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Expense and Uncertainty Plague 'Fair Use' Defense
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."
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 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:
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?
My work here is dung.
That photo should flat out be public domain at this time regardless of whether the photographer is a live or dead.
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.
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.
I've never had a submission used without recognition. http://slashdot.org/submission/1670128/Cant-Afford-Lawyers-Then-It-Isnt-Fair-Use
Absolute power corrupts absolutely. indymedia
Perhaps Andy Baio should have consulted a lawyer before publishing said work?
Sheeesh.
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).
I live ze unknown. I love ze unknown. I am ze unknown.
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.
Give me Classic Slashdot or give me death!
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.
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.
Pay the copyright holder with bitcoins.
Seriously, whether you like chiptune or not, the FLAC version is $5 and the MP3 even less. Help the man out.
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.
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.
It's a small world and it smells funny; I'd buy another if it wasn't for the money; Take back what I paid (SoM)
I am not an anarchist, but cases like this make me sympathize with them. Look at how this system is corrupting men. As the writer rightly notes, it's not about whether the image falls under fair use. Indeed, given that the writer specifically went and got permission to use the make the music eight-bit, it seems inconsistent that he should not also ask permission to use the cover art. But this is all beside the point. The main question is why did the photographer sue him for such a ridiculous amount of money, or any money at all?
There are two explanations: greed and pride. Greed is caused by the system. He would consider a reasonable amount for the penalty, but he knows that he can sue for more, and knows that suing for more will get him a better deal out of the settlement. Even a good man cannot resist the temptation to sue for more money. The system has corrupted him. Pride too is caused by the system. Because of the system, the photographer has an inflated view of his ownership of the image. How dare this artist not come on his knees and beg for permission to use my artwork. Thus, instead of happily agreeing to let him use the image, he feels he must use the full force of the law.
We see then that the law has taken on a life of its own, and begun to corrupt the society it claimed it would protect. For the protection of our own morality, we should put an end to this.
It 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.
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.
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."
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)
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.
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.
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.
I think settlements should be illegal.
You should sue!
"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.
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?
Faster! Faster! Faster would be better!
http://ocremix.org/forums/showthread.php?p=790254#790254 "In my opinion, the album art was not particularly more or less transformative than the music on the album. If the intent was commercial sale, and the music was licensed to be above board, as mentioned, the album art probably should have been treated the same way, right? I'm not saying the photographer's not being a douche, or that the sums asked for weren't inappropriate, or anything of that regard, I'm just saying, if you look at the album as comprised of two elements - the music, and the cover - the first was licensed for commercial sale, and the second was not, so if you make a fair use argument for the cover... why not the music as well? If you acknowledge that the music needed to be licensed in the first place, and hence did NOT fall under fair use, it seems odd to make the opposite argument for the album art. That's my only real point, but I feel it's worth making, because it seems like music is often treated very differently (MORE scrutiny & copyright concern) than images. My favorite example that hits close to home is video game fan art vs. video game fan mixes. Peeps been submitting drawings of Mario, Zelda, etc. to EGM before the Internet took over, but the second mixes became a thing, everyone was VERY concerned w/ copyright issues. Again, no hate. We talk about fair use a lot here, it's relevant to us, and I'm pretty sure all of us read this article as a damn unfortunate thing happening to a good person. It's just... that doesn't make him right about the law, or fair use, and I just thought the inconsistency between the music being licensed and the image not was worth mentioning."
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.
SJW: Someone who has run out of real oppression, and has to fake it.
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 the corollary of that is that is ALL they are required to accept. You can't be a smartass and pay in something else and say "You have to take it!"
Except from the sounds of it, this wasn't some rich and powerful entity cudgeling the little guy -- it was some douchebag photographer with a vastly overinflated need to protect his work.
--Jeremy
Jesus was a liberal
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 case. Get on with your life. Eventually, a warranted bailiff may - may - turn up at your door. At that point, if you've got less than $32K-and-change in seizable assets on hand, well, it still works out cheaper than paying a lawyer to hand over that amount of cash up front.
If you were blocking sigs, you wouldn't have to read this.
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.
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 existing works and ideas. If an author is unwilling to credit and compensate those who influenced and inspired his ideas and works, then for him to require others who are influenced and inspired by his works to do so is simply hypocritical--and I have no sympathy for hypocrites. "Do as I say, not as I do" is basically evil.
The examples he gave are well-chosen. For the Obama poster, the only person in the world who should even have a shred of a right to complain is Obama himself, because it's his face. The idea that pressing a shutter button over and over again in a press conference entitles a photographer to have a say in how someone else's face is used in other works is absurd--it's purely based on greed. The same goes for the photo he used: that photo of Davis is, what, over 50 years old, and the photographer feels "violated"? The only person who should have any right to feel violated is Miles Davis, because it's his face--but he's dead! Maisel is simply full of greed, selfishness, and pride--none of which I have sympathy for. A real artist would be pleased to see his work so acclaimed that it was replicated and reused and built upon, seen by more and more people. Someday he will pass on as Davis did and as we all do, and then it will matter nothing. Eventually his photo and all copies of it will cease to exist as well, just like the whole world will, and then it will matter nothing. What will matter is how he treated other people during his life, and in this case, it was not well.
Maisel's lawyers should also be ashamed of their evil greed and bullying--but that's not news, is it?
I suspect that in 50-100 years we'll either have technically-enforced copyright laws or no copyrights at all. The alternative seems to be an ever-increasing number and complexity of laws, cases, and lawsuits, and the gradual grinding-to-a-halt of creativity--except, perhaps, by "authorized" corporations who have legal armies and enormous profits, who either negotiate blanket licenses or rely on MAD to prevent litigious apocalypse.
"Those who consume the bulk of goods are those who make them. We must never forget this secret of our prosperity."
You are the man. I'm glad I'm not the only one who sees it this way.
"Those who consume the bulk of goods are those who make them. We must never forget this secret of our prosperity."
Does that actually happen most of the time, or is it just an option?
"Those who consume the bulk of goods are those who make them. We must never forget this secret of our prosperity."
I can imagine people hiring the cheapest lawyer possible because, hey, even if I lose, I'm only paying a couple grand.
And what about people who choose to represent themselves?
"I'm not sure I like the fugnutish tone you used in your post!" -RogL (608926)-
I can imagine people hiring the cheapest lawyer possible because, hey, even if I lose, I'm only paying a couple grand. And what about people who choose to represent themselves?
What you forget that this is only about the court costs and not about the penalty. If you lose you will still have to pay whatever penalty the court decides.
Someone, please.
"Those who consume the bulk of goods are those who make them. We must never forget this secret of our prosperity."
What you forget that this is only about the court costs and not about the penalty.
While not apparent to me the first time I read it, upon re-reading Toonol's post, I suppose that could be what they meant with their suggestion.
"I'm not sure I like the fugnutish tone you used in your post!" -RogL (608926)-
SAME FUCKING THING I was wondering. I don't have 32k to piss away in lawsuits. That's insanity given the scale of the "offense". Wtf is wrong with people?
Also: just think of all the lawsuits over pixellated versions of The White Album cover?
If your case has merit, and you stand a good chance of winning money, you'll have no problem finding lawyers (they'll gladly work on contingency if they see money at the end of the tunnel). The problem comes when your case has merit, but you stand no chance of winning any money (i.e., when you're a defendant in a U.S. lawsuit).
SJW: Someone who has run out of real oppression, and has to fake it.