Fair use isn’t much good if you can’t afford it(gigaom.com)
gigaom.com
Fair use isn’t much good if you can’t afford it
http://gigaom.com/2011/06/24/fair-use-isnt-much-good-if-you-cant-afford-it/
41 comments
I don't know why the above post is getting down-modded. The point is definitely a good one, even if it was stated flippantly. As has been stated in previous threads on this subject, the image captures the creative work of the creator of the horn, the creator of the suit, etc. The photo is itself a mechanical transcription of a handful of other people's creative works. For the photographer to insist that his arrangement of other people's creative works is original, while somebody else's re-interpretation of the photo is not, is just wrong.
Good observation. And exactly correct. Lucky for Maisel, the barber, wardrobe stylist, tailor, and lighting designer can't (and wouldn't) sue him for derivative use of their efforts.
> You know, where you put some light sensors in front of something you did not create yourself and pretty much just collect the photons that bounce off it.
I'm going to go out on a limb and guess the original in this case was a studio shot, in which the lighting, background, angle of photography, and positioning of the subject were all chosen by the photographer in service of the vision that yielded the artifact generated by "collecting photons". Even outside a studio, a photographer has a lot of control over all of the variables. Weather is about the only thing they don't.
To reduce photography to such extremes is akin to saying coding is pretty much typing. By the time that happens, a lot of creativity has already been spent.
I'm going to go out on a limb and guess the original in this case was a studio shot, in which the lighting, background, angle of photography, and positioning of the subject were all chosen by the photographer in service of the vision that yielded the artifact generated by "collecting photons". Even outside a studio, a photographer has a lot of control over all of the variables. Weather is about the only thing they don't.
To reduce photography to such extremes is akin to saying coding is pretty much typing. By the time that happens, a lot of creativity has already been spent.
> You know, where you put some light sensors in front of something you did not create yourself and pretty much just collect the photons that bounce off it.
You're forgetting the editing that almost all commercial photographs get.
You're forgetting the editing that almost all commercial photographs get.
I absolutely agree, but I think that the creative part of photography comes from having "the eye" for knowing what a good photo will be, before it's taken. The photo would not have existed to be as good if the photographer did not apply his creative insight in capturing the photo.
But in my opinion, for photographers to dictate the terms of their photos' usage is nothing but hiding behind the status quo (the current copyright laws) to stroke their own egos. They don't want anyone else to be mistaken for as the "creator" of the photo, because that is just too damaging to their ego. They can't just capture an image for people to enjoy (by seeing, or by remixing, or whatever), they have to make sure their name is attached to it and in people's faces for all eternity.
It's really childish, but it's human behavior. We evolved in a world of finite resources where ownership of and the ability to defend those finite resources meant survival and status. Now we have this new medium where we can create resources and duplicate them nearly infinitely, but we're still hard-wired to try to control every one of those infinite copies, because they're MINEMINEMINEMINE. But we obviously can't watch what everyone is doing, so we just mercilessly beat down anyone who looks like they're getting any attention from using a copy.
Sorry for the wall of text, as a digital artist I feel pretty passionate about the subject.
But in my opinion, for photographers to dictate the terms of their photos' usage is nothing but hiding behind the status quo (the current copyright laws) to stroke their own egos. They don't want anyone else to be mistaken for as the "creator" of the photo, because that is just too damaging to their ego. They can't just capture an image for people to enjoy (by seeing, or by remixing, or whatever), they have to make sure their name is attached to it and in people's faces for all eternity.
It's really childish, but it's human behavior. We evolved in a world of finite resources where ownership of and the ability to defend those finite resources meant survival and status. Now we have this new medium where we can create resources and duplicate them nearly infinitely, but we're still hard-wired to try to control every one of those infinite copies, because they're MINEMINEMINEMINE. But we obviously can't watch what everyone is doing, so we just mercilessly beat down anyone who looks like they're getting any attention from using a copy.
Sorry for the wall of text, as a digital artist I feel pretty passionate about the subject.
I am a lawyer, and have studied copyright law, and in my opinion Baio's work is not even close to transformative.
Or course this is a matter of interpretation and we are deciding on degrees, but here is an example of what transformative is:
The case that Baio is relying on is Blanch v. Koons. Here is the original work: http://newsgrist.typepad.com/underbelly/images/silksandals.j...
Here is the work of the subsequent artist who was found to be "transformative": http://newsgrist.typepad.com/underbelly/images/koonsniagara_...
Can we agree that Baio's work doesn't arise to the level of transformativeness that the Koons work did?
Or course this is a matter of interpretation and we are deciding on degrees, but here is an example of what transformative is:
The case that Baio is relying on is Blanch v. Koons. Here is the original work: http://newsgrist.typepad.com/underbelly/images/silksandals.j...
Here is the work of the subsequent artist who was found to be "transformative": http://newsgrist.typepad.com/underbelly/images/koonsniagara_...
Can we agree that Baio's work doesn't arise to the level of transformativeness that the Koons work did?
Is this legal advice?
Oh this is just too cute.
Check out the photo used on the Jay Maisel facebook page: http://www.facebook.com/pages/Jay-Maisel/132844546752374
The photo facebook chose for his automatically generated 'community profile' just so happens to be a low resolution side by side of the two images in question, with no caption explaining that they're in fact different pictures.
So now Maisel has accomplished exactly the opposite of what he intended to. By suing Baio, he brought prominence to what would have otherwise been a very low distribution album, and now his facebook photo is the very image he was trying to bury.
Check out the photo used on the Jay Maisel facebook page: http://www.facebook.com/pages/Jay-Maisel/132844546752374
The photo facebook chose for his automatically generated 'community profile' just so happens to be a low resolution side by side of the two images in question, with no caption explaining that they're in fact different pictures.
So now Maisel has accomplished exactly the opposite of what he intended to. By suing Baio, he brought prominence to what would have otherwise been a very low distribution album, and now his facebook photo is the very image he was trying to bury.
It's from the Jay Maisel Wikipedia article, which is a lot more notable than the Facebook page for him.
It's there because it was uploaded from Andy Baio's article and described as his own CC-licensed work despite his assertion that it was fair use of Maisel's copyrighted image. I wouldn't count on it being there for too long given the level of scrutiny Wikipedia images endure.
Where do you get this impression Jay Maisel is trying to suppress the album? He settled for a substantial amount of money and got the image pulled, so he has no reason to be unhappy at this point.
Buying the album is support for Andy and this project, not a way to frustrate Maisel.
It's there because it was uploaded from Andy Baio's article and described as his own CC-licensed work despite his assertion that it was fair use of Maisel's copyrighted image. I wouldn't count on it being there for too long given the level of scrutiny Wikipedia images endure.
Where do you get this impression Jay Maisel is trying to suppress the album? He settled for a substantial amount of money and got the image pulled, so he has no reason to be unhappy at this point.
Buying the album is support for Andy and this project, not a way to frustrate Maisel.
What? I never said he was trying to suppress the album.
I was just talking about the picture.
Okay, I get it now -- I didn't follow your argument the first time I read it. Sorry about that.
In any case, the image is gone from both places now.
In any case, the image is gone from both places now.
The speed at which Twitter is amplifying and targeting public discontent is getting a little scary. It's becoming the digital equivalent of public stoning.
That's a fairly good sign that the legal system has been co-opted to the point where reasonable settlements are no longer possible.
In this case, it's worth noting that the troll (who is very VERY rich) was, himself, making absurd threats of ruinous financial violence. Indeed, that's what has infuriated so many people. The gag-order that Maisel tried (and failed) to attach to the settlement only underscored (a) his odious personal nature and (b) the sense that, shrill arguments aside, he was knowingly in the wrong. That is to say, nobody who wins a fair fight fairly feels any need to hush up the details.
It's also worth noting that unlike, say, an actual witch-hunt, or a mob interested in keeping a marginalized group on the outs, the most well-known cases are focused - almost exclusively - on egregious bullies, this example being a case-in-point. It's almost as though the body politic is developing an autoimmune response after excessive exposure to a dangerous pathogen.
The core of the issue is that we have a system of "public" law that has been transformed into a tool for private abuse by the rare few who can afford to use it. As such, it is no longer available for more widespread and lower-stake dispute resolution. This civic loss is considered "unacceptable collateral damage" by those few who'd restrict use of the courts to their own enrichment. The growing presence of justifiably angry mobs who are willing to target bullies suggests that isn't the case.
A democracy is only as good as it's justice system. Ours, quite frankly, is a mess. If the street is the only source of protection for the majority of people, we've lurched a step closer to open class warfare, and that's a very sorry state indeed.
In this case, it's worth noting that the troll (who is very VERY rich) was, himself, making absurd threats of ruinous financial violence. Indeed, that's what has infuriated so many people. The gag-order that Maisel tried (and failed) to attach to the settlement only underscored (a) his odious personal nature and (b) the sense that, shrill arguments aside, he was knowingly in the wrong. That is to say, nobody who wins a fair fight fairly feels any need to hush up the details.
It's also worth noting that unlike, say, an actual witch-hunt, or a mob interested in keeping a marginalized group on the outs, the most well-known cases are focused - almost exclusively - on egregious bullies, this example being a case-in-point. It's almost as though the body politic is developing an autoimmune response after excessive exposure to a dangerous pathogen.
The core of the issue is that we have a system of "public" law that has been transformed into a tool for private abuse by the rare few who can afford to use it. As such, it is no longer available for more widespread and lower-stake dispute resolution. This civic loss is considered "unacceptable collateral damage" by those few who'd restrict use of the courts to their own enrichment. The growing presence of justifiably angry mobs who are willing to target bullies suggests that isn't the case.
A democracy is only as good as it's justice system. Ours, quite frankly, is a mess. If the street is the only source of protection for the majority of people, we've lurched a step closer to open class warfare, and that's a very sorry state indeed.
Twitter isn't really amplifying it, people are. It's the dynamics of an angry mob. Twitter just facilitates communication that's closer to a group of people in real-time than previously possible.
That doesn't look like fair use to me. He took an album cover, made a minor transformation to it, and used the result as an album cover.
To me, it does look like fair use. But I'm not a lawyer. I found this argument pretty compelling, though:
http://mrgan.tumblr.com/post/6840184364/hand-pixelated
"That cover is NOT the original photo, downsampled. It’s a hand-crafted, precisely drawn interpretation of the source. Anyone who’s ever seriously put pixels to screen will tell you that this is an actual artistic method, one with its own challenges, tricks, and yes, an aesthetic."
http://mrgan.tumblr.com/post/6840184364/hand-pixelated
"That cover is NOT the original photo, downsampled. It’s a hand-crafted, precisely drawn interpretation of the source. Anyone who’s ever seriously put pixels to screen will tell you that this is an actual artistic method, one with its own challenges, tricks, and yes, an aesthetic."
That is the key point.
If painting a version of a photo in oils is allowed, then this is allowed.
If painting a version of a photo in oils is allowed, then this is allowed.
Is selling an oil painting of a copyrighted photo allowed?
First, neither you, nor I, nor, indeed lawyers, get to decide "fair use". It has to go to trial. That's part of the point of the article.
Second, the test for fair use doesn't include some percentage of copying. Here (http://arstechnica.com/tech-policy/news/2011/03/copyright-tr...) is a case where copying an entire article got ruled "fair use".
Third, in my judgement, the transformation was quite extensive. Compare representations of neckties in both images. Lots of transformation. Is my judgement better or worse than yours?
Second, the test for fair use doesn't include some percentage of copying. Here (http://arstechnica.com/tech-policy/news/2011/03/copyright-tr...) is a case where copying an entire article got ruled "fair use".
Third, in my judgement, the transformation was quite extensive. Compare representations of neckties in both images. Lots of transformation. Is my judgement better or worse than yours?
> Second, the test for fair use doesn't include some percentage of copying.
This is incorrect. 17 USC 107 spells out four criteria on which fair use claims are to be evaluated, the third of which is "the amount and substantiality of the portion used in relation to the copyrighted work as a whole".
Now it is true that using the entire work doesn't automatically preclude the success of a fair use claim, but it's a much steeper hill to climb and will rest heavily on the other factors being in your favour, which wasn't the case with Kind of Bloop (the significance of the transformation seems to be up for debate, the work was very definitely commercial, some apparent degradation of the commercial value of the photo-as-album-art since it was being used here as album art without payment).
This is incorrect. 17 USC 107 spells out four criteria on which fair use claims are to be evaluated, the third of which is "the amount and substantiality of the portion used in relation to the copyrighted work as a whole".
Now it is true that using the entire work doesn't automatically preclude the success of a fair use claim, but it's a much steeper hill to climb and will rest heavily on the other factors being in your favour, which wasn't the case with Kind of Bloop (the significance of the transformation seems to be up for debate, the work was very definitely commercial, some apparent degradation of the commercial value of the photo-as-album-art since it was being used here as album art without payment).
That's not what "degradation of the commercial value" means. Not paying a license fee in a case where an artist could conceivably demand one in the absence of Fair Use is not the same as actively undermining the market for the original image - which is what the law is actually concerned with.
This is why posting free copies of other people's movies online is considered damaging. Even if you don't make money yourself, you create an option from a potential customer who would pay to avoid doing so. In this case, the pixelated version is on par with the tracks themselves - legitimate variations that are conspicuously different.
Indeed, the presence and proliferation of noticeably derivative works like this tend to increase the iconic and commercial value of the source by creating the kind of halo effect people associate with "the original." It's entirely reasonable to assume that "Kind of Bloop" actually enhances the commercial value of "Kind of Blue", and everything associated with it.
This is why posting free copies of other people's movies online is considered damaging. Even if you don't make money yourself, you create an option from a potential customer who would pay to avoid doing so. In this case, the pixelated version is on par with the tracks themselves - legitimate variations that are conspicuously different.
Indeed, the presence and proliferation of noticeably derivative works like this tend to increase the iconic and commercial value of the source by creating the kind of halo effect people associate with "the original." It's entirely reasonable to assume that "Kind of Bloop" actually enhances the commercial value of "Kind of Blue", and everything associated with it.
While the transformation was minor, the visual change was quite drastic, and moreover is an incredibly apt description of the album he created.
IANAL, but for real, it looks a great deal like fair use to me.
IANAL, but for real, it looks a great deal like fair use to me.
That's not the point. It's possible what he did should be protected by fair use. It's also possible that it shouldn't be and that he owed money. The point is, there was never a trial to decide it one way or another, he had to settle, not because he thought his case was weak, but because it was cheaper than if he did take it to court, win or lose.
The problem is that attempting the fair use defense results in an "I win or you lose" case, where either the defendant wins the case and loses some money, or the defendant loses the case and loses some more money.
The problem is that attempting the fair use defense results in an "I win or you lose" case, where either the defendant wins the case and loses some money, or the defendant loses the case and loses some more money.
[deleted]
Fair use and open source isn't much good if you can't afford it.
Like free|open|fair offers exclude people with verifications (e.g. use Heroku & modern db without bank/credit?: http://devcenter.heroku.com/articles/no-credit-card - No.).
Like free|open|fair offers exclude people with verifications (e.g. use Heroku & modern db without bank/credit?: http://devcenter.heroku.com/articles/no-credit-card - No.).
Get a prepaid card, use it.
I have. It does not work. :(
Heroku does not process prepaid/gift cards.
Common problem.
Heroku does not process prepaid/gift cards.
Common problem.
Good God, Maisel's house is incredible!
The original blog post came up yesterday and I held back, but now that it came up again, I just don't see their defense. They sold a product with an unauthorized image. The images are so similar that anyone would say "Why yes, this was made off of that." If it is personal non-commercial use its no issue, but its not!
The argument is, as has been stated many times between the two posts "fair use". The fact that it obviously came from a copyright image does not disqualify it for fair use; it is required for fair use to even make sense. Commercialness is also not a requirement for fair use.
The main argument, that would likely pass in court, is that this use can in no way be mistaken for the original image, nor can it replace it or have any effect on its market value. It's a bit more complicated than that, but that's the gist.
The main argument, that would likely pass in court, is that this use can in no way be mistaken for the original image, nor can it replace it or have any effect on its market value. It's a bit more complicated than that, but that's the gist.
Baio felt he needed to (and did) license the songs from Miles Davis's publisher in order to distribute "low res" recreations of them. I guess I don't understand why he didn't feel like he needed to license the cover image in order to distribute a low res recreation of it.
Section 115 of the Copyright Act of 1976 includes a specific provision mandating a compulsory license for covers of songs.
What you're missing is that there may be multiple copyrights that apply to any particular piece of recorded music. In particular, there's the copyright covering the song itself (i.e. the notes written on paper), and there's the copyright covering the recording (i.e. the actual performance that you listen to). As far as I can tell, he paid for the song itself. He wasn't paying for the license to distribute a "low-res" version of the original recording — he was paying for the right to record his own versions of the songs.
This is why it's OK to sell your own performances of Beethoven's music (which has long been in the public domain) without paying anyone, but you can't freely copy a Vanessa Mae CD and hand it out to people on the street. There's no copyright to the song itself anymore, but the modern recording is still protected.
A photograph is more like a recording than it is like sheet music. If I happened to be standing right next to the photographer and intentionally snapped an almost identical shot half a second later, he couldn't sue me for infringing on his copyright.
If he had significantly transformed the tune itself, he wouldn't have even needed to pay for that, but AFAICT he produced faithful Nintendo-style performances of the original songs. That's why he needed to pay the rightsholder for the song.
This is why it's OK to sell your own performances of Beethoven's music (which has long been in the public domain) without paying anyone, but you can't freely copy a Vanessa Mae CD and hand it out to people on the street. There's no copyright to the song itself anymore, but the modern recording is still protected.
A photograph is more like a recording than it is like sheet music. If I happened to be standing right next to the photographer and intentionally snapped an almost identical shot half a second later, he couldn't sue me for infringing on his copyright.
If he had significantly transformed the tune itself, he wouldn't have even needed to pay for that, but AFAICT he produced faithful Nintendo-style performances of the original songs. That's why he needed to pay the rightsholder for the song.
<IANAL> Given that the image is associated with the same tunes and same album name makes it seem at least plausible that it could have an effect on the market value of the original photograph.</IANAL>
The songs and album name are also slight derivatives as well, he wasn't just slapping new album art on the original.
We are rapidly approaching the point where all intellectual activity by men of average means is likely infringement of some kind or another on corporate "property". Only the rich can create. Right to read? Heh. Right to think.
Edit: Perhaps I should have said "Right to write." The return of read only culture with an ugly vindictive vengeance. I just didn't like the homophone. (Plus "write" didn't quite cover stupid patents, ridiculous trade marks, and silly copyright claims all together.)
Edit: Perhaps I should have said "Right to write." The return of read only culture with an ugly vindictive vengeance. I just didn't like the homophone. (Plus "write" didn't quite cover stupid patents, ridiculous trade marks, and silly copyright claims all together.)
That tin hat of yours comfortable?
Asserting that the government is going to make thinking illegal makes regular ol 2012 alarmists look good in comparison.
Asserting that the government is going to make thinking illegal makes regular ol 2012 alarmists look good in comparison.
Not illegal. Infringement. As in you do your damndest to clear every right and follow every legal precedent in making your neat little 8 bit music tribute (that you had no intent to even profit from) and some rich asshole can call it infringement anyway and steal just about everything you've got because you can't afford a "defense".
The system has (d)evolved to exclude you from participating in it completely unless you're already a wealthy player.
And yeah, my hat is damn comfy. Its top of the line.
The system has (d)evolved to exclude you from participating in it completely unless you're already a wealthy player.
And yeah, my hat is damn comfy. Its top of the line.
Well, this is absolutely hilarious really -- I mean, hold on, what is the original work we are talking about here?
Photography.
You know, where you put some light sensors in front of something you did not create yourself and pretty much just collect the photons that bounce off it.