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Matt (not verified) says:
To answer Anonymous...
The decision in Rogers v Koons says changing the medium is not enough to qualify for the fair use defense. Otherwise movie studios would be able to take a novel and turn it into a film without compensating the author or getting his or her permission. One factor was that Koons's work was an exact copy of the photo. He sent detailed notes to the factory which made the sculpture with numerous instructions to copy the photograph exactly.
Koons's basic argument was "I am an artist with a higher purpose than the photographer of the original work so I am exempt from copyright." Thankfully the court shot that argument down.
Even a tiny photograph in Star Magazine is protected by copyright.
As for Richter and Warhol: I believe Richter takes his own photographs. And Warhol, when using other photographers’ images, was very careful to get permission (and pay a licensing fee) to the photographer whenever he used a photo that was not his own.
There are many artists doing this sort of thing (eg. Damian Loeb). It only becomes a problem if they get caught and if the photographer of the original work is prepared to spend a ton of money taking them to court. Loeb was taken to court once by a photographer and lost, but the movie people don’t mind him using images from their films – they even buy his paintings.
To answer Anonymous...
The decision in Rogers v Koons says changing the medium is not enough to qualify for the fair use defense. Otherwise movie studios would be able to take a novel and turn it into a film without compensating the author or getting his or her permission. One factor was that Koons's work was an exact copy of the photo. He sent detailed notes to the factory which made the sculpture with numerous instructions to copy the photograph exactly.
Koons's basic argument was "I am an artist with a higher purpose than the photographer of the original work so I am exempt from copyright." Thankfully the court shot that argument down.
You can read the case here:
http://www.ncac.org/art-law/op-rog.cfm
Even a tiny photograph in Star Magazine is protected by copyright.
As for Richter and Warhol: I believe Richter takes his own photographs. And Warhol, when using other photographers’ images, was very careful to get permission (and pay a licensing fee) to the photographer whenever he used a photo that was not his own.
There are many artists doing this sort of thing (eg. Damian Loeb). It only becomes a problem if they get caught and if the photographer of the original work is prepared to spend a ton of money taking them to court. Loeb was taken to court once by a photographer and lost, but the movie people don’t mind him using images from their films – they even buy his paintings.