Fair Use And Transformation

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.

2 Replies to “Fair Use And Transformation”

  1. “Transformation is probably a deep, aesthetic, philosophical and cultural concept – so it’s comical when courts try to sort it out.”

    Absolutely, couldn’t have said it better. These are matters that don’t lend themselves to narrow legal language or concepts. Like when courts try to sort out the difference between art and pornography. Most people think they know the difference, but describing it in legalese is another matter.

    Coincidentally, last night I was listening to this song by the Jam. Paul Weller isn’t just ripping off parts of “Taxman” by the Beatles, he’s going out of his way to let you know it. Anyone can hear it, but try proving it in court. The bass line, rhythm, and chords can be found in any number of songs. Even the psychotic lead break obviously was inspired by McCartney’s original, but “psychotic lead break” is a subjective call. Weller doesn’t follow Taxman’s solo note for note at all, so he could claim he was channeling, I dunno, Tom Verlaine, or no one. And then he adds some catchy Beach Boys bits that make it, in my opinion, an entirely different and more interesting type of song than the original (which I like very much also). Transformation? I’d say so, but it’s too fuzzy for court.

    1. David St. Hubbins: It’s such a fine line between stupid, and uh …
      Nigel Tufnel: Clever.
      David St. Hubbins: Yeah, and clever.

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