The American Photographic Artists, the American Society of Journalists and Authors, the American Society of Media Photographers, the Graphic Artists Guild, the National Press Photographers Association, the Picture Archive Council of America and the Professional Photographers of America have filed a “friend of the court” brief in support of Patrick Cariou. (pdf version)
The brief takes aim at the Warhol Foundation’s brief (PDF) in support of Richard Prince (emphasis mine):
Amici submit this brief primarily in opposition to the amicus brief filed by the Andy Warhol Foundation and other elite foundations and museums who do not represent the views of working artists.
The organizations involved in the “friend of the court” brief represent roughly 45,000 members and 100 companies in the fields of photography, the graphic arts, and media.
Their brief continues with this criticism that continues to pit the 1% against the 99% of artists:
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.
The question again is: what is fair and transformative use? The brief emphasizes the double standard in the case and how the organizations filing this new brief are concerned for creatives who don’t have access to wealthy collectors and limitless funds for legal cases:
Simply because Prince has access to more lucrative avenues of distribution and was able to exploit the value of Cariou’s aesthetic vision to his own economic benefit does not entitled Prince to a fair use defense. Rather, it counsels that Prince should have availed himself of the standard licensing market in order to put Cariou’s photographs to his high value use, while compensating the original creator or finding an alternate source for images of a similar nature if Cariou declined to issue a license.
And the clincher, IMO:
This is where the Warhol Foundation’s argument fails of its own weight. It argues that Prince’s works have new meaning and thus are sufficiently creative so as to be considered a new work of art by the elitist audience for his “art.” But to do so is to admit that Prince has created derivative works that Cariou alone has the right to create and authorize. “Transformation” for purposes of the derivative work right and “transformation” for purposes of “fair use” cannot mean the same thing without more, otherwise the Judge-made “transformation” analysis would usurp Congress’ use of the words “abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted,” in the Copyright Act would be meaningless and eviscerated. Amici do not believe the intent of the Second Circuit was to do so, but the Warhol Foundation’s position, if accepted, would inexorably lead to that result. With all due respect to the Second Circuit, it is not permitted to override an Act of Congress in such a manner.
A change of context, standing essentially alone, thus does not qualify as a fair use. Consider, for example, a translation into a different language: the context is changed, it is slightly altered because no translation is entirely literal, it has different meaning to a different audience, but it is not a fair use; rather, it is an infringing derivative work
This is an evolving story.