

There’s No Such Thing as a Compulsory License for a Photo - mecredis
http://fredbenenson.com/blog/2011/06/28/theres-no-such-thing-as-compulsory-license-for-a-photo/

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reverend_gonzo
1\. Just because there is no license available doesn't mean you can just use
it anyways.

2\. He never asked for the license before using it. Only after he was sued did
he ask if he could have gotten a license.

3\. It was a commercial product.

4\. The "compulsory license" does not give rights to do whatever the person
wants with it. From the wikipedia page, it gives the right to rearrange the
work but not to change the melody or fundamental character of the work. I know
that the remix artists 2 Many DJs were not given permissions to create
versions of certain songs. So it is most definitely not cut and dry as this
claims it to be.

At the end of the day, he created a derivative work to be used in a commercial
product without, as a minimum, even asking for permission.

~~~
albedoa
_At the end of the day, he created a derivative work to be used in a
commercial product without, as a minimum, even asking for permission._

Asking for permission is absolutely not a minimum for fair use.

Of course, we'll never know if it constituted fair use because, at the end of
the day, he who wielded the larger stick forced the result that he wanted.

~~~
reverend_gonzo
Read: <http://www.law.cornell.edu/uscode/17/107.html>

This was neither criticism, comment, news reporting, teaching, scholarship, or
research.

Furthermore, it _was_ commercial use (regardless of whether the work created
from the photo was itself sold, it was part of a product that was sold).

Whether it is fair use or not, we don't know, but I'm not a lawyer, I'm going
to venture to say you're not a lawyer, he's not a lawyer, and he didn't
contact a lawyer before using it.

He had entirely what came to him ... even if it was a bit harsh.

~~~
ahlatimer
You could argue that CAMPBELL, AKA SKYYWALKER, ET AL. V. ACUFFROSE MUSIC, INC.
[1] wasn't a criticism, comment, news reporting, teaching, scholarship, or
research (the court ruled that it was a parody). In CAMPBELL V. ACUFFROSE, the
court also ruled that it being a commercial recording didn't stop it from
being covered under fair use. There was another case which slips my mind at
the moment that found similarly (that commercial use doesn't stop it from
being fair use).

IANAL, and I am not familiar with all of the little details that go into
determining whether something is fair use. From the reading of the applicable
laws and precedents and having an actual lawyer go through those with me (I
took a class last semester on IP law), however, I don't see anything that
would outright bar this from being fair use.

[1]:
[http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=searc...](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/510/569.html)

~~~
tzs
Parody comments on and criticizes the work that it parodies.

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blahedo
This is the money quote (at the end of the article, quoting Andy Baio):
_"Nobody should need a law degree to understand whether art is legal or not."_

------
bediger
From the article: "I doubt anyone would argue that song composition is a
lesser art or any less deserving of full royalties than other arts."

Note that this viewpoint isn't historical:
<http://law.bepress.com/villanovalwps/papers/art31/> Copyright wasn't
originally granted even to sheet music, if I read the paper correctly. In the
USA, musical recordings weren't covered by Federal copyright until 1972, but
rather were covered under _state_ copyright. Older music still is.

Copyright on music is indeed debateable, and has been as long as copyright has
existed as a legal concept.

~~~
mecredis
Good catch. I definitely meant it in the sense that I doubt anyone would
_currently_ argue such a thing.

But the same historical twist applies to photography, albeit a century earlier
-- whether copyright should be extened to photographs was a hotly debated
issue in the courts.

It wasn't until 1865 that copyright was extended to photos, almost 100 years
after copyright itself was instantiated.

More details: [http://www.copyrighthistory.org/cgi-
bin/kleioc/0010/exec/aus...](http://www.copyrighthistory.org/cgi-
bin/kleioc/0010/exec/ausgabe/%22f_1862%22)

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bugsy
The commentary I have read this last week on this case seems to all take one
side or the other and makes absolutist claims for either. There are certainly
many such cases in copyright law where things are obvious and the result of a
court case clear in advance to those knowledgable of copyright law. This is
not one of those cases, it is more subtle.

The work is derivative, but he claims it is not a copy that has been filtered
with an algorithm, he hired an artist to recreate it pixel by pixel by hand.
Thus it's like an impressionist painting of a realistic photo. A substantial
difference. Is it fair use? Fair use looks at many things not just one. Given
that it's transformative to comment on what is being done to the music as
well, and it's a non-commercial project (income went to pay costs and
remaining profit went to charitable something or another), it might be fair
use. Or it might not. This would have to be resolved in court because it's an
edge case. It's not cut and dried who would win this case.

