I have occasionally mucked around in some grey copyright areas — creating animations over television commercials and using images of art-gone-by for my Clip Art Project. So this story from ArtNet News about Andrea Blanch suing Jeff Koons struck a nerve:

In his decision, judge Louis L. Stanton of U.S. District Court found that Niagara was indeed a “transformative use” of Blanch’s photograph. “The paintingâ??s use does not ‘supersede’ or duplicate the objective of the original,” the judge wrote, “but uses it as raw material in a novel way to create new information, new esthetics and new insights. Such use, whether successful or not artistically, is transformative.”

[…]

Blanch, a 20-year veteran of the photo world — she started out as an assistant for Richard Avedon, and in 1998 published Italian Men: Love & Sex, a book of interviews and photographs — told Artnet News that she had discovered Koonsâ?? use of her image by accident, during a visit to his 2002 exhibition at the Guggenheim Museum in New York. “At first I was flattered,” she said. She soon came to a different conclusion after thinking about the situation. “I really believe that if the person is living, you have to ask permission!”

I just don’t know that I agree with Blanch’s assertion that if I’m going to use a source material from someone living, that I need to send them a note to make sure it’s OK. As long as I’m not forging an artist’s work as my own, I see it as fair use of the public domain. I’m inclined to side with the judge who stated that if a work is used “in a novel way to create new information, new esthetics and new insights. Such use, whether successful or not artistically, is transformative.” This could, of course, raise the corpse of the discussion on Nike appropriating Minor Threat’s album cover for their skate tour. However, in that case, I don’t see Nike as trying to create a new esthetic or insight; only usurping the existing esthetic and information for their purposes.

I feel as though the grey area didn’t shrink so much as it just shifted a bit in its seat.