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.