

Fair use isn’t much good if you can’t afford it - nextparadigms
http://gigaom.com/2011/06/24/fair-use-isnt-much-good-if-you-cant-afford-it/

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hxa7241
People are disputing about whether the pixelisation work is transformative
enough.

Well, this is absolutely hilarious really -- I mean, hold on, what is the
_original_ work we are talking about here?

Photography.

You know, where you put some light sensors in front of something you did not
create yourself and pretty much just collect the photons that bounce off it.

~~~
tsuraan
I don't know why the above post is getting down-modded. The point is
definitely a good one, even if it was stated flippantly. As has been stated in
previous threads on this subject, the image captures the creative work of the
creator of the horn, the creator of the suit, etc. The photo is itself a
mechanical transcription of a handful of other people's creative works. For
the photographer to insist that his arrangement of other people's creative
works is original, while somebody else's re-interpretation of the photo is
not, is just wrong.

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micks56
I am a lawyer, and have studied copyright law, and in my opinion Baio's work
is not even close to transformative.

Or course this is a matter of interpretation and we are deciding on degrees,
but here is an example of what transformative is:

The case that Baio is relying on is Blanch v. Koons. Here is the original
work:
[http://newsgrist.typepad.com/underbelly/images/silksandals.j...](http://newsgrist.typepad.com/underbelly/images/silksandals.jpg)

Here is the work of the subsequent artist who was found to be
"transformative":
[http://newsgrist.typepad.com/underbelly/images/koonsniagara_...](http://newsgrist.typepad.com/underbelly/images/koonsniagara_1.jpg)

Can we agree that Baio's work doesn't arise to the level of transformativeness
that the Koons work did?

~~~
quadhome
Is this legal advice?

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milkshakes
Oh this is just too cute.

Check out the photo used on the Jay Maisel facebook page:
<http://www.facebook.com/pages/Jay-Maisel/132844546752374>

The photo facebook chose for his automatically generated 'community profile'
just so happens to be a low resolution side by side of the two images in
question, with no caption explaining that they're in fact different pictures.

So now Maisel has accomplished exactly the opposite of what he intended to. By
suing Baio, he brought prominence to what would have otherwise been a very low
distribution album, and now his facebook photo is the very image he was trying
to bury.

~~~
zach
It's from the Jay Maisel Wikipedia article, which is a lot more notable than
the Facebook page for him.

It's there because it was uploaded from Andy Baio's article and described as
his own CC-licensed work despite his assertion that it was fair use of
Maisel's copyrighted image. I wouldn't count on it being there for too long
given the level of scrutiny Wikipedia images endure.

Where do you get this impression Jay Maisel is trying to suppress the album?
He settled for a substantial amount of money and got the image pulled, so he
has no reason to be unhappy at this point.

Buying the album is support for Andy and this project, not a way to frustrate
Maisel.

~~~
milkshakes
What? I never said he was trying to suppress the album. I was just talking
about the picture.

~~~
zach
Okay, I get it now -- I didn't follow your argument the first time I read it.
Sorry about that.

In any case, the image is gone from both places now.

------
dstein
The speed at which Twitter is amplifying and targeting public discontent is
getting a little scary. It's becoming the digital equivalent of public
stoning.

~~~
alexqgb
That's a fairly good sign that the legal system has been co-opted to the point
where reasonable settlements are no longer possible.

In this case, it's worth noting that the troll (who is very VERY rich) was,
himself, making absurd threats of ruinous financial violence. Indeed, that's
what has infuriated so many people. The gag-order that Maisel tried (and
failed) to attach to the settlement only underscored (a) his odious personal
nature and (b) the sense that, shrill arguments aside, he was knowingly in the
wrong. That is to say, nobody who wins a fair fight fairly feels any need to
hush up the details.

It's also worth noting that unlike, say, an actual witch-hunt, or a mob
interested in keeping a marginalized group on the outs, the most well-known
cases are focused - almost exclusively - on egregious bullies, this example
being a case-in-point. It's almost as though the body politic is developing an
autoimmune response after excessive exposure to a dangerous pathogen.

The core of the issue is that we have a system of "public" law that has been
transformed into a tool for private abuse by the rare few who can afford to
use it. As such, it is no longer available for more widespread and lower-stake
dispute resolution. This civic loss is considered "unacceptable collateral
damage" by those few who'd restrict use of the courts to their own enrichment.
The growing presence of justifiably angry mobs who are willing to target
bullies suggests that isn't the case.

A democracy is only as good as it's justice system. Ours, quite frankly, is a
mess. If the street is the only source of protection for the majority of
people, we've lurched a step closer to open class warfare, and that's a very
sorry state indeed.

------
mhb
Loser pays:

<http://reason.com/archives/1995/06/01/civil-suits>

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tzs
That doesn't look like fair use to me. He took an album cover, made a minor
transformation to it, and used the result as an album cover.

~~~
mccutchen
To me, it does look like fair use. But I'm not a lawyer. I found this argument
pretty compelling, though:

<http://mrgan.tumblr.com/post/6840184364/hand-pixelated>

 _"That cover is NOT the original photo, downsampled. It’s a hand-crafted,
precisely drawn interpretation of the source. Anyone who’s ever seriously put
pixels to screen will tell you that this is an actual artistic method, one
with its own challenges, tricks, and yes, an aesthetic."_

~~~
JonnieCache
That is the key point.

If painting a version of a photo in oils is allowed, then this is allowed.

~~~
glhaynes
_Is_ selling an oil painting of a copyrighted photo allowed?

~~~
starwed
Probably not.

[http://painting.about.com/cs/artistscopyright/f/copyrightfaq...](http://painting.about.com/cs/artistscopyright/f/copyrightfaq5.htm)

------
intellection
Fair use and open source isn't much good if you can't afford it.

Like free|open|fair offers exclude people with verifications (e.g. use Heroku
& modern db without bank/credit?: <http://devcenter.heroku.com/articles/no-
credit-card> \- No.).

~~~
sorbus
Get a prepaid card, use it.

~~~
intellection
I have. It does not work. :(

Heroku does not process prepaid/gift cards.

Common problem.

------
Vivtek
Good God, Maisel's house is incredible!

------
pilom
The original blog post came up yesterday and I held back, but now that it came
up again, I just don't see their defense. They sold a product with an
unauthorized image. The images are so similar that anyone would say "Why yes,
this was made off of that." If it is personal non-commercial use its no issue,
but its not!

~~~
masterzora
The argument is, as has been stated many times between the two posts "fair
use". The fact that it obviously came from a copyright image does not
disqualify it for fair use; it is required for fair use to even make sense.
Commercialness is also not a requirement for fair use.

The main argument, that would likely pass in court, is that this use can in no
way be mistaken for the original image, nor can it replace it or have any
effect on its market value. It's a bit more complicated than that, but that's
the gist.

~~~
glhaynes
Baio felt he needed to (and did) license the songs from Miles Davis's
publisher in order to distribute "low res" recreations of them. I guess I
don't understand why he didn't feel like he needed to license the cover image
in order to distribute a low res recreation of it.

~~~
masterzora
Section 115 of the Copyright Act of 1976 includes a specific provision
mandating a compulsory license for covers of songs.

------
noonespecial
We are rapidly approaching the point where all intellectual activity by men of
average means is likely infringement of some kind or another on corporate
"property". Only the rich can create. Right to read? Heh. Right to _think_.

Edit: Perhaps I should have said "Right to write." The return of read only
culture with an ugly vindictive vengeance. I just didn't like the homophone.
(Plus "write" didn't quite cover stupid patents, ridiculous trade marks, and
silly copyright claims all together.)

~~~
sliverstorm
That tin hat of yours comfortable?

Asserting that the government is going to make _thinking_ illegal makes
regular ol 2012 alarmists look good in comparison.

~~~
noonespecial
Not illegal. Infringement. As in you do your damndest to clear every right and
follow every legal precedent in making your neat little 8 bit music tribute
(that you had no intent to even profit from) and some rich asshole can call it
infringement anyway and steal just about everything you've got because you
can't afford a "defense".

The system has (d)evolved to _exclude_ you from participating in it completely
unless you're already a wealthy player.

And yeah, my hat is damn comfy. Its top of the line.

