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."
And Why Isn't Wikipedia Being Sued? (Score:2, Interesting)
I'm not a fan of chiptunes and I value my music collection in its unadulterated entirety but Mr. Maisel has provided his business mailing address [jaymaisel.com] so I believe I will take both my CD liner and vinyl covering and mail them back to Mr. Maisel. I'll probably write something very graphic on the front of them in regards to greed and fornication. I will include a letter explaining how I thought these were derivative works but he clearly owns them and as such I am returning his property.
How is this any different from what we've already seen [wikipedia.org]:
On appeal, the 9th Circuit Court of Appeals found in favor of the defendant. In reaching its decision, the court utilized the above-mentioned four-factor analysis. First, it found the purpose of creating the thumbnail images as previews to be sufficiently transformative, noting that they were not meant to be viewed at high resolution like the original artwork was. Second, the fact that the photographs had already been published diminished the significance of their nature as creative works. Third, although normally making a "full" replication of a copyrighted work may appear to violate copyright, here it was found to be reasonable and necessary in light of the intended use. Lastly, the court found that the market for the original photographs would not be substantially diminished by the creation of the thumbnails.
Emphasis mine. Was there some concern about the market for Maisel's original Kind of Blue image being diminished?
original cover also used (Score:5, Interesting)
In their demand letter, they alleged that I was infringing on Maisel's copyright by using the illustration on the album and elsewhere, as well as using the original cover in a "thank you" video I made for the album's release.
Even if you agree that the pixelated version of the album cover was fair use (I don't), his case would have been damaged by the fact that he used the original cover elsewhere.