E asked in Politics & GovernmentLaw & Ethics · 1 decade ago

Why isn't "Pop Art" a copyright violation?

Under Fair Use policies of the United States, fair use only applies for

1) criticism

2) commentary

3) news reporting

4) teaching and scholarship

5) research

The supreme court has also ruled that any artwork that reproduces another for a commercial use (ie sale) cannot be taken under the Fair Use doctrine. Yet artists like Larry Rivers and Andy Warhol take blatantly from images owned by museums and other artists and photographers.

Furthermore, the Shepard Fairey Obama Poster is currently being sued for copyright violations. Why is it different from those other works?


The five reasons listed are from the 1976 Fair Use Doctrine. Parody has since been upheld as a common allowance for Fair Use.

Additionally, I looked through Castle Rock v Carol Publishing previously and as the Seinfeld book that was distributed wasn't any sort of Visual Art, specifically "Pop Art", and was a purely commercial endeavor I find its ruling inapplicable.

And while copyright can be acquired to make the work of art "legal" it frequently isn't. Particularly in the case studies I've looked through regarding Larry Rivers and his classical art phase.

2 Answers

  • Favorite Answer

    Fair Use does not just apply to those five listed. See Castle Rock v. Carol Publishing. The transformative use of the work must be viewed in light of the 1st Amendment, and our 1st Amendment rights are not limited to the five major categories above. In fact, the US copyright Act doesn't mention those categories.

    Fair Use is determined on a case by case basis after the owner brings an infringment suit against the infringing party. It could be that a work constitutes copyright infringement, but the owner doesn't care.

    The Shepard Fairey poster was copied from a photograph, the Andy Warhol Campbell Soup can was taken from a Campbell soup label. The label is a trademark, while the photograph is a pictorial, graphic or sculptural work as defined under the Act. Andy Warhol's use could be described as nominative use. There is no nominative use defense under copyright law. Furthermore, Fairey was making money off of his use of the photo, and the similarity between the photo and the poster is striking. He wasn't advancing the arts.

    It isn't an open and shut case. Fairey took an image that was of national concern at the time and his use was for political speech. Typically, news reporters are the only ones permitted to take that kind of image of a presidential candidate. The fact that Fairey made some money off of it weighs against him. If he made nothing, the Associated Press would have a difficult time with its case, but as it stands now, they have enough to make it past the summary judgment phase. It may be a little questionable for a news organization to combat someone's first amendment rights, but that is their own prerogative.

    Fair Use is very fact specific and it is a legal question left up to a federal judge. This is why it is difficult for anyone to accurately claim anything is or is not fair use until after the legal dust has settled.

  • Mutt
    Lv 7
    1 decade ago

    If you get permission from the copyright owner, then there is no violation.

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