
Photography Is "Copying;" More Fallout from Maisel vs. Baio - secretwhistle
http://www.techdirt.com/articles/20110625/01030814852/if-jay-maisels-photograph-is-original-artwork-then-so-is-pixelated-cover-kind-bloop.shtml
======
grellas
The issues here can be argued endlessly without resolution because the only
definitive way to resolve a fair-use dispute where the issues are close is to
take it to trial in a federal court.

17 U.S.C. sec. 107 provides that, "in determining whether the use made of a
work in any particular case is a fair use the factors to be considered shall
include [four factors]" (which factors are the "purpose and character of the
work" (including whether it is commercial or non-profit), the "nature of the
copyrighted work," "the amount and substantiality of the portion used in
relation to the copyrighted work as a whole," and the "effect of the use upon
the potential market for or value of the copyrighted work." These factors
represent the so-called 4-part test used by courts to determine whether an
allegedly infringing use is "fair use" or not.

These factors constituting the broad legal test for fair use are very general
and can apply in a thousand different ways and combinations to different
facts. What is worse, the four statutory factors, though first _codified_ by
Congress in the 1976 Copyright Act, had first been developed by courts long
before that and were never the exclusive factors to be used in making a fair-
use determination. Thus, when Congress codified them, it specifically provided
that the fair-use determination was to "include" those factors but was not to
be limited to them. Thus, the legal test was deliberately kept vague and was
all along intended to be left for final determination, case-by-case, in the
courts.

Given this legal landscape, anyone who wants to take a copyrighted work and
transform it to a new use even while copying it in whole or in part risks an
infringement suit and, the closer to the legal line the copying gets, the
greater risk that a lawsuit will be filed and will need to be defended all the
way to trial (with a substantial 6-figure price tag being inevitable in such a
case - see <http://news.ycombinator.com/item?id=2688599>). This is because
fair use is not a bar to a lawsuit; it is merely an affirmative defense that
one can try to stand upon in defending against an infringement action. In
defending, though, you also run the risk of losing on the merits and so you
run the risk not only of having to incur hundreds of thousands in legal fees
but also that of having to pay huge statutory damages should you lose the
case.

That is the dilemma in which Mr. Baio found himself. He believed himself
right. But he had no way to test it short of incurring large lawyer costs and
liability risks. Nor can he ever win the "case" definitively in a court of
public opinion because it is too close. He _does_ have a compelling argument
(his work can readily be argued to have independent artistic value and to be
transformative and not in any way supplanting any market opportunity available
to Mr. Maisel). But there is no way to definitively refute the equally
compelling argument that Mr. Maisel can make (a substantial part of his work
was used, or at least the "heart" of it and the aesthetic additions do not -
he would argue - truly transform a work that remains primarily imitative in
quality). Yes, good lawyers can sharpen and refine these arguments to the nth
degree and that is where the 6-figure price tags come in. Of course, the only
way to test who is right is through a trial. And, there being no practical way
to get to a trial, the issue will remain unresolvable.

Note that a legislative solution to this type of issue is possible. Just as
the fair-use statute explicitly says that one form of fair use is for
"criticism," it might also say that it is a fair use to take a photograph and
to do a pixelated rendering of it that adds artistic elements. Law can always
be defined this way if desired. But, just as one does not code well by
addressing only a specific case where a broader algorithmic solution is
possible, one also does not normally pass laws to deal with isolated,
individual cases where broad principles can govern a broad swath of cases.
Copyright applies to countless situations and the fair use rules are broad and
general. Given this, a dispute such as this will always prove frustrating to
litigants and those with deep pockets will inevitably have the advantage.

~~~
ajkessler
You're pretty much spot on. After taking several copyright courses in law
school, I can definitively say that the whole area of law is a clusterfuck.
Even the seminal cases aren't consistent, let alone those on the periphery.
Sadly, most of the closer cases seem to come down the a single judge's gut
feeling. If either side has deep enough pockets, they can force the case to
come down to a panel of judges' gut feelings, but even the Circuit courts hold
wildly inconsistent rulings. I'm not bashing judges here: the law here isn't
so much a guideline as it is guide posts. It's not surprising that there's not
much consistency.

It's really frustrating for anybody trying to create. It can even be
frustrating for the lawyers trying to practice in the field. I ran across this
insightful, if slightly biased, post by William Patry, a fairly famous
copyright lawyer, explaining his decision to shut down his personal copyright-
based blog. He explains the decision as being partly motivated by the
landscape of copyright law: <http://williampatry.blogspot.com/2008/08/end-of-
blog.html>

------
thaumaturgy
I would love to hear an opinion on photographing "The Bean" from a
photographer that's defending Maisel.

("The Bean" is a sculpture in a public park which is protected by copyright
and, therefore, illegal to take a photograph of. This seems absurd to most
people, including photographers. More:
[http://newurbanist.blogspot.com/2005/01/copyrighting-of-
publ...](http://newurbanist.blogspot.com/2005/01/copyrighting-of-public-
space.html))

I wonder if there are photographers that would argue that it should be OK to
photograph a copyrighted sculpture _and_ that it should not be OK for another
artist to create a derivative work from a photograph ... that would be an
interesting argument to hear.

~~~
wisty
Photographers will argue that 90% of a photograph is composition, not the
subject.

Even though a pixelated adaptation of a photo is different, it's got the same
composition. For example, that Miles Davis photo perfectly lines up his head
and hands to fill the square CD cover. It also uses light and shade to make
the subject's features really stand out. So through a the lens a photographer
sees through (horrible pun), it's very derivative.

A pixel artist will disagree, of course. They will say that composition isn't
as important as getting the pixels just right.

(Actually, bean is interesting because it actually changes the composition).

~~~
greendestiny
I think the pixel version of this artwork is much more derivative than an
8-bit cover version of the music, yet they sort permission from Mile Davis's
estate to use his music. Then they settled out of court. I have no idea why
this is the internet's latest crusade.

If they'd have given 1000 artists (including photographers) the brief of an
album cover of Kind of Blue, I doubt any would have been so similar to
Maisel's. Give 1000 pixel artists Kind of Blue and ask then to do a straight
pixel version and they'd all be indistinguishable. And despite the supposed
outrage for the rights and artistic merit of pixel art, I haven't seen any
pixel artists stand up for this straight copy of a photograph. I don't think
any of them would consider it a particularly enlightening representation of
their art form.

------
thegooley
An interesting viewpoint, but I think the differentiation here lies in the
degree of "artistic" creation. Put 10 photographers in a room with Miles Davis
and you'll get 10 pretty distinct photographs of the man. Have 10 people
create a pixelated version of a photograph, and you'll have 10 pretty similar
results.

Creating a pixelated version of this photograph is more akin to taking a
photograph of the Mona Lisa - sure you can get a cool angle or do it with
infrared film to get a different color palate, but it's still a picture of
someone else's original work. You wouldn't say that the Miles Davis cover
photo is "based on a Miles Davis concert", but rather it was created _at_ a
Miles Davis concert.

Similarly, in music, remixing a song can be a very creative process - but it
is still a derivative work in that it wouldn't exist without the original
which was created "from scratch".

(Disclosure: I am/was a photographer who used to earn a living solely from
licensing my photos for editorial purposes)

Edit: I'm not attempting to discuss copyright laws (which are pretty clear),
but rather the philosophy and justification behind the creation and copying of
artistic works.

~~~
ars
> Put 10 photographers in a room with Miles Davis and you'll get 10 pretty
> distinct photographs of the man. Have 10 people create a pixelated version
> of a photograph, and you'll have 10 pretty similar results.

Interesting because I would have said _exactly_ the opposite. 10 photographers
(all using the same pose from the same location of course) would make nearly
identical photos. But the pixel artists would have been totally different.

Take a look at how the cuff or the diamonds on the tie were drawn - you really
think everyone would have done it exactly the same?

~~~
ralfd
There are many pictures of Miles Davis but all are different to the one on the
kind of blue album. That was the point of the OP.

------
kenjackson
There are people that look like Miles Davis in that picture. If I take a
picture of one of them, in the same looking clothes (although certainly not
exactly the same) holding a similar trumpet, with similar lighting, would that
violate copyright? At a quick glance maybe indistinguishable. At closer side
by side inspection, any amateur investigator could spot the differences.

~~~
esrauch
I'm not really convinced that would be sufficient; if you paint a duplication
of an existing painting you are really stealing the likeness and profiting
solely by distributing someone else's creative work. I think if someone did
your example, if they could prove that your intent was simply to reproduce
your creative work you would still be infringing even if you don't simply copy
paste it.

If you paraphrased Harry Potter and published it, it would probably still be
copyright infringement even if no single sentence in the novel remains
unchanged.

It seems to me that it comes down to whether the work you made is a derivative
work of someone else, particularly if you are directly taking their creative
vision and adding nothing. Reproducing something in another medium easily
could be the same thing as photocopying a book or selling prints of someone
else's painting.

~~~
kenjackson
I suspect you are probably right. What this leads me to believe more and more
is that there is no natural right to art. I'm really feeling more like
copyright needs to just go.

~~~
jibbit
It has nothing todo with what is 'natural'. There is no natural right to land
ownership - it's just the system we choose democratically because we believe
that the advantages it brings outweigh the certain misery it causes the
impoverished. Few of us believe that abolishing the right to Private Property
would, on the whole, bring about a net gain for the majority. Personally, i
don't believe that the Maisel case has much to say about abolishing Copyright.
That doesn't mean i'm not in favour of doing so, but Maisel is an edge case.

~~~
kenjackson
Actually, the most prominent scholars in this field often do include land
ownership as a natural right. John Locke, the modern father of natural law,
described natural rights as, "life, liberty, and estate". I think its largely
settled philosophy now.

Copyrights are still much more debatable. The main defense for pro-copyright
activists are that they're necessary for the economy. I tend more and more to
the belief that the economy will change as a result -- a freer economy, but a
different one.

------
ajays
I am really disappointed in the reaction of Maisel, and other photographers
who're supporting the result of the lawsuit. _Even if_ Baio copied the image
pixel-by-pixel, what harm was done? Did anybody buy the Bloop because of the
album artwork? Or because of the music? Come on, people! Show some common
sense! A fine of a few 100 dollars would have been enough.

On a tangential note: this is well worth a watch:
<http://www.everythingisaremix.info/watch-the-series/> No wonder pop music
today is so crappy.

~~~
anonymous246
I, for one, was glad to see an Internet celebrity whacked by an individual
artist. As somebody else pointed out, the $32.5k he got probably went straight
to the artist's lawyers. It was pretty telling that Baio licensed the music
but not the cover art. The blog article never explains why his chiptune
versions of the _music_ don't count as fair use. And he admits he didn't
accept the copyright infringement claim immediately but stalled for _seven
months_.

I am almost certain a different, happier arrangement could have been worked
out if he'd agreed to license the artwork right at the beginning.

~~~
kenjackson
_I am almost certain a different, happier arrangement could have been worked
out if he'd agreed to license the artwork right at the beginning._

Maisel has said that he would never license this artwork for that purpose. So
there would have been no licensing deal.

"And it's worth noting that trying to license the image would have been moot.
When asked how much he would've charged for a license, Maisel told his lawyer
that he would never have granted a license for the pixel art. "He is a purist
when it comes to his photography," his lawyer wrote." [1]

1\. <http://waxy.org/2011/06/kind_of_screwed/>

~~~
goatforce5
Of course he's going to say there's no price he'd have licensed the image at -
he was trying to get damages out of Baio, so why put a limit on how much his
damages were?

------
headShrinker
I publish software as software developer, publish music as a musician, and
'copy' as photographer... publishing rights are on the top of my mind every
time something of mine goes live.

The writer tries to make a valid comparison between taking a picture, and
taking an already created already popular picture and modifying it. There are
a lot of variables involved process of taking a previously published picture
and copying it, the writer want us to believe, the variables make it original.
If the two art forms were comparable you could take that famous, extraordinary
picture of Miles again, just like I could recreate that pixelated pic of the
picture of Miles again. There are many problems with this: one, Miles is dead,
two, the best photographer could not catch that moment at that time because
one thing about photography is every shot is one in a billion trillion, no two
shots are the same. Other problems with this comparison go on and on.

If you wanted to extend that metaphor to music, 'there are only 88 keys on
piano. Every song written is copying some sampling of those 88 keys. No need
for music composition copyright anymore.' Obviously, this is not the case.
Yet, sampling a segment from a song to use in your song is usually obvious to
the listener and is commonly and 'easily' fought in court. photography is not
copying and if you think it is, I will hand you my camera, and ask you to take
that picture again.

~~~
jfoutz
Say what you will about the art institute, but they disagree. "You may not
reproduce the Art Institute of Chicago’s logo or building image, which are
also trademarks, without an express license from the Art Institute of
Chicago."

Why would people ever need such a thing as a
[http://www.google.com/search?&q=photography+release+form](http://www.google.com/search?&q=photography+release+form)
if it's not copying someone's likeness?

The "moment in time" argument is clearly weak when you compare it to copying
from your neighbor's physics final. "No one could copy Feynman's sophomore
year final exam! He's dead. It was a performance such as the world will never
see again."

I agree with you, photography is art. There is a huge amount of talent luck
and preparation required to get that shot. I'm just saying your defense of
photography seems weak. It's pretty trivial to create derivative work with
photography (hence the releases and licenses).

The reason we're never "forced" to agree, in a math problem sense, is the line
between original and derivative is so subjective. A photo of a person is
derivative. A photo of a crowd is unique. A photo of this building is a
trademark violation, no matter how artfully done. The most pedestrian photo of
the building across the street is fine.

Fuzzy, ambiguous rules kinda piss me off.

~~~
headShrinker
"A photo of a person is derivative. A photo of a crowd is unique. A photo of
this building is a trademark violation, no matter how artfully done."

Solid point.

------
Dramatize
Do the people arguing that Baio stole the image also argue that photographers
who take photos of building are stealing the architects designs?

Isn't it the same thing?

~~~
callmeed
Building owners can require a property release in order for their structure to
appear in a published work.

~~~
ghaff
As I understand it (IANAL), this is a somewhat controversial point of IP law.
However, in the interests of playing it safe, a lot of stock photo agencies do
require property releases for certain iconic structures such as the Sydney
Opera House. This is in the same vein as model releases however. it's not
copyright but the use of a likeness for commercial purposes.

I can take a picture of you on the street and use it for any editorial
purpose. (Subject to not defaming you in some way.) But if I want to use that
picture in an ad, I'd better have a model release.

------
aidenn0
Photographs are protected not because of the artistic choices per-se (since
there are artistic choices e.g. of a model posing as well) but because it is
in a fixed form.

A live performance is not copyrightable, but a video recording of a live
performance is. Even if there was no significant artistic choice in the setup:
for example, if you setup a camera on a tripod so that the entire stage is in
view and record it, you've got something copyrightable.

~~~
juiceandjuice
It should be noted that a performance can infringe on copyrights though. If
you cover a song, even in a much different way at _any_ venue that charges a
cover, that venue or the artist is obligated to pay royalties. Not
unsurprisingly, many low-budget all-ages venues have been hit hard by lawyers
from ASCAP for amounts that would put them out of business. I know a few
venues I went to as a teenager had a very, very strict "no covers" policy, as
ASCAP went so far as to hire people to visit the 100 person venue and listen
for cover songs, and then send a bill for the annual license to the venue if
they heard them. I think the annual license was somewhere on the order of 5-6k
or for a venue of that size.

~~~
kragen
"Charging a cover" is not relevant to determining whether the performance is a
"public performance" for copyright purposes.

~~~
juiceandjuice
No, but the amount of royalties you pay is somewhat dependent on it.

------
DannoHung
I wish that there was a place where, as an experiment, intellectual property
was entirely disallowed. No trademarks, no patents, no copyrights, no trade
secrets, nothin'. Just to see what happened.

~~~
stonemetal
That is easy just look at China. Little original content worth anything and a
huge black market, though I guess in this case it would be a regular market.
Everything would be driven to the cost of reproduction pretty quickly.

~~~
danking00
This isn't a fair comparison. The cultures of the United States and the PRC
are quite different on many levels. Copyright law is one of many variables.
Furthermore, there actually are some good mainland musical acts. I'd like a
more detailed analysis of the volume of original content before I passed it
off as worthless.

~~~
stonemetal
PRC invented the free to play video game model because they learned early how
worthless it was to actually ask their fellow citizens to pay for content.
_good mainland musical acts_ Good or not they aren't making money in a way
that scales.

edit: Worth in terms of getting paid not artistic worth.

------
zwieback
From a photography point of view I can see both sides of the argument, even
though the article says it's not just a pixelation filter to me it's not
modified enough to see any artistic effort. On the other hand, I don't really
see the damage done to the photographer so many years after taking the
picture.

However, my first thought was "that's the Kind of Blue cover" not "that's the
famous photo of Miles Davis". Kind of Blue is one of the greatest records of
all times so if anyone should get compensated it's Columbia or Miles' estate.
I just checked my vinyl version of the record and the photographer isn't even
mentioned.

No doubt it's a great photo but without Miles it would be just a photo of a
guy with a trumpet and none of this would have happened.

------
dhughes
I wonder what Andy Warhol would say about this situation, half his stuff was
"theft".

~~~
pyre
That was my thought too. Especially to the "it's theft if you can recognize
the original" argument. Did Andy 'steal' the Campbell's soup can? You can
obviously recognize it in his art, right? Someone should sue his estate!

------
guelo
This is a good post that is maybe significant morally but probably irrelevant
within the law.

------
regularfry
I hope everyone on all sides can recognise how absurd the "it's theft if you
can recognise the original" argument is. For starters, photographers have a
long tradition of claiming copyright in reference photos of fine art, where
the whole point is to create an image which is as alike the original as
possible.

~~~
regularfry
Just replying to myself to clarify, here: the situation seems to be different
in the US and in the UK. In the US, there is explicitly _no_ copyright in a
mechanical reproduction of an original artwork. It would appear that there is
in the UK.

------
aptsurdist
Some alternative album covers that are hopefully a show of support for Baio.
Copyrights: kind of screwed.
[http://aptsurdist.wordpress.com/2011/06/23/a-story-by-
waxy-o...](http://aptsurdist.wordpress.com/2011/06/23/a-story-by-waxy-org-
kind-of-screwed/)

------
virtualritz
I wrote a similar essay a while back: [http://www.virtualritz.com/archive/on-
plagiarism-creativity-...](http://www.virtualritz.com/archive/on-plagiarism-
creativity-in-the-digital-age/)

------
ahoyhere
If you ask me, this is a pretty open & shut case: he copied the photograph
exactly, as much as exactitude was allowed for the medium. Baio brought barely
anything new to the table at all. A tie pattern? That doesn't seem like enough
to me to make it a true derivative work, and moreover, it was for a commercial
purpose.

It is telling that Baio got permission for the music but not for the album
cover.

------
georgieporgie
Meh. IMO the 'pixelated' 'art' isn't nearly pixelated enough, and not unique
enough to qualify as art. Arguments based upon particularly bad selections of
photoshop filters are not sufficient. The photo in question was beautifully
captured, and the flippant way it's being treated is rather sad.

~~~
FlemishBeeCycle
"Uniqueness" isn't a qualification for determining whether something is "art".
Most art is not unique, and certainly not most photographs.

Calling the pixelated version a "flippant" capturing is disingenuous, as it
seems to be a reflection of your (apparent) dislike of pixel art rather than
the artist's intentions.

~~~
georgieporgie
Uniqueness is a qualification of artiness as far as I'm concerned. Merely
reproducing something is not art, it's direct reproduction. Introducing unique
style would be art. This slight pixelation is insufficient to qualify as such.

I never called the pixelated version flippant. Rather, I called the treatment
of the _original_ flippant. Also, don't project a dislike of pixel art onto
me.

~~~
FlemishBeeCycle
> Merely reproducing something is not art, it's direct reproduction.
> Introducing unique style would be art.

One could then argue that photographs are merely reproduction of reality, and
therefore not art. I fail to see why you think photographs introduce unique
style but pixel art does not.

> The photo in question was beautifully captured, and the flippant way it's
> being treated is rather sad.

I apologize for suggesting that you dislike pixel art, but that's how I this
sentence reads to me.

~~~
georgieporgie
_One could then argue that photographs are merely reproduction of reality, and
therefore not art. I fail to see why you think photographs introduce unique
style but pixel art does not._

Because that photography does not merely reproduce reality. The camera, lens,
film type, lighting, everything produced an entirely unique image[1].
Furthermore, if you were sitting there, observing his playing, you would _not_
have seen what came out in that photograph. That's what makes photography
something other than mere reproduction. That's where the art comes from.

Regarding pixel art, I don't really consider this piece to even _be_ pixel
art. It's just a somewhat blocky rendition of a photograph. Great pixel art is
more akin to Picasso's deconstruction of a bull:

[http://www.artyfactory.com/art_appreciation/animals_in_art/p...](http://www.artyfactory.com/art_appreciation/animals_in_art/pablo_picasso/pablo_picasso.htm)

Great pixel art deconstructs an image into the minimal set of elements
necessary to convey the original idea. The 'pixel art' in question really does
just looks like a few photoshop filters applied to a very well-known
photograph. Or a bad resizing of a thumbnail.

[1] I get the impression that the "photography is reproduction" crowd don't
understand technical aspects of photography, like lens selection, aperture,
dynamic range, the effect that film selection makes, etc. Yes, a midday, f/16
snapshot of "The Bean" may not entail meaningful artistic qualities, but that
sort of distinction tends to be along the fuzzy line we draw between
'snapshots' and 'photography'.

------
uriel
The absurdity of so called "intellectual property" becomes ever more patent.

------
rorrr
Except Miles Davis allowed himself to be photographed (or "copied"), he even
paid the photographer to use the photo on the cover.

Nobody allowed Baio to "copy" that photo.

I'm pretty sure Baio will lose, deservingly so.

------
micks56
Hypothetical: Baio downloads the latest Linux kernel. He changes all variable
and function names to words of his choosing. Baio now says that he has the
right to distribute BaioNix code free from GPL copyright restrictions and does
so. The Free Software Foundation sues Baio alleging copyright infringement.

Who wins and why? How is this different from or the same as Maisel v. Baio?

~~~
ajays
The problem with hypotheticals is that there's no end to them. For every
hypothetical you can come up with to show your point, I can come up with
another to show mine.

Please, just use some common sense: BAIO WAS NOT PUBLISHING THE PHOTOGRAPH! He
was publishing the _MUSIC_ ; the photograph was just incidental, to show (at a
glance) the relationship between the original music and the remixed Bloop
music. Do you __REALLY __think that people bought the album because of the
pixellated artwork? It had absolutely _NO_ impact on the sales. I've bought
many a record (and CD) in my lifetime, and I don't recall ever buying a single
one because of the cover.

I am a hardcore supporter of the rights of the individual artists and
musicians, and even I think Maisel was dead wrong.

~~~
antiterra
Insulting everyone by implying they haven't used common sense simply because
they don't agree with you is incredibly fatuous. Chill with the righteous HEY
YOU GUYS IF YOU JUST SAW IT MY WAY caps and italics; most of us aren't
particularly dumb here.

The pixel art was definitely published by any useful meaning of the word
publish, 200 copies of the liner version. Also, it was the background of the
site, clearly used as promotion.

Let's say everyone accepts your argument that you can only violate artist
rights if you gain a profit directly driven by the unauthorized use. It'd be
perfectly fine to use a struggling unsigned band's best song to sell
Volkswagens, since no one would buy a car because of music in an ad.

Of course, the unsigned band was just about to license their song to sell cat
food and pay the rent, but now the cat food manufacturer doesn't want the same
song that's in that damn Volkswagen commercial. Oops! Shoulda moved faster,
indie band!

If you think that an artist or a musician should have no control over where
their work is reproduced or published as long as it can be argued that it
wasn't the main draw of any profit, you're not a hardcore supporter of the
rights of individual artists and musicians.

I wasn't around for any negotiations Maisel's or his attorney had with Baio,
but it does see like Maisel was a bit of a jerk about this. A jerk solidly in
his rights, however.

