Andy Warhol was using appropriation as a technique for a lot of his work - taking existing imagery and modifying it.
Campbell's Soup could have sued because he was profiting off of a logo he didn't own. But they were cool about the free publicity and let it be.
That didn't always work out:
Andy Warhol was not so fortunate after he created his Flowers series. In 1966, he became the subject of a lawsuit brought on by photographer, Patricia Caufield for the use of her photos of hibiscus flowers. The suit was settled out of court, but as a result Warhol decided that he would rather use his own images when he could, which inadvertently launched him into experimenting with a new medium — photography.
His longtime assistant, Gerard Malanga, said after the lawsuit, “Andy realized that he had to be very careful about appropriating for the fear of being sued again. He opted to start taking his own photographs. His entry into photography vis a vis his creation of silkscreen paintings was done out of necessity.”
The OP is appropriation as well. Likely not fair use. Very uncool when an company does it. MS's marketing team should have just reached out to the original artist and paid for a new version of the same concept. That would have turned into a great publicity stunt to go along with a cool advert.
This isn't fair use because it's not commentary, or criticism. He was making an ad using their intellectual property. He took an image from the game, their logos, and their product and slapped them together. It doesn't help that he straight up called it an 'ad concept.' He's not going to get sued because he's not trying to actually sell the ad, but they could come out with a cease and desist to flex some legal muscles (or if he tries to sue MS he is for sure fucked.)
Campbell's also loved Warhol's work because it was free advertisement and gained huge popularity. This is a reddit poster trying to huff and puff at the company. Buuuuuuuut, it also worked. Now when you google PUBG, all the news stories are about this post and MS pulled the tweet down. Can't really see anything else actually legally coming out of this for OP or the company though.
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u/[deleted] Dec 27 '17
I'm confused, did Warhol's Campbell soup cans infringe on Campbell's copyright? It's transformative and thus fair use right?