What Do Judges Know About Contemporary Art?: Richard Prince and Reimagining the Fair Use Test in Copyright Law
Revista Forumul Judecătorilor, No. 2, 2013
17 Pages Posted: 23 May 2014
Date Written: November 2013
Judges are struggling to agree on what is worth protecting under the doctrine of the fair use of a copyrighted work in the art’domain, trying to establish the boundaries from which the work would be considered a new and transformed one. From one point of view, when the (subsequent) artist finishes his work, the meaning of the original (copyrighted) object has been extracted and an entirely new meaning set in its place. If judges insist on the presence of ostensible visual transformation, then many iconic contemporary artworks (e.g. Andy Warhol’s) would be at risk of being destroyed. It appears (as the Supreme Court warned) that would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of [a work], outside of the narrowest and most obvious limits.
Keywords: copyright law, defining art, original works, appropriation art, fair use factor, appropriation style, transformative use, copyright infringement claim
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