Re: Re: Leaf Art

From: Keith Tabor <ket354[_at_]yahoo.com>
Date: Thu, 26 Jun 2003 15:42:39 -0400

Rich:

Thanks for the cites below. Yeah, no first sale issues here, sorry for the red herring. Memory can do that! Also, I agree that the use is quite different, in fact I think this is a somewhat unique form of copying.

But, it is still just copying of photos. Maybe it is more like the colorized black and white photos of Einstein that were in poster shops in the eighties and nineties.

Are there any good quotes on how transformative is transformative enough? Any articles on the creation of the notion of transformative use? Judicial doctrine? Statutory?

I guess I don't understand how to analyze this and it bugs me a bit. Maybe I should have taken a copyright course in school - I heard we had a good prof, but the schedule never worked out.

Thanks,

Keith

• Rich Stim <rich[_at_]nolo.com> wrote:
  > >I heard a story on NPR this morning regarding an
  > >artist who transposes photographic negatives onto
  > >leaves using the sun and the leaf's natural
  > processes.
  >
  > >So, this got me thinking about the case about
  > >tiles in New Mexico, and its counterpart in another
  > >circuit whose facts escape me, and the fact that
  > what
  > >he is doing may be considered copyright infringment
  > in
  > >certain parts of our fair country.
  > The cases you mention -- Mirage Editions, Inc. v.
  > Albuquerque A.R.T. Co.,
  > 856 F.2d 1341 (9th Cir. 1988) and Lee v. Deck the
  > Walls, Inc., 925 F.Supp.
  > 576 (N.D. Ill. 1996) -- are not exactly on point.
  > In the Mirage case, pages from a Patrick Nagel book
  > were mounted in frames
  > and sold separately. In Lee, notecards were mounted
  > on tiles. In those
  > cases, copies were not made of the works. What was
  > at issue was whether
  > the First Sale doctrine protected the uses; or
  > alternatively, whether
  > isolating and mounting images amounted to creation
  > of derivative works.
  > In the case of artist Binh Danh's leaves, copies are
  > being made -- that
  > is, works are being reproduced in a different
  > medium. I can't say with
  > any certainty how Binh Danh would do under a fair
  > use analysis but his
  > artwork is clearly more transformative than either
  > of the two previously
  > cited cases.
  > Rich Stim
  > Nolo.com
  >
  >
  >
  >
  >
  >
  >
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