Fair Use Still Breathing

The online New York Law Journal reports that the federal court in the Southern District of New York has ruled that a painter who produced a commissioned painting utilizing certain features of a commercial photograph used in a Gucci ad, “in a novel way to impart new information and new aesthetics so that their use was transformative” and protectible as fair use. Bill Patry has the decision. and a link to Koons’s works, which Patry doesn’t seem to have much use for. Significantly, the court also came to the logical conclusion — usually missing from these ridiculous lawsuits — that the painting was not a substitute for the photo (whose purpose was to sell nail polish) and did not compete with it because people who commission paintings like that, well, don’t want a photograph. How unfortunate that this is so often forgotten because of the musclebound leverage given to copyright plaintiffs by statutory damages!

The decision serves as a reminder that copyrights are supposed to protect the specific expression of an idea, not the idea itself — not even a visual idea.