
Kind of Screwed (2011) - brunoc
https://waxy.org/2011/06/kind_of_screwed/
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ericdykstra
Fair Use is not a right; it's an affirmative defense
([https://en.wikipedia.org/wiki/Affirmative_defense](https://en.wikipedia.org/wiki/Affirmative_defense))
that needs to be used in court.

Here's a recent (long) video on fair use that I enjoyed, and might be
interesting for some of you here who are interested in this sort of thing:
[https://www.youtube.com/watch?v=SyucXC6pWug](https://www.youtube.com/watch?v=SyucXC6pWug)

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jhbadger
Not that I agree with lawyers suing over this, but one problem is that the
pixel-art nature of the Miles Davis cover is very subtle rather than obvious
chunky pixels as is typically done. At one level I applaud that as
historically accurate; graphics even in the 1980s weren't as awful as a lot of
pixelart implies, but on the other hand I can understand the argument that the
pixel art and the original were too close.

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martin__
It would be interesting to hear why he paid royalties to get a license for the
songs but not for the cover art.

Hiring artists to create retro versions of the music and hiring an artist to
create a retro version of the album cover seem like pretty analogous
situations.

~~~
skywhopper
Can't speak for him myself, but there are clear and well-established rules and
the songwriting industry has a well-defined and straightforward process for
paying royalties for publishing cover versions of songs. And there's no
question either legally or ethically whether publishing a cover version of a
song without paying a license fee is fair use of the songwriting IP.

There's no similar existing framework or precedent for photographs, and the
rights involved are much less clear. There's plenty of evidence of other
similarly transformative artwork based on photographs (described in the
article) is considered fair use in the artistic community. I find most
convincing the fact that the photograph is primarily documentation of a
factual situation (Miles Davis playing trumpet), something which many other
people saw, and which in and of itself is not copyrightable. Whereas the
songwriting involved in creating the music for the album is entirely creative
and not documentary in the slightest.

I think there are plenty of other good arguments about why his use of the
photograph was Fair Use in the article.

~~~
martin__
Thanks for that insight.

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mirimir
FYI: [https://observer.com/2011/06/andy-baio-jay-maisel-kind-of-
bl...](https://observer.com/2011/06/andy-baio-jay-maisel-kind-of-bloop-
lawsuit-sue-2011-06-24/)

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siruncledrew
> "It breaks my heart that a project I did for fun, on the side, and out of
> pure love and dedication to the source material ended up costing me so much
> — emotionally and financially."

It seems like he just overlooked the cover art piece. That sucks how much
damage to a project an unmalicious seemingly small mistake can make on the
legal side. In that regard, it's valuable to have access to lawyers and legal
resources just to avoid all the BS that comes along with lawsuits and
legalese. It's not just a matter of being intelligent or capable, but also
able to jump through all the hoops the right way in the legal system, which
puts most non-lawyers at a disadvantage.

> "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."

As can be popularly seen vis-a-vis DCMA takedown requests, the trivial-ness of
of sending a C&D or demand letter out to virtually anyone makes this process a
money-making machine for law firms. It's a win-win for them. You settle and
they make a profit, or you draw out a legal battle at a higher cost and they
make a bigger profit. Honestly, it's a tarnish on our legal system that it so
often rewards those with bigger wallets.

Not all lawyers are bad, and there are times where the 'little guy' may be
thankful IP law exists, but it's when someone like this gets screwed that the
legal system seems unfair. It's one thing to speak softly and carry a big
stick, and another to pick a fight for lunch money.

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mirimir
If he'd created an anonymous persona for his pixel artwork, Maisel would have
been left pounding sand. So if there's no reason to link stuff to your
meatspace identity, why risk it?

~~~
shrimp_emoji
This. But in a softcore version of the same way that you shouldn't be using
your real name while advocating for gay rights in Saudi Arabia: it's a
solution eliding a larger problem.

~~~
mirimir
Back in the day, when I was discovering Usenet, it was common advice. But of
course, tools for ~anonymity were primitive then. No Tor. No VPNs. Remailers
were about it.

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stuntkite
It sucks that this happened and I'm glad he found a tolerable payout and
resolved the issue with the owner of the photograph.

All that said, this chiptune record is a beautiful homage to the source
material. I highly recommend anyone that's interested to find it and give it a
listen.

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michaelmrose
So where is the list of people who give money to Jay Maisel so I can opt not
to do business with them anymore? Do you really change anyone's opinion on
most issues other than giving a hint which behaviors are unprofitable because
they piss people off?

How about a ublock origin filter that auto removes anything created by the
artist? Obviously no content filter belongs in default but it could be
offered.

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vortico
That's a waste of time. It won't affect the artist in the slightest.

~~~
rootusrootus
And the artist is so old he's unlikely to live much longer, he's probably
years past the point where he cares. He probably doesn't even know how to use
/ care about the Internet.

