This blog has looked at a number of cases related to the transformative factor in the context of fair use of artwork. Most recently, in Prince v Cariou.
This week, the issue has once more been addressed in a case filed by artist Derek Seltzer against American rock band Green Day.
Fortunately for us, the IPKat has posted a really helpful explanation of the background to the case, the main issues and the recent opinion of the US Court of Appeals for the Ninth Circuit. It can be found here.
It seems to me that those cases of copyright infringement appear only when the new work is in some way successful( Prince). Are the motives purely financial?
Although I am not sure that the court is in a position to decide the artistic value of an artwork and that should be the main criterion. Thoughts??
Well indeed, success attracts envy. Success also means that the work is more likely to be in the public eye. Therefore, the original artist is more likely to become aware of the work. I do not believe, however, that it is possible to say that the motives are purely financial or even selfish. It is a very subjective factor, which depends on each claimant.
In terms of valuing the work, many argue that it is, again, completely subjective, and, therefore, very difficult and not a task for the court. On the other hand, valuation requires reason and objectivity, which one of the primary purposes of the courts.
These are my initial thoughts. I'd welcome others.
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