The Supreme Court finally rules on the Warhol-Prince-Goldsmith case that has been looming over the state of fair use in the US, and it isn’t great. This Atlantic article from 2022 and a NY Times article reporting on the decision do a better job at explaining the situation than I can. From doc editing perspective, I’m always weighing myriad considerations and nuances for what I think will classify a use of media as fair use. It’s critical for both commentary and the aesthetics of the documentary form, and anything post-moderist-adjacent.
It's a strange ruling with otherwise aligned justices taking opposing views. But what I find most unsettling is that a handful of non-artists are playing art critic in a hugely consequential way. Or as Justice Kagan writes in her dissent:
“The majority does not see it. And I mean that literally. There is precious little evidence in today’s opinion that the majority has actually looked at these images, much less that it has engaged with expert views of their aesthetics and meaning.”
And that the decision “will stifle creativity of every sort.”
“It will impede new art and music and literature,” she wrote. “It will thwart the expression of new ideas and the attainment of new knowledge. It will make our world poorer.”
With any luck, the caveats mentioned by the majority, including considerations of educational purposes, will do something to protect documentary use. And I remain grateful for efforts like this BRIEF OF AMICI CURIAE.