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MaxKingsleySecondEssay 6 - 22 May 2023 - Main.EbenMoglen
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Why the Transformation Consideration Underlying the "Purpose and Character" Factor should be Replaced | | | Therefore, while the transformation consideration underlying the “purpose and character of the use” factor is grounded in logical considerations, in practice, it fails to produce logical results. While it is true that this consideration is one of many that the courts weigh (and in fact, it may not even be considered at all), its application in the overall balancing scheme may produce skewed outcomes. Ultimately, in this case, the Supreme Court ruled in favor of Goldsmith, finding that, when weighing the purpose and character of the use factor, Warhol's work was not sufficiently transformative to furnish Goldsmith's photograph with new meaning. By allowing the court to decide the meaning of Warhol's work, the purpose and character of the use test poses grave consequences on the art world. The ruling emphasizes and legitimizes the importance of originality and the potential harm that can be inflicted on the market value of an original work by unauthorized use. This will likely lead to greater scrutiny of the authenticity of artworks and may impact the market value of works that incorporate pre-existing copyrighted material. It also may impact the way that artists create and distribute their work, as well as how the art market functions. The Supreme Court's ruling places a greater responsibility on artists to obtain permission or licensing agreements for the use of copyrighted material, which could make it more difficult for emerging artists to gain exposure or create new work that incorporates existing work, as many aspiring artists do not have the resources to obtain these permissions or licenses. Thus, in my opinion, the tranformation consideration underlying an evaluation of the purpose and character of the use should be abolished, and we should not allow judges and juries to unilaterally determine what an artwork represents. However, finding a replacement for this consideration should be a job for the legislature.
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Felix Cohen would agree that transcendental nonsense in the law of copyright exists, and is in fact inevitable because "intellectual property" is transcendental nonsense. Whether one set of bits has been "transformed" when it has become another set of bits is inherently undecidable, as I pointed out in 1999. But a jury can assess whether it is fair use for Warhol to base a painting on a Goldsmith photograph without securing rights. So one might expect you to come out for a reading of section 107 that makes sense to realists. But instead you seem to be concerned with the value of paintings on the art market that make use of copyrighted source materials. Isn't that a peculiar end to the inquiry?
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