Expense and Uncertainty Plague 'Fair Use' Defense 190
Andy Baio of Waxy.org recently organized a chiptune tribute project for Miles Davis' acclaimed Kind of Blue album. What was intended as a creative labor of love turned into a nightmare for Baio when a copyright claim demanded exorbitant sums while glossing over fair use. He writes, "I went out of my way to make sure the entire project was above board, licensing all the cover songs from Miles Davis's publisher and giving the total profits from the Kickstarter fundraiser to the five musicians that participated. But there was one thing I never thought would be an issue: the cover art." Despite strongly believing that his pixelated version of the original cover art fell under fair use, Baio eventually decided his cheapest option was to settle out of court, paying the original photographer $32,500. "Anyone can file a lawsuit and the costs of defending yourself against a claim are high, regardless of how strong your case is. Combined with vague standards, the result is a chilling effect for every independent artist hoping to build upon or reference copyrighted works."
Released in 1959? (Score:4, Insightful)
That photo should flat out be public domain at this time regardless of whether the photographer is a live or dead.
Sorry (Score:5, Insightful)
Sorry, but this was NOT fair use (Score:5, Insightful)
Confused about what? (Score:5, Insightful)
I read that earlier today. I don't understand why he's confused.
He failed to license the image, which he should have attempted to do. He felt it was necessary to license everything else, how is it the cover art should be treated as less than the rest of the work?
The nature of the work was not an artistic piece shown to an audience, it was a commercial venture with (likely) zero profit. Do I think it may have had artistic merit? Sure. Had it been presented in an art gallery with the music playing in front of the image in question then perhaps it would have easily fit into fair use.
But as a CD available at a price? It's a commercial venture and requires licensing.
Re:And Why Isn't Wikipedia Being Sued? (Score:4, Insightful)
Wikipedia uses a non-pixelated version and accepts donations and distributes them to the people that work on Wikipedia. Why aren't they targeted by Jay Maisel?
Because predators prey on the weak.
Not fair use (Score:4, Insightful)
Reading the article, he more or less lays out why he settled - he figured out he was indeed in the wrong. The Doors album cover recreated with Rubix cubes on a street is (to me) plainly a new work, while based on an existing work. Simply reducing the resolution of a work and using it for the same purpose (a commercial album cover), is (to me) obviously not a new work. The other examples given could be argued separately, and no info is given on whether rights or permission were sought in each case, etc.
The problem is the system, not the case (Score:4, Insightful)
I am not an anarchist, but cases like this make me sympathize with them. Look at how this system is corrupting men. As the writer rightly notes, it's not about whether the image falls under fair use. Indeed, given that the writer specifically went and got permission to use the make the music eight-bit, it seems inconsistent that he should not also ask permission to use the cover art. But this is all beside the point. The main question is why did the photographer sue him for such a ridiculous amount of money, or any money at all?
There are two explanations: greed and pride. Greed is caused by the system. He would consider a reasonable amount for the penalty, but he knows that he can sue for more, and knows that suing for more will get him a better deal out of the settlement. Even a good man cannot resist the temptation to sue for more money. The system has corrupted him. Pride too is caused by the system. Because of the system, the photographer has an inflated view of his ownership of the image. How dare this artist not come on his knees and beg for permission to use my artwork. Thus, instead of happily agreeing to let him use the image, he feels he must use the full force of the law.
We see then that the law has taken on a life of its own, and begun to corrupt the society it claimed it would protect. For the protection of our own morality, we should put an end to this.
It is an either way thing (Score:3, Insightful)
It's not some ingenious reinterpretation of the original artwork, using the original purely for reference. To a casual observer, it's pretty much the same image without any new creativity being added. It's not being used as a commentary on the original, or an enhancement. Just a slightly modified version apparently chosen in order to benefit from the similarities to the original, while avoiding the requirement to pay a royalty.
He was right to settle. It could very easily have gone against him.
Re:Sorry (Score:3, Insightful)
Sorry, but it is not that pixelated. It has a long way to go before it would be pixelated to the point that it wouldn't be recognized for what it is and at that point, it would not serve the intended point to the person using it as the tribute cover art. It's like saying that "HOPE" version of Obama is different, because "you would never recognize it as the original photo, because the real Obama is not actually red and blue!".
As to an argument for why the photographer has the rights for a fifty year old picture? Well, the argument is pretty simple, probably. The law says so. The image was taken in 1959 and copyright law says he has copyright on it for 95-120 years or his life plus 70 years, whichever comes first.
As to an argument as to how that implementation of copyright law is just, I have no idea. There are reams of debate and justification written over the decision and I don't particularly agree with any of it or current copyright law, but it would seem to me that the photographer is entirely within his rights under the law.
Re:And Why Isn't Wikipedia Being Sued? (Score:4, Insightful)
Re:And Why Isn't Wikipedia Being Sued? (Score:4, Insightful)
Because part of fair use is that it doesn't damage the value of the original product. Wikipedia using the image does nothing to hurt sales or the original, using the image as part of the branding of your album, even a non-profit, for charity album, is confusing to the consumer and could very conceivably hurt sales of the original (people who know what the cover looks like grabbing the wrong one).
While I would personally say what he did to the image was transformative, the courts have seen things differently in the past. Anyone remember the Obama Change [wikimedia.org] poster? The transformation in that case was much more dramatic than in this one and they still ended up settling out of court.
Re:And Why Isn't Wikipedia Being Sued? (Score:3, Insightful)
It's still infringement, I'm not sure why that wasn't obvious from the start. You can't use an image in this manner any more than you can use the music.
In this case, I don't see anything about the pixelated version which should qualify it under fair use. It just looks too much like what those old school pixelated photos looked like before computers gained the memory and capacity to store larger images. It's certainly less qualified than that poster made from the AP photo of President Obama that's been all over the place the last few years.
Re:Sorry, but this was NOT fair use (Score:3, Insightful)
It was hand drawn.
Re:You can help: BUY THE ALBUM. (Score:4, Insightful)
Re:original cover also used (Score:4, Insightful)
It depends on how he used it in that video (it doesn't appear to be available anymore). If it was used as just a portion of the video, I actually see a stronger case for that being fair use, than for the pixel-art version. The pixel-art version is arguably using a derivative work of the original image in a straightforward commercial use, as the cover art of a new album. Displaying a photograph of the original album as one part of a video about the release of a tribute to the album seems much more like commentary. For example, if I make a documentary about Miles Davis, it is not copyright infringement for me to display the cover art of Miles Davis's albums within my documentary--- but it would be more problematic if I used one of them as the cover art of my documentary.
Hard to say without seeing it, though.