In the ’70s, martial arts legend Bruce Lee pitched a series to Warner Bros. called The Warrior — centered on a Chinese martial artist traveling across America’s Old West. Ultimately, Warner Bros. rejected Lee’s pitch because it didn’t think audiences would tune into a Chinese-led television show. However, one year later, Warner Bros. launched Kung Fu, casting a white male lead (David Carradine) with no kung fu experience in a story that resembled Lee’s initial pitch.
Lynn Goldsmith took the photo on the left. She recognized the Warhol silkscreen on the right as her material, and challenged the Warhol Foundation over fair use, in a copyright infringement case.
Fair use – when one artist can borrow from another without permission or payment – hinges on “transformation,” in the law. When the goals and function of the secondary work in question are quite different from the original, transformation is said to occur. Last month a New York appeals court found in favor of Goldsmith: they reversed a lower court decision, and said that the standard of transformation was not met.
Transformation is probably a deep, aesthetic, philosophical and cultural concept – so it’s comical when courts try to sort it out.
A few years back, a bevy of art critics declared that Marcel Duchamp’s 1917 sculpture called “Fountain” — a store-bought urinal he had presented, unchanged, as art — was the most influential work of the 20th century.