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 w
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I have no idea what sort of justification he made, but the derivative work always generates renewed interest in the original, so Maisel not only received free publicity for an album for which he gets royalties, but also extorted a good chunk of change from Waxy for something that is clearly fair-use. It's a hand-made pixel art version of a photograph. There is no way in hell that a person interested in Kind of Blues would say, "Hey, you know what, I'm going to buy that chiptunes album because the album art is similar." Jay Maisel is a hack.
I noticed my point was unclear. I meant, no person would buy Kind of Bloop, instead of Kind of Blues because the cover art is similar.
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There is no way in hell that a person interested in Kind of Blues would say, "Hey, you know what, I'm going to buy that chiptunes album because the album art is similar."
That'd be enough for trademark, but not copyright. For copyright the main question is whether their creative expression is part of your creative expression, if so your work is derivative. Even if it's a pixel art version of a photograph, it's clearly derivative of the original photograph. That makes it fall under copyright, and you have to look at fair use. Where it falls most flat on its face is its purpose, which is to promote another commercial work. That is pretty much never a fair use, you can talk abo
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The key is: a tribute isn't fair use. It's a normal commercial product. It's not a parody. It's not a critical discussion. It's a product.
This was understood for all the music, which was properly licensed, but for some reason he didn't think he needed to license the cover artwork. That's just a mistake, not some miscarriage of justice.
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The pixellated artwork did not ridicule the original artwork, so not a parody. You only get cover for the specific thing you parody, you can't use one thing while parodying another (as the Penny Arcade guys discovered a few years back in the Strawberry Shortcake incedent).
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If you're going into a legal battle with 'it seems possible' than you've already lost, you just don't realize it yet.
If its not clearly fair use, its not fair use. You can tell pretty quickly if its fair use or not, if you have to question it, it probably isn't.
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Any decent copyright/patent/trademark law overhaul should have standards for corroborative works, so that people wishing to buy rights to a work, don't have to contract with every Tom, Dick, and Harry that contributed
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The copyright owner of a little used work *wants* their copyright to be violated
How does that apply to one of the most successful albums in human history?
Wikipedia isn't sued bacause they are a critical discussion of the product, not a related product.
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The copyright owner of a little used work
Huh? It's the cover image of a quadruple platinum album. It is quite far from a "little used work".
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.
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Actually, because wikipedia uses an image of the album cover in representation of that album cover the same way Amazon would use it or a music reviewer would use it. They are not using it to represent a separate item that is for sale.
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.
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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 o
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It's still infringement
No, it's not. That's why it's called the "fair use exception". The Change posters were settled out of court, as was this case, so we don't know what the court would have said if the case had gone on, however I believe this was a case of fair use (see my other comment).
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Fair use doen't mean "but I really want to". There are exceptions for parody, education, and critical discussion. A tribute album is non of these, and in no way falls under fair use, and there shouldn't be any confusion about that.
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Right, sure, but again, it wasn't a parody, nor a critical work: it was a normal product. There has never been a "fair use" exception for tribute works.
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You are wrong about the Google Books case, actually. Search engines retaining cached copies of 100% of the content of websites is considered perfectly legitimate fair use. If Google had gone to court, there's a good chance that would have been extended to cached copies of the content of printed books.
Also, fair use is not simply a defense, it's also an exception to copyright law (see 17 U.S.C. s 107, "the fair use of a copyrighted work...is not an infringement of copyright"). But you are correct, it's not
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Also, fair use is not simply a defense, it's also an exception to copyright law (see 17 U.S.C. s 107, "the fair use of a copyrighted work...is not an infringement of copyright")
Uhm, of course its not 'simply a defense' because the 'defense' only exists because its not illegal to use certain things in certain ways.
'fair use defense' should really be called 'application of the law defense', with the exception to that being that it should be called the 'fair use defense' in situations like this one, where it clearly wasn't fair use, but the fair use exception is what they're trying to claim.
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What exactly is "fairt use", last time I read US copyright law the there certainly was no mentioning of it. I only hear this term on /. are you really sure "fair use" is even existing?
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.
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That photo should flat out be public domain at this time regardless of whether the photographer is a live or dead.
Maybe [unc.edu].
Personally, I think the guy shouldn't have settled. He should have dared the person to sue him -- yes, it's a risk, but I think things were strongly in his favor, and while yes, it would cost to defend such a suit properly, it would also cost to launch such a suit properly, and so the photographer would probably realize that it wasn't worth the risk.
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I disagree.
The most best thing would have been if the guy did not have made that "mistake".
As much as we all are sympathetic with him, he was pretty stupid not to realize that the same rules that apply to the music also apply to the cover art.
And for what reason should the right holder simply give in and not ask for his share? Do you want to claim - in a similar situation - you yourself hat given it away?
The photographer worked for his photo as any other guy did. Just because it was a few years (or a few de
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Nope. Anything created between 1950 and 1963 has a 28 year copyright, which means that copyright on this image would have expired in 1987. However, if you renewed your copyright from between those years in 1976, you're granted another 67 years, which means this image will likely not be in the public domain until 2054.
Anything after 1978 is copyrighted until 70 years after its creator's death or for 95-120 years for items created for hire or anonymously. For example, if I hired you to take a photo for my rec
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Did you notice the "should" in the parent post?
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No, he was factually correct. Not everything produced before 1960 is in the public domain, but it should be.
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Only on Slashdot can "IMHO" be spelled "factually correct".
Unless you're a sitting Federal judge hearing a case involving copyright limits, your opinion has no bearing whatsoever on factual reality.
Thanks. Happy to help clarify that.
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Federal judges don't decide right and wrong. They decide legal and illegal. If you can't tell the difference, your opinion has no bearing on factual reality.
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Why should it be? Copyright should cover the commercial lifetime of a product, or some limited time after the death of the contributors. Successful books and (non-pop) music often sell well for many decades after publication, and sometimes take a decade or more to really catch on.
For example, the copyright protection on Lord of the Rings should have expired, but only because the author's been dead for nearly 40 years. If Tolkien was still alive, it wouldn't be right for someone to publish his books and g
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I disagree. Copyright should be long enough to encourage creating works for profit, and no longer. Nobody does anything creative on the chance that it'll be worth money fifty years later; either they do it on the chance that it'll pay off much earlier, or for non-financial reasons, or both. The purpose is not to allow somebody to milk something for all it's worth, but to allow somebody to milk something long enough so that it's worthwhile to create.
I think the old fourteen-year copyright, renewable on
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Copyright should be long enough to encourage creating works for profit, and no longer
Agreed, the problem is copyright licensing income is one of the main passive income streams enjoyed by rich people including politicians, judges and lawyers. They will always legislate to keep, strengthen or expand their income streams.
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There's no other way to interpret his use of 'should'. If he had said it 'IS' out of copyright, he would be factually wrong. He didn't, instead (obviously deliberately) used 'SHOULD', which means that your correction of him is factually wrong.
My submission (Score:2)
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Hope Soulskill has $32,500 lying around...
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Weird. Are you saying that your submission, which was apparently enqueued shortly after the submission by Soulskill, was removed from queue because it was a probable dupe?
Let me reiterate: Are you saying Slashdot editors prevented a dupe?
"Inconceivable!"
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Actually, it probably was published as a dup, but it was probably a week to a year later and he didn't notice it.
Sorry (Score:5, Insightful)
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Do you have an argument for why a photographer has rights to this kind of extortion for a fifty year-old picture? Not the actual picture, mind you, but a version that's sooo pixelated that you wouldn't recognize it except with some external context?
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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 pic
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Let's leave the issue of the law aside for a moment and use sound moral judgment and common sense to decide how it ought to be.
Oh, wait...
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"Kind of Screwed" would be protected under parody, assuming it needed protection as it's not subject to copyright protection and it isn't similar enough to "kind of blue" to have to worry about infringing upon any trademark that could exist.
The pixelated version of the image though, doesn't fall under any reasonable category of fair use, he might have gotten away with it had the venture not been taking donations, but as it is, they were using somebody elses work for donations. And the manipulations they mad
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You know that the photographer must have been squealing with glee when he saw the opportunity to sue over it--not "violated" at all.
It's just greed. And greed is evil.
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On what do you base that opinion on exactly? US fair use uses four factors to test whether a use is fair or not and commercial use is only one of the four factors. Not all factors need to be met to declare a use as fair. They are as follows [wikipedia.org]:
1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
Now IANAL, but while the use was commercial (1), it was transformative as it only used some very vague shapes from the original image thus meeting (3), and also did not affect the market of the original image (4).
In other words, this is almost certainly fair use. Thin
Sorry, but this was NOT fair use (Score:5, Insightful)
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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.
RTFWiki
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It was hand drawn.
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learnthelaw
It's recognizably the same work - thus it's a derivative work and not fair use. It uses the key colors, elements, proportions, and composition of the original work - thus is not a transformative work and not fair use.
He was careful to license everything else, but he failed to license the artwork because he handwaved a "fair use" justification into place. He blew it and it cost him.
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It was hand drawn.
Emanuel Ninger's [wikipedia.org] impressionistic conterfeit $50 bills were hand drawn, one by one, rather than being engraved and printed.
It was quite an achievement, but no less illegal.
When your stated intent is to recreate the original album art as best you can, the tech you use no longer matters.
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But we'll never know, will we? As it stands, the settlement is an implicit admission that the new album cover was close enough to the original to be an infringement. If someone really wanted to refute that, the time and place would have been in the course of an actual lawsuit in an actual court, with an actual opinion rendered by an actual judge establishing actual law. Until then, it's just pseudo-legal epeen waving and swarms of 5-year-olds arguing whose untested opinion best represents the "law as it sho
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Actually, Fonts are NOT copyrighted on the basis of their letter forms. It is perfectly legal to scan a font, and sell the reproduction.
Font NAMES can be copyrighted, and digital data can be (and, by default, is).
Not the actual letter forms.
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Someone else still owns it. Period. It doesn't matter whether you like copyrights or not. It is insane to claim this case has anything to do with fair use. This is a blatant case of someone using a piece of art that he didn't own and just ASSUMING that the owner of the art wouldn't object.
It absolutely does depend on whether you like copyrights or not. If you don't like uber long copyrights, then this guy was in the right. If you _do_ like copyrights that last for multiple decades, growing to over a cen
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Fair use doesn't enter into this admittedly - fair use doesn't include commercial enterprises using copyrighted images for personal gain, funnily enough.
Yes it does. Any use may be a fair use, although not every use is necessarily a fair use. Although being a commercial use may weigh against the use being fair, that alone is not determinative.
As it happens, there are lots of commercial fair uses; ever read Mad Magazine, for example?
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How can you fucking own a photo? You can own prints of it, not all renditions forever and ever and ever.
I'll bet you have a pretty active BitTorrent client at home, right?
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.
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Agreed. When I first saw the writeup, my thought was "how is this fair use?". It is the same original photo, but pixelated and while it's essentially an impression of a public figure, it is not a political figure and it is an impression directly based on someone else's work of that figure. He shows a list of photos of increasing pixelation at the end of the article and asks "at what point does this become acceptable?". Well, I would say the last four photographs would have been acceptable. Everything above
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Why would a "rational person" not seek recompense when his rights are violated and that's the remedy provided under the law?
As you said, one is not different
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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?
This confused me two, but I can think of a reason why he might have thought there was a difference. With music, you have both composition and performance rights - chiptune versions of Miles Davis songs are, I guess, much like any other cover version, in that they are derivative works of the composition, but not of the original performance. Perhaps the musician here thought that a photo was like a performance, with no equivalent to the composition rights, so that a re-creation of the same (or a similar) imag
Get the last laugh (Score:3)
The copyright holder can refuse them (Score:2)
In the US, the only currency you are required to accept to satisfy a debt is US Dollars. You can choose to accept other currency, trade, whatever if you like but you are only required to accept dollars.
That is the meaning of the phrase "This note is legal tender for all debts, public and private." If you owe someone a debt, be it a person, company, or the government, they are required to take USD to satisfy that debt. They cannot demand payment in another currency, or demand you do something instead.
However
You can help: BUY THE ALBUM. (Score:3)
Seriously, whether you like chiptune or not, the FLAC version is $5 and the MP3 even less. Help the man out [kindofbloop.com].
Re:You can help: BUY THE ALBUM. (Score:4, Insightful)
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The guy produced an interesting album, then got caught up in a legal battle over cover art. I am not defending his misunderstanding of fair use - he clearly doesn't get it. Still, lot of good work went into the music; it would be sad if the whole project were tainted by the issue.
The legal system will do its job on the cover art issue, but the album is still worth buying. Artists that actually produce notable works deserve encouragement, even when they screw up. They aren't lawyers or copyright wonks.
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.
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IANAL, but as others have mentioned, he's attempting to profit from a work he didn't create. That does not seem like it could ever fall under fair use.
It routinely does, as it happens. Usually fair use involves people making use of copyrighted works which they did not create, and making a profit from the use, while not really helping claims of fair use any, is not at all fatal. If the use tended to act as a substitute (e.g. people start buying the pixellated album cover instead of the original) that's pretty bad, but the mere fact that the new album is for sale is only a very mild strike against the later user.
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'But this is important: the fact that I settled is not an admission of guilt. My lawyers and I firmly believe that the pixel art is "fair use" and Maisel and his counsel firmly disagree. I settled for one reason: this was the least expensive option available.'
Oddly, you quoted the piece from the article that directly refutes what you're claiming. You'd be fun to debate.
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.
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One major point you missed; the photographer was never asked, on bended knee or not, for permission to use the photograph.
Another reasonable explanation is self preservation. A photographer makes his living by selling photographs and rights to photographs. If a photographer does not defend those rights by lawsuits then those rights go away. Photographs do not become public domain just because they are published.
In my opinion this is a specially clear cut case. Using a slightly modified version of a well kno
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If a photographer does not defend those rights by lawsuits then those rights go away.
Copyright is not a trademark. You do not have to defend it or lose it. Copyright does not work that way.
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.
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While it may appear to be a simple downsampling of the source image, I'm fairly certain that each pixel in this image was hand-placed, as that is considered a requirement for "pixel art".
I'm uncertain if that makes a difference... but if such is the case, none of the pixels in the alleged "derivative work" were copied from the original work, nor were they derived from the original work via software such as an image processing filter or a "save as" command.
It is likely that such a fine subtlety would have es
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.
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.
There is a simple solution (Score:2)
Fair use? It's a myth! (Score:2)
This isn't consistently applied in the US. Might as well get rid of it.
----
Welcome to the USA. Former jurisdiction of the US Constitution.
Here's where he went wrong (Score:2)
No. The least expensive option is to not pay money to a lawyer in order to hear that you should pay more money to more lawyers.
If you think you're right, represent yourself, explain that you can't afford council, and the court will bend over backwards to help you with the procedurals.
Or - here's a thought - just ignore the ca
Copyright abolishment status quo (Score:2)
I believe more and more as time goes by that the idea of copyright is fundamentally broken and that the world would be better off if it were abolished entirely. Perhaps a more ideal solution would be copyright reform, but if the options were abolishment or status quo, I'd vote for abolishment.
I honestly believe that the very notion of copyright is hypocritical, because it is truly impossible to create anything truly original--everything one can think of and create is partially based on and influenced by ex
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I don't see how this solves anything. A big corporation or anyone with a lot of money is in a far better position to take that risk than the average person for whom that would be financially devastating. Especially since so much of an outcome often depends on the quality of counsel you can afford, to begin with.
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For example, if a company spent a million dollars suing me, and I spent $10,000 defending, I would be on the hook for $10,000 of their legal bill if I lost. If I won, they would be on the hook for $10,000 of mine.
Game theory-wise, this would incent people to spend approximately equivalent amounts on lawyers, which is a good thing.
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It helps because, if it's a bullshit lawsuit, the defendant will have no problem finding a lawyer willing to work on contingency (because the lawyer knows that if he wins or the case is thrown out, the plaintiff company will be forced to pay him). As it is now, if you get sued and don't have the money to hire a lawyer, you're pretty much fucked, even if the lawsuit is complete bullshit.
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But what if your lawsuit isn't bullshit but you happen to be going against someone who can afford the army of lawyers to defeat you? How is that fair? All something like that will do is making it so only the rich and powerful can ever afford to sue anyone.
Re:This is why the loser should pay court costs (Score:4)
Because the US isn't interested in stopping frivolous lawsuits. This is the system working as intended. Giving lip service to fairness, while giving the rich and powerful a cudgel to punish anyone who actually tries to exercise their rights.
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Given that the US appears to have a lawsuit-based economy, requiring cases to be sensible might push it further into recession. The UK is interesting in that in a few court cases, the judge has decided both parties to be in the wrong and split costs between them in proportion to their wrongness. I like the concept, as I dislike the absolutism involved in assigning one side absolute responsibility with no regard to how the responsiblity actually divides out. However, in a day and age where clear-cut rules an
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I agree with that, I'd be pretty pissed myself if somebody did that to one of my photos asking permission. Especially since they were taking donations. It just looks way too much like the original and uses way too little creative thought to produce. All the compositional elements of the original are there, albeit in somewhat lower resolution.
Photography in particular is a sensitive one to do that to, as the only thing which qualifies most photos for copyright protection is the compositional element, or at l
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You're talking about jazz here, an art form that is build around the continual re-interpretation of standards. If the jazz tradition doesn't prove that "rehashes, reshaping of others" is creative, I don't know what does.