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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.
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.
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.
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.
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.
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.