.

 

Photography as an art form

Depending on where you are in the world, photography isn’t always treated the same way or given equal rights compared to other art forms.

Photography is sometimes considered a lesser, more mechanical form, unlike the other fine arts.

The U.S. Supreme Court’s ruling could help enhance the value of the work done by fine art photographers.

 

Inspiration vs. appropriation vs. infringement

Every copyright system has some level of influence over artists’ work. Copyright has evolved over time. In the 17th century, Johann Sebastian Bach appropriated concertos by Vivaldi without permission.

Today, the goal of copyright isn’t to stand in the way of “normal” creative work. Artists are of course inspired by and quote from existing works and even appropriate elements of them.

But those practices aren’t the same as plagiarism, especially if they’re part of a creative process that’s original in other respects.

What copyright seeks to prevent is a second artist too easily appropriating the work of another without the original artist being able to earn any compensation for the work they did.

 

Derivative vs. transformative

Under U.S. law, there are two components to copyright: first, the rights to the original work and, second, the rights to derivative works. Compensation is expected for adaptations, translations, comic albums, movie scripts, etc.

That’s what happened in this case: Warhol’s work is derived from Goldsmith’s.

But it could have been considered transformative instead of derivative. In the U.S., a work is transformative if there are so many new elements in the new creation that it can be seen as a new, independent work and no compensation needs to be paid to the creator of the work serving as inspiration.

The problem is that the concept of transformation can be taken too far, to the point that it becomes abusive and nothing is left for the original artists.

 

Economic rights

Copyright is intended to promote artistic progress by incentivizing creation, which includes paying monetary compensation and acknowledging artists. The idea is for artists to be motivated to create new content.

In general, Goldsmith was selling her photos to magazines that licensed them – especially the ones of musicians – in order to publish them on their covers.

It’s important to understand the concept of economic competition, which can also play out on the same distribution channels.

Does Warhol’s entire Prince series infringe Goldsmith’s copyright?

From an economic perspective, her market share has been compromised. The Foundation was paid $10,000 but Goldsmith received nothing even though it’s clear there has been encroachment onto the photographer’s economic turf.

 

Moral of the story

Maybe we’re too used to making copies of content found online or now generated by AI.

It should be normal and expected for authorization to be requested before another person’s content is used and for that person to be compensated. This doesn’t prevent subsequent creators from creating.

Too often, contracts include clauses that are unfavourable regarding artists’ rights.

Artists should be familiar with their rights, claim them and exercise them. In essence, they shouldn’t have to settle for less!