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Expense and Uncertainty Plague 'Fair Use' Defense

Soulskill posted more than 2 years ago | from the i'd-be-kind-of-blue-too dept.

Music 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."

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190 comments

This is why the loser should pay court costs (0)

Anonymous Coward | more than 2 years ago | (#36543758)

It works so well in other countries I'm surprised why we don't do it. It sure would stop a lot of frivolous lawsuits.

Re:This is why the loser should pay court costs (2)

Seumas (6865) | more than 2 years ago | (#36543822)

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.

Re:This is why the loser should pay court costs (1)

Toonol (1057698) | more than 2 years ago | (#36544886)

I think a modified version is preferable: Loser pays, up to the amount that the loser themselves paid.

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.

Re:This is why the loser should pay court costs (3)

Hatta (162192) | more than 2 years ago | (#36543956)

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.

Re:This is why the loser should pay court costs (1)

jd (1658) | more than 2 years ago | (#36544194)

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 and fixed, uniform penalties are the in-thing, it's not obvious how you'd codify such a scheme to meet modern sensibilities.

Also, other nations also have modest (though not great) legal aid schemes to ensure that defendents can actually afford to defend. This could (and probably should) be improved such that the state actively safeguards its citizenry against lawsuit trolls (if the costs are going to be reclaimed anyway, what's the cost to the state for doing this?) but that's not currently what is done anywhere as far as I know.

Re:This is why the loser should pay court costs (2)

cfulmer (3166) | more than 2 years ago | (#36544606)

For copyright cases, we pretty much have loser pays. See 17 U.S.C. 505: "In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs."

And Why Isn't Wikipedia Being Sued? (1, Interesting)

eldavojohn (898314) | more than 2 years ago | (#36543766)

Wikipedia uses a non-pixelated version [wikipedia.org] and accepts donations and distributes them to the people that work on Wikipedia. Why aren't they targeted by Jay Maisel?

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?

Re:And Why Isn't Wikipedia Being Sued? (1)

esocid (946821) | more than 2 years ago | (#36543964)

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.

Re:And Why Isn't Wikipedia Being Sued? (1)

esocid (946821) | more than 2 years ago | (#36544000)

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.

Re:And Why Isn't Wikipedia Being Sued? (1)

Kjella (173770) | more than 2 years ago | (#36545106)

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 about Google's thumbnails all day but it doesn't compare at all. That is something designed to lead you to the full image, not to lead you somewhere else. I guess you could argue the law should be less strict but from both the letter of the law and the practice of it, settling seems like a good idea.

Re:And Why Isn't Wikipedia Being Sued? (1)

Maximum Prophet (716608) | more than 2 years ago | (#36544044)

Wikipedia isn't sued because they'd just stop using the image, and that would cause there to be less overall infringement. The copyright owner of a little used work *wants* their copyright to be violated by someone who puts it on a physical object, so that it would be expensive to recall.

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 to a work. (T., D., and H. all deserve a cut, but a fair cut)


*Free the WKRP Soundtrack!!!*

Re:And Why Isn't Wikipedia Being Sued? (3, Insightful)

Hatta (162192) | more than 2 years ago | (#36544060)

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.

Re:And Why Isn't Wikipedia Being Sued? (2)

Seumas (6865) | more than 2 years ago | (#36544340)

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? (4, Insightful)

91degrees (207121) | more than 2 years ago | (#36544374)

Nature of the use. It's not being used to promote Wikipedia, simply to illustrate it. It's being used in the nature of information about the original work or the work for which it was licensed.

Re:And Why Isn't Wikipedia Being Sued? (3, Insightful)

MozeeToby (1163751) | more than 2 years ago | (#36544382)

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? (2, Insightful)

hedwards (940851) | more than 2 years ago | (#36544410)

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.

Greed! (0)

Anonymous Coward | more than 2 years ago | (#36543770)

It's inevitable. Prepare for it!

Released in 1959? (4, Insightful)

Anonymous Coward | more than 2 years ago | (#36543772)

That photo should flat out be public domain at this time regardless of whether the photographer is a live or dead.

Re:Released in 1959? (1)

dougmc (70836) | more than 2 years ago | (#36543882)

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.

Re:Released in 1959? (0)

Anonymous Coward | more than 2 years ago | (#36544164)

OP was referring not to current copyright law but to a hypothetical rational copyright law.

Re:Released in 1959? (2, Informative)

Seumas (6865) | more than 2 years ago | (#36543944)

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 record album today, it would be a "fore hire" gig and the item should not reach public domain until 2132.

Re:Released in 1959? (1)

Hatta (162192) | more than 2 years ago | (#36544010)

Did you notice the "should" in the parent post?

Re:Released in 1959? (1)

Seumas (6865) | more than 2 years ago | (#36544156)

Yes, and clearly it was an inaccurate statement.

Unless he was offering "should" as an opinion, which is entirely unclear from his or her comment.

Re:Released in 1959? (1)

Hatta (162192) | more than 2 years ago | (#36544342)

No, he was factually correct. Not everything produced before 1960 is in the public domain, but it should be.

Re:Released in 1959? (1)

idontgno (624372) | more than 2 years ago | (#36545102)

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.

Re:Released in 1959? (0)

Anonymous Coward | more than 2 years ago | (#36544924)

What's the other interpretation then? If eg. it should be in the public domain because the law said so, then it WOULD be. That's a tautology.

Re:Released in 1959? (1)

Toonol (1057698) | more than 2 years ago | (#36545142)

Unless he was offering "should" as an opinion, which is entirely unclear from his or her comment.

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.

Re:Released in 1959? (0)

Anonymous Coward | more than 2 years ago | (#36544058)

That photo should flat out be public domain at this time regardless of whether the photographer is a live or dead.

Doesn't look like... (1)

Anonymous Coward | more than 2 years ago | (#36543826)

Fair use to me. IANAL, but I am an illustrator and have a descent grasp on copyright law. This does not look like faire use, it is derivative, not transformative IMO.

Re:Doesn't look like... (1)

hedwards (940851) | more than 2 years ago | (#36544482)

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 least that's the case for photos like the original which are more documentary in nature. There are other types which are less bound to just that one element.

My submission (1)

esocid (946821) | more than 2 years ago | (#36543838)

I've never had a submission used without recognition. http://slashdot.org/submission/1670128/Cant-Afford-Lawyers-Then-It-Isnt-Fair-Use [slashdot.org]

Re:My submission (1)

jamie (78724) | more than 2 years ago | (#36543966)

It wasn't your submission that was used. I shared it with the Slashdot author folks a few hours before you submitted. They penned their own writeup. :)

Re:My submission (1)

esocid (946821) | more than 2 years ago | (#36544162)

Ah ok. It disappeared from the stream, so I assumed they used it. Cheers.

Re:My submission (1)

idontgno (624372) | more than 2 years ago | (#36545130)

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!"

An expensive lesson... (1)

Anonymous Coward | more than 2 years ago | (#36543852)

Perhaps Andy Baio should have consulted a lawyer before publishing said work?
Sheeesh.

Re:An expensive lesson... (1)

Anonymous Coward | more than 2 years ago | (#36544008)

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.

Well?

Sorry (4, Insightful)

hondo77 (324058) | more than 2 years ago | (#36543912)

Sorry but he's just wrong, IMHO. Slightly altering the photograph for a commercial venture, as he did, was not fair use. Even if he didn't stand to gain from it. Not even close. Just because he believes it was fair use does not make it so (the same could be said of my opinion, of course).

Re:Sorry (2)

NoNonAlphaCharsHere (2201864) | more than 2 years ago | (#36544114)

And by naming his post "Kind of Screwed", he's just "slightly altered" the name of the album, making that a derivative work as well. </sarcasm>

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?

Re:Sorry (3, Insightful)

Seumas (6865) | more than 2 years ago | (#36544298)

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:Sorry (1)

hedwards (940851) | more than 2 years ago | (#36544574)

"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 made to it weren't significant enough to qualify it for protection. And really, I don't see why it should have received protection as it's something that you can script Gimp to do without too much thought.

Re:Sorry (1)

Anonymous Coward | more than 2 years ago | (#36545074)

Do you have an argument for why a photographer has rights to this kind of extortion for a fifty year-old picture?

The "fifty year" part is what gets me. We could argue all day long, until we're dead with exhaustion, about whether what he did constitutes fair use or not, whether it's legal or not, etc.

However, reproductions of any work of art that's fifty years old, to me, should be in the public domain. That's the problem.

Yes, making pixelated copies of a fifty-year old work of art should be ok. Sorry if it's not fair use. IP law sucks and needs to be torn down. It's fucking ridiculous.

Re:Sorry (0)

Anonymous Coward | more than 2 years ago | (#36544176)

You're certainly entitled to your opinion, regardless of the fact that it has no legal credibility. Countless cases of similar nature have been ruled in favor of the producer of the derivative work. Undoubtedly, this case would have added to that list had it made it to and through the courts. But it didn't. It is a shame and a travesty of justice that Mr. Baio found it financially untenable to defend himself. While he might have gone forward with his defense and then counter-sued for legal damages, the outcome of that kind of suit is far more uncertain -- typically it has not turned out well for the counter-suer.

So, the moral is that if you have no moral scruples and you'd like some free money, just find some poor sucker to sue for some nonsense -- chances are that he will be forced to settle out-of-court and you walk away with your pockets full.

By the way, Mr. Maisel has a website with a message page. I encourage anyone who finds his actions reprehensible to let him know.

Re:Sorry (2)

esocid (946821) | more than 2 years ago | (#36544414)

It was a hand made pixel art of a likeness of Miles Davis. It wasn't just run through a filter to make a blurry copy of the photograph. That's like saying Andy Warhol's soup can is in violation.

Re:Sorry (1)

airfoobar (1853132) | more than 2 years ago | (#36545324)

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. Think about it rationally, if this isn't fair use then what is?

Sorry, but this was NOT fair use (5, Insightful)

DavidinAla (639952) | more than 2 years ago | (#36543974)

If you take a photo that someone else owns and you run it through a Photoshop filter, that doesn't make it a different photo. 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. That was stupid. He was unlucky enough that the copyright owner asserted his correct legal rights. If Baio had taken the case to court, he would have lost -- 100 times out of 100. I don't care what his motives are. I don't care that he got correct legal permissions for the recordings. ALL of those things are irrelevant. You can't rip off art and use it the way you want if it's still under copyright. There isn't a fair use exception that will magically make it so.

Re:Sorry, but this was NOT fair use (0)

Anonymous Coward | more than 2 years ago | (#36544128)

You're an artist, correct?

Re:Sorry, but this was NOT fair use (0)

DavidinAla (639952) | more than 2 years ago | (#36544310)

I couldn't illustrate anything to save my life, but I've produced enough ads and publications for clients over the years (using other people's artwork) to know what counts as fair use and what you have to pay for on a commercial project. Your insinuation that it requires someone with a personal need to get paid for his work to understand the law on this point is pretty stupid.

Re:Sorry, but this was NOT fair use (2)

ThatsMyNick (2004126) | more than 2 years ago | (#36544378)

http://en.wikipedia.org/wiki/Fair_use#Fair_use_on_the_Internet [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.

RTFWiki

Re:Sorry, but this was NOT fair use (0)

DavidinAla (639952) | more than 2 years ago | (#36544484)

Linking to random Wikipedia articles that aren't about the same thing doesn't do any good, does it? That case is about a thumbnail of something used as an online preview. The case we're talking about here is where an entire album's cover artwork copied the entire cover album artwork of another. If you can't see that this case is radically different from the one you're linking to without context, I can't help you.

First sentence (0)

Anonymous Coward | more than 2 years ago | (#36544404)

How can you fucking own a photo? You can own prints of it, not all renditions forever and ever and ever.

Re:First sentence (1)

ColdWetDog (752185) | more than 2 years ago | (#36545322)

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?

Re:Sorry, but this was NOT fair use (3, Insightful)

esocid (946821) | more than 2 years ago | (#36544456)

learn2read

Before the project launched, I knew exactly what I wanted for the cover — a pixel art recreation of the original album cover, the only thing that made sense for an 8-bit tribute to Kind of Blue. I tried to draw it myself, but if you've ever attempted pixel art, you know how demanding it is. After several failed attempts, I asked a talented friend to do it.

It was hand drawn.

Re:Sorry, but this was NOT fair use (0)

DavidinAla (639952) | more than 2 years ago | (#36544514)

It's still the same picture. Period. It's visually identical except for the resolution. There's not a legal difference whether a machine reproduces it or a hand does.

Re:Sorry, but this was NOT fair use (2)

eroded (1963338) | more than 2 years ago | (#36544728)

It's actually not virtually identical. Pixel art takes a lot of time & skill to create a sharp, decent looking image with a limited amount of space & a limited palette. For example take a look at the tie. It took someone the time to recreate that particular pattern, which is different from the original yet looks sharp & punchy. It makes me wonder: if he altered the colours would that be enough of a change? I'd like to think so.

Re:Sorry, but this was NOT fair use (1)

idontgno (624372) | more than 2 years ago | (#36544970)

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 should have been".

Re:Sorry, but this was NOT fair use (1)

eroded (1963338) | more than 2 years ago | (#36545170)

The photographer was asking for hundreds of thousands of dollars in damages. It would have been great of waxy to fight but it could have financially crippled him in the process. As it stands the law doesn't clearly define fair use or set any guidelines which is something we really do need to amend in this day & age.

Re:Sorry, but this was NOT fair use (1)

idontgno (624372) | more than 2 years ago | (#36545362)

I have to assume the nature of Fair Use is by design. There are some guidelines, but in everything else, Congress has apparently decided to let the courts shape Fair Use case-by-case. If someone can persuade Congress to set some boundaries, more power to 'em, but I'm afraid everyone who has Congress' ear on this subject are more inclined to abolish Fair Use or carve it down to nothing by law than to fix reasonable boundaries, so forgive my lack of enthusiasm for that avenue of approach.

Re:Sorry, but this was NOT fair use (0)

Anonymous Coward | more than 2 years ago | (#36544766)

It's still the same picture. Period. Period. Period.

Look how I turned your silly period into ellipsis! Ha, take that!

Re:Sorry, but this was NOT fair use (0)

Anonymous Coward | more than 2 years ago | (#36545148)

Maybe, maybe not.

Fonts are copyrighted solely on the basis of their letter forms, and slight variations are considered new designs. Copyright law is very unclear how different a subsequent work needs to be, and entirely inconsistent in how it applies the standard.

Re:Sorry, but this was NOT fair use (1)

Anonymous Coward | more than 2 years ago | (#36544522)

RTFA - it's obviously not a photoshop filter. It was created by a professional:

I tried to draw it myself, but if you've ever attempted pixel art, you know how demanding it is. After several failed attempts, I asked a talented friend to do it.

Even if it was a direct copy, fair use could still apply. In fact, that's the main purpose of fair use - to allow the original, unmodified work to be reused without the authors permission, under certain circumstances. The fact that this is a modified, derivative work only helps Baio's case.

Re:Sorry, but this was NOT fair use (1)

Smauler (915644) | more than 2 years ago | (#36544702)

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 century, then this guy was in the wrong.

It wasn't plagiarised (afaik), so it's entirely about copyright. Using a piece of art that you don't "own" is entirely 100% fine... apart from copyright.

Fair use doesn't enter into this admittedly - fair use doesn't include commercial enterprises using copyrighted images for personal gain, funnily enough.

Basically, my point is that it's _all_ about whether you like (long) copyrights or not. Using a random image that had been around for decades, and had been used elsewhere without problems, is probably a poor idea given our current legal framework, but I don't think it's wrong.

Re:Sorry, but this was NOT fair use (1)

cpt kangarooski (3773) | more than 2 years ago | (#36545292)

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?

Confused about what? (5, Insightful)

topham (32406) | more than 2 years ago | (#36543986)

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:Confused about what? (0)

Anonymous Coward | more than 2 years ago | (#36544092)

Exactly. I have no mod points but I'll give you a virtual fist bump.

Re:Confused about what? (2)

Seumas (6865) | more than 2 years ago | (#36544134)

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 that is about the same as taking any other copyrighted photo and applying the "charcoal" filter in photoshop and nothing more.

As for artistic value . . . I'm not sure that it being on a canvas on a wall in an art gallery where someone could offer you $500 for it is any different than putting it on the cover of an album of tributes and selling *that*. If one is wrong, then both are. Both are "artistic" as well as commercial (art is rarely done merely for art's sake).

The question is whether there were chances to deal with this much earlier? It seems that a rational person might have said "please stop doing this" and that would have been it. Taking it as far as tens of thousands of dollars in compensation seems a little unfair and money-grubbing. It's not like it was used on some corporate billboard somewhere.

Re:Confused about what? (0)

Anonymous Coward | more than 2 years ago | (#36545158)

"The question is whether there were chances to deal with this much earlier? It seems that a rational person might have said "please stop doing this" and that would have been it. Taking it as far as tens of thousands of dollars in compensation seems a little unfair and money-grubbing. It's not like it was used on some corporate billboard somewhere."

Yes, there probably was. If I saw one of my photographs being presented publicly without either credit or permission for that use, I'd be a bit miffed too. I certainly wouldn't resort to a lawsuit right away, and would make a request for people to stop using it. But if the same person involved in a non-profit cause asked me politely if they could use one of my pictures, I'd probably say "yes", with the only requirement being that they put a tiny credit somewhere on it.

Once they decided "Let's derive our artwork from this other artwork", they really should have asked before using it unless they were confident that it was out-of-copyright or that the person who did it was okay with that kind of use. That would have been the right thing to do. Just pixelating the work doesn't change the situation much if it is so obviously derived, and in this case I wouldn't be comfortable with the degree of transformation. It's not enough. I disagree that the original use he had in mind qualified as "fair use". Ironically, I agree that the use he put the image to in the web page for purposes of criticism and comment is just fine.

Even so, $30k is ridiculous as a settlement, although I suppose almost all of that went to recoup the costs of the lawyers sending the nasty letters and filing suit. That's where doing some up-front requests for permission can save you a lot of money and hassle.

Get the last laugh (2)

Culture20 (968837) | more than 2 years ago | (#36544014)

Pay the copyright holder with bitcoins.

Re:Get the last laugh (1)

Bucky24 (1943328) | more than 2 years ago | (#36544350)

Since they're not considered legal tender, unless the copyright holder is willing to accept them, paying a legal debt with bitcoins would not cause the debt to be considered fulfilled.

You can help: BUY THE ALBUM. (2)

neiras (723124) | more than 2 years ago | (#36544108)

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. (3, Insightful)

ScentCone (795499) | more than 2 years ago | (#36545006)

Help him out? When he won't even acknowledge that he ripped off the other artist's work? Why reduce the pain for someone who's that obnoxious?

Re:You can help: BUY THE ALBUM. (1)

neiras (723124) | more than 2 years ago | (#36545252)

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 (4, Insightful)

LS1 Brains (1054672) | more than 2 years ago | (#36544148)

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. Just because one can make a 5 second tweak to an image in Photoshop, using the original work someone else created, doesn't make it a new piece of work. He should have contacted the photo copyright holder up front just like he did with the music copyright holders. There is a direct correlation between the modification of works, but for whatever reason he feels the images are free, but the music is not? Perhaps that is only because we have the MAFIAA/RIAA to "thank" by putting the punishments for such actions prominently in our minds with all their deplorable legal shotgun tactics.

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.

Re:Not fair use (1)

ZJ AJ (1555443) | more than 2 years ago | (#36544356)

Reading the article, he more or less lays out why he settled - he figured out he was indeed in the wrong.

That's not how I read it. From the article:

"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."

How does that translate to "he figured out he was indeed in the wrong?"

IANAL, but especially considering that the nature of the transformation spoke directly to the nature of the product it was attached to, I think there's a legitimate argument to be made that this could have been fair use. Certainly the commercial nature of it mitigates that legitimacy, but it doesn't totally undermine it.

Re:Not fair use (2)

LS1 Brains (1054672) | more than 2 years ago | (#36544504)

I took that as "I'm trying to cover my butt, and my lawyers told me I can't win this one. Further, I understand it could be even more damaging to admit any guilt." Admittedly a bit of reading between the lines, but human nature isn't to come out and say "I goofed up, so I paid the guy." Look at how other entities handle cases that settle out of court. NOBODY ever offers an admission of guilt after the fact, and anything in print firmly states just that. A suit could probably offer a better explanation of the "why" on that one, perhaps it opens the door for future legal problems.

Re:Not fair use (0)

Anonymous Coward | more than 2 years ago | (#36544498)

Reading the article

Indeed, you might want to try that some time...

he more or less lays out why he settled - he figured out he was indeed in the wrong.

'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.'

Re:Not fair use (1)

eroded (1963338) | more than 2 years ago | (#36545298)

As I pointed out in another reply

"It's actually not identical [or produced by a Photoshop Filter]. Pixel art takes a lot of time & skill to create a sharp, decent looking image with a limited amount of space & a limited palette. For example take a look at the tie. It took someone the time to recreate that particular pattern, which is different from the original yet looks sharp & punchy."

He has a good case for fair use but the line is so fine that he has a reason to be worried about the courts ability to make a sane ruling.

Same deal for sexual harassment (0)

BlueCoder (223005) | more than 2 years ago | (#36544168)

There is a crisis in this country when it comes to health care and legal representation. As far as health care it's a very simple thing but people are determined to make money off of it.

While sexual harassment in the workplace is certainly an issue, it doesn't matter if your innocent, if someone files a bogus claim your job won't defend you; they will settle and you will be fired. It is just so much cheaper to settle than to defend yourself. And it's a crime that women that are actual victims don't get their day in court. Everyone just settles and are unhappy and the lawyers and politicians make out. And your nuts if you don't think the system is intentional... I think settlements should be illegal.

Re:Same deal for sexual harassment (0)

Anonymous Coward | more than 2 years ago | (#36545108)

And your nuts if you don't think the system is intentional...

My nuts? Harassment!

The problem is the system, not the case (3, Insightful)

makubesu (1910402) | more than 2 years ago | (#36544226)

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.

Re:The problem is the system, not the case (0)

Anonymous Coward | more than 2 years ago | (#36544882)

Noteworthy contradictions:

"All humans would be well-behaved angels if not for this horrible system preventing them from realizing their perfection."

"Also, even the most well-behaved human is inherently unable to resist the twin temptations of greed and pride."

"For the sake of our morality, which is powerless in the face of temptation, we should end this system and have the humans who can't resist the temptation of the current system create a new system."

Re:The problem is the system, not the case (1)

jklovanc (1603149) | more than 2 years ago | (#36544898)

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 known album cover without permission to sell an album of similar music is clearly not fair use. This is where the issue comes in and law suits occur. Opinions differ and only courts decide who is right. Sure they licensed the songs but they didn't license the cover art.

All lawsuits start with a threat of maximum damages as per statutes. It is the beginning bargaining position. The fact that it was settled for $32.5K means that the lawyer got most of it and very little went to the photographer.

Re:The problem is the system, not the case (0)

Anonymous Coward | more than 2 years ago | (#36545104)

"One major point you missed; the photographer was never asked, on bended knee or not, for permission to use the photograph."

You missed -his- point however, the system makes the copyright holder EXPECT people to ask, on bended knee, for permission for something done half a century ago.

With the current setup, it's legally "correct" for the great grandkids of an artist to expect someone to ask THEM on bended knee almost 2 centuries later for the right to use something as simple as a picture a relative drew.

As a side note, if today's copyright laws were in effect in the time of Shakespeare, the "dirty rotten pirate" would be serving time for copyright infringment instead of being the author of some very popular and well known, yet still derivative works.

A derivative work (0)

Anonymous Coward | more than 2 years ago | (#36544240)

The linked article is a decent explanation of fair use, but the author completely misses what his picture is: a derivative work. Copyright owners have full rights to derivative works, which are translations or recreations of a copyrighted work. For example, making a movie of a book or translating a French novel into English is a derivative work.

Transformative means things like public comment, parody, or a completely different use, such as copying a website to create metatags for a search engine. He used an album cover as an album cover - this is not transformative use.

It is an either way thing (3, Insightful)

91degrees (207121) | more than 2 years ago | (#36544270)

It looks to me like a derivative work. It's a verbatim copy, and not just something included incidentally,

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:It is an either way thing (1)

Seumas (6865) | more than 2 years ago | (#36544406)

It would seem to me that if it were classified as fair use, then one could use any photograph for any purpose they like, as long as they save it as a 256 or 64 or 32 color GIF. That is, essentially, what is being done in this depiction, visually.

Re:It is an either way thing (2)

I(rispee_I(reme (310391) | more than 2 years ago | (#36545100)

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 escaped the technological philistines that populate the U.S. court system, which results in justice being short-circuited by "settling".

Photography (-1)

Anonymous Coward | more than 2 years ago | (#36544444)

Everyone, always, tries to fuck the photographer. What they do is actually worth something.

original cover also used (4, Interesting)

slshwtw (1903272) | more than 2 years ago | (#36544554)

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 (3, Insightful)

Trepidity (597) | more than 2 years ago | (#36545032)

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 (1)

hamburgler007 (1420537) | more than 2 years ago | (#36544690)

Award treble damages to the defendant for the cost of defense. There will be lawyers lining up to take on these cases. (this will never happen)

Fair use? It's a myth! (1)

mschaffer (97223) | more than 2 years ago | (#36544732)

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.

Re:Fair use? It's a myth! (0)

Anonymous Coward | more than 2 years ago | (#36544792)

I give you: http://en.wikipedia.org/wiki/Campbell_v._Acuff-Rose_Music,_Inc

Fair use, recognized by the Supreme Court, for a commercial use. Just because the doctrine is difficult to understand, and is a risky legal position, doesn't mean it has been abolished.

Andy Warhol (0)

Anonymous Coward | more than 2 years ago | (#36544894)

I wonder if Andy Warhol would have made some of his famous paintings (Campbell's soup, Marilyn) in this legal climate.

Re:Andy Warhol (1)

Beelzebud (1361137) | more than 2 years ago | (#36545092)

All I can say is that I'm glad public libraries were set up before modern times, because today the concept would be shot down instantly.

"chilling effect" - what a sad statement (1)

Anonymous Coward | more than 2 years ago | (#36545196)

"the result is a chilling effect for every independent artist hoping to build upon or reference copyrighted works..."

Because, hey, what we really need isn't to respect or promote new creative ideas but rehashes, reshaping of others. Lots of people can play Miles, some people can improvise around it or recast it, but who is the next Miles?

It's a sad state when we equate the application of a photoshop filter to an image or replaying a song on computer chips to the talent required to create the original.

Shrug. Moochers in full force with tears.

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