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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."
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.
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).
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Because the US isn't interested in stopping frivolous lawsuits. This is the system working as intended. Giving lip service to fairness, while giving the rich and powerful a cudgel to punish anyone who actually tries to exercise their rights.
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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.
Wikipedia uses a non-pixelated version and accepts donations and distributes them to the people that work on Wikipedia. Why aren't they targeted by Jay Maisel?
Because predators prey on the weak.
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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.
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.
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.
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.
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 poster? The transformation in that case was much more dramatic than in this one and they still ended up settling out of court.
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.
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."
The key is: a tribute isn't fair use. It's a normal commercial product. It's not a parody. It's not a critical discussion. It's a product.
This was understood for all the music, which was properly licensed, but for some reason he didn't think he needed to license the cover artwork. That's just a mistake, not some miscarriage of justice.
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The copyright owner of a little used work *wants* their copyright to be violated
How does that apply to one of the most successful albums in human history?
Wikipedia isn't sued bacause they are a critical discussion of the product, not a related product.
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