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Kind of Screwed (waxy.org)
611 points by joshuacc on June 23, 2011 | hide | past | favorite | 237 comments

The legal process will grind you in any serious dispute against a determined adversary.

Get a supremely optimal outcome and get the case dismissed right out the gate because it is legally defective even assuming all the facts alleged are true? Sticker price: $10K and up (more likely $25K to $50K to make it definitive after several opportunities to amend are given to the adversary).

Go through discovery to find out what witnesses will say on deposition, dig through all key documents, and then move for and get a summary judgment before trial by which a case is tossed on grounds that the law allows only one result based on material facts that are undisputed bearing on the legal point? Sticker price: $100K and up, with a year or more of grief thrown in as a bonus.

Go through trial and get vindicated by a judge or jury based on a complete presentation of evidence? Sticker price: $250K and up, after a year or two (or more) of wrangling.

And don't forget the appeals.

Most cases never get to trial and cost is a major factor prompting litigants to settle even though they are not particularly happy with an outcome. Charles Dickens, though he exaggerated for dramatic effect, got the spirit of this right in Bleak House (http://en.wikipedia.org/wiki/Jarndyce_and_Jarndyce), and little has changed since.

This, by the way, doesn't mean that you can't defend against cease-and-desist demands. Costs cut both ways. But it is sad how many times parties who are right nonetheless must fold because the costs of engaging (monetary and otherwise) are just not worth it.

this really makes me sick. in so many ways i see the system as a giant legacy piece of crap with tons of bugs that certain assholes have latched onto as "features"...

This would be the ultimate way to kill UGC sites. Sue them into bankruptcy. Just keep losing, but exhausting their cash. This is why the US needs a loser-pay model like the UK.

It's not quite that simple - the loser-pay model would mean that no one could sue major companies because they couldn't afford to pay their super-premium lawyers when they lose.

It's cliché, but totally on point:

Only sue if you have nothing to lose, or your opponents are ridiculously rich. (preferably: both).

If you have nothing to lose, you probably can't afford lawyers in the first place.

Not quite your point, I know, but it seems to apply here.

If you're going after a target with deep pockets you will have no problems with lawyers who will work for a share of the settlement.

Edit: changed my wording to be more accurate.

I think you mean they'll work for a piece of the reward, not for free.

Yup, that's what I meant.

In Australia, there's a deterrent in civil suits that a losing plaintiff pays costs for a successful defendant. Does the US have that at all?

I'm not in any way experienced in law, but it seems like that would help reduce the number of fishing expeditions and barratry.

This is spread all over Europe as well since it comes from Roman Law.

In this case, Australia is a common law country. Its legal heritage is English, not civil/Roman.

Same here in Brazil

While it would reduce "fishing expeditions", it would make me feel less secure in the legal system, because I might be afraid of the financial risk to sue someone.

It's not guaranteed, but it's common for the judge to order costs to be paid by the losing party. I'm really not familiar wtih the details of the system, sorry.

Unfortunately, an opportunity to better the system was lost by settling out of court.

Jay Meisel : you suck. For doing this.

(...too bad HN pages rank low on Google).

Other countries mitigate this problem by making costs awards against losing plaintiffs automatic.

But that tends to discourage people without substantial wealth from pursuing cases.

The law is not perfect and never will be.

>But that tends to discourage people without substantial wealth from pursuing cases.

Really? It seems that if you don't have much money, you don't have anything to lose. You know, like the average American buying a house during the bubble; if values go up, they make money. If values go down? bankruptcy.

My cynical take on the law: the purpose of the law is to settle disputes nonviolently, not necessarily justly.

The only consolation is things would be even more expensive if it was a "Gangs of New York"-style world today.

True; a similar one is to settle disputes predictably, so that lawyers can settle a dispute without actually going to court - again, not necessarily justly.

There's an interesting "law and economics" justification, which is that the party who in the best position to have prevented the problem should be responsible for the damages caused. The damages become an incentive.

It'd be great if trial by combat was an option for this sort of thing. I'd like nothing more than to hack the arms off of people who raise these lawsuits.

See the following paper for an economic analysis of trial by battle: http://www.law.yale.edu/documents/pdf/Intellectual_Life/LEO....

I particularly liked this quote: "[I]t's reasonable to expect to find a large number of retained legal representatives under a legal system in which people feel that their property rights are constantly threatened by rent-seeking litigiousness or in which rampant rent-seeking opportunity gives them an incentive to behave litigiously themselves. The rarity of retained champions in medieval England therefore suggests that rent seeking under trial by battle wasn't rampant."

You may find this amusing:

In December 2002, a 60-year-old mechanic named Leon Humphreys was fined £25 for failing to notify the Driver and Vehicle Licensing Agency that he had removed his Suzuki motorcycle from road usage. He refused to pay and claimed that he had the right, under medieval law, to choose a trial by combat with a "champion" nominated by the DVLA. This claim was denied by a court of magistrates in Bury St Edmunds, and he was further fined.



The United States inherited its common law traditions from the English system after it declared its independence in 1776, with precedents before that date entrenched in the American jurisprudence, as the Rule in Shelley's Case in property law has. The British, however, did not abolish wager by battle until 1819 after Ashford v Thornton, as noted above, and since independence no court in the United States has addressed the issue of whether this remains a valid alternative to a civil action under the law.


  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. "With this in mind, I am certain you can understand
  that he felt violated to find his image of Miles Davis,
  one of his most well-known and highly-regarded images, had
  been pixellated , without his permission, and used in a
  number of forms including on several websites accessible
  around the world."
The pixelated version was incredibly appropriate for a chiptune tribute and anyone that claims to care about art should applaud such a use of an imitation, mockup or inspired work. I don't like artists who think their work is so special that any change ruins it. 99.999% of people don't care about his original 'masterpiece' in any way, but a few more may care now that there was a different rendition of it. Artists should recognize there is a bit of luck involved in them and their art becoming famous. For every well known great artist, there are ten who were better, but simply didn't become known.

And yet it should be the artist's choice on how THEIR work is used, regardless of how you, or 99.999% of the people feel.

Personally, I find the overly-developed sense of self-entitlement to be way more unlikable than an artist's overly inflated ego.

I wonder how the photographer would feel if the company that manufactured the trumpet played by Miles Davis had claimed that his photograph violated the copyright of their "sculpture" and the tailor Miles got his suit from also protested. Of all art forms, photography has some of the least claim on being an entirely original creation of the artist.

You'd be surprised how often stuff like that happens. It's not uncommon for "artists" to sue for their works being caught on film. And in many cases this art is on public display, for example, in a park.

KenJackson is very right. The tattoo artist that inked Mike Tyson's face, is suing "The Hangover 2" for Stan's facial tattoo. I know a post-production house employee that is tasked with changing Stan's facial tattoo frame by frame so that the artist cannot claim infringement on the DVD sales. Very sad how easy it is to make a fortune off the legal system.

That's disgusting. Only in America.

And in general, those artists are laughed right out of court, as they should be.

A photo of a sculpture is in no way a substitute for the sculpture.

The pixel art is in no way a substitute for the original photo, either.

> those artists are laughed right out of court

Not at all. ALL architectural works constructed after 1990 are now copyrighted in the U.S., so any photography of any vaguely new buildings/structures is an infringement. (Sculptures have long been protected.) Give it another 50 years and it won't be possible to legally take a photograph outdoors in any location where humans have built anything.

Since I'm certain people will downvote or post snarky "CITATION???" comments without googling, here's your preemptive cite:


> so any photography of any vaguely new buildings/structures is an infringement. (Sculptures have long been protected.) Give it another 50 years and it won't be possible to legally take a photograph outdoors in any location where humans have built anything.

Total misunderstanding of how copyright in architecture works. If you build a new building, I can't copy your design and build an identical building across the street. But I can take all the photos I want of it. From _your own link_:

"First, when a building is ordinarily visible from a public place, its protection as an 'architectural work' does not include the right to prevent the making, distributing, or public display of pictures, photographs, or other pictorial representations of the work. The architect will not be able to prevent people from taking photographs or otherwise producing pictorial representations of the building."

mikey_p said, "I have personally seen security at the Rock and Roll hall of fame threaten a photographer with a SLR and tripod that was standing on public property near the building."

I've heard of lots of times where photographers were threatened by security, even police. I've also heard of many cases where they were able to show that the photography WAS legal, and were left alone. Just because police/security says something is illegal, it doesn't make it wrong. That's why we have courts, although unfortunately going to court can be risky and expensive, even when you're right.

It's actually incredibly common to extend -copyright- CORRECTION: trademark, status to include pictures of architectural works. For example, just google around to find examples such as the Sydney Opera House, Seattle Space Needle, or Rock and Roll Hall of Fame. All of these have been upheld even, and I have personally seen security at the Rock and Roll hall of fame threaten a photographer with a SLR and tripod that was standing on public property near the building.

And yes, it's utterly disgusting.

It's actually incredibly common to extend trademark status to include pictures of architectural works. For example, just google around to find examples such as ... Rock and Roll Hall of Fame.

I don't know about the other examples, but the Rock Hall lost that battle:


As it happens, I live nearby, and I've used my big black camera and tripod on the premises many times without incident. The security guards have always been friendly to me.

I think the overall trend of wealthy organizations and individuals attempting to broaden their intellectual property holdings this way is a symptom of the way high litigation costs result in asymmetric access to the legal system. The Rock Hall (or Jay Maisel) can afford to litigate forever. I'd be utterly ruined by even a single lawsuit.

Cops often assert various acts of photography are illegal. In most cases, they’re wrong. PINAC (Photography is not a crime): http://www.pixiq.com/contributors/248

I have no way of knowing if you've ever dabbed in photography, but I have; taking a good photo is alarmingly difficult.

Difficulty is not originality.

Originality though is difficult.

It is an annoyingly 20th-Century notion that one's original work must be untouchable and sacrosanct.

It is an annoyingly 21st-Century notion that one's original work must be free-for-all and a commodity.

I was thinking about this. A 'famous' work nowadays is something that is extensively copied, remixed, rebuilt and virally spread. Many previous century minds think they have to gain something by their re-crafted work being in the spotlight again. They should be satisfied with a citation and happy they were remembered.

I believe today's works are more complacent about this. The artists understand that their work is supposed to pay them one time, that is, they receive their payment as agreed before starting it. If their work suddenly goes far beyond its initial goal, they will get bonuses of fame but rarely direct payments of their work showing up everywhere. Not-artist people usually don't even care.

So what is your timeless solution?

Agh, this is something I absolutely hate about Hacker News.

mortenjorck made an incredibly insightful comment.. Why do you feel the need to pull him into a debate that has no possibility of ever coming to any kind of resolution.

Not every comment needs a fucking counterpoint or a "citation needed" or a "can you give me an example?" or a "how would you solve the problem?"

mortenjorck made a good point, but I think makmanalp asked a perfectly valid and pertinent question. Realizing that both the old and the new way are imperfect is just the first step in the process. Discussing and deciding on what would be a better way is the meat of the discussion, and what I come to Hacker News to read.

Anyone can make an observation that things are broken (though perhaps not state it as succinctly), but coming up with a solution is both more interesting and challenging. If HN never moved into that stage, every story could be summed up in one or two comments, and it would basically just be a link aggregater.

I don't think you should have to have a solution just to make an observation. Further, no solution on this topic is going to be timeless, so in fact the question was rather pointless.

I agree that you shouldn't have to have a solution to make an observation. I didn't mean to denigrate his comment, although it does sound like it on rereading. A good succinct summation of the problem does wonders to steer the conversation in the right way.

I disagree that the question (and thus, the discussion) are pointless though. I find both participating in and reading through these discussions valuable, as they make me analyze my viewpoints, as well as introducing me to opposing viewpoints I hadn't necessarily considered. For example, the poster who felt "an artist has the right to choose how their work is used" in this thread made me consider how I felt about that. I don't think I'd like my work to be turned into something I hate, but I'm not sure if that means I have a moral right to stop it.

Obviously, this discussion comes down to personal opinion on an artist's rights, but I can't say I've really closely examined what I think. We may not all agree, but some of us can come to a better understanding.

I agree. I think makmanalp's comment comes off as somewhat brusque, but it's a perfectly valid topic for debate.

I don't have a solution, by the way.

Personally, I find your attitude much more frustrating than the phenomenon you rail against. If a comment is particularly insightful, then asking for clarification or expansion can lead to further interesting discussion. While it's nice to nod appreciatively at my screen when I read a good comment, it's much better to see it followed by a leading question and strong discussion.

1) Proper citation: the person who creates a derivative work cites the source properly.

2) Free as in beer

3) A social structure where it is about ego/glory rather than money

Btw ... this is loosely how academia works. Most scientists are in it for the thrill of discovery and glory (we know we can get paid better elsewhere). We kill ourselves trying to get papers at the top conferences - because that gives us and our work the highest visibility. We mostly give away our knowledge for free (this is contentious because of high undergrad tuition and patent happy universities - that said, this doesn't directly go into the scientists pockets).

An excellent related quote (I think from Liar's Poker): Money doesn't matter. That's just how we keep score.

Academia is essentially the same. Replace money with # of citations, journal prestige, h-index, etc.

It'd be funny if science worked the way Maisel does.

"What? You repeated my groundbreaking study!? I'll sue for crushing damages! Clearly you've damaged my reputation!"

------ heh:

Plaintiff Lawyers: "Right, we're suing you for personal damages of $150,000 per article printed!" Defence Lawyers: "May I remind you that our client is a scientist?" Plaintiff Lawyers: "Right, we're suing you for personal damages of $150 total and perhaps some cheap coffee"

The court figured that out. $32,500.

Not really. Settlements aren't really decisions of the court.

Settlements may not technically be in court, but they are the result of the court existing. (my comment about the $32,500 should have been attached to the comment above) Not sure how I clicked the wrong link.

> Settlements may not technically be in court, but they are the result of the court existing.

I want to begin by explicitly letting you know that this is not an attack on you, but rather a suggestion that is applicable to many, many HN members.

Being wrong is not a crime. If you happen to be wrong some time, it is better to admit your mistake than to try to twist your original words to be right from a certain point of view.

The need to always be right, to argue until some point of view can be reached where you are established as right, is just ridiculous and unbecoming. I struggle with this, too, because I'm far from perfect, but letting go of that "need" is a big step toward more productive conversation.

In this case, the settlement may be the result of the court existing, but that does not, in any way, mean that the court figured it out.

Absolutely not. A well-known piece of art belongs to the public more than to the artist. Here are two quotes from famous creators illustrating that:

Le droit d'auteur, vraiment c'est pas possible. Un auteur n'a aucun droit. Je n'ai aucun droit. Je n'ai que des devoirs. Jean-Luc Godard.

(Copyright, really, that isn't possible. An author has no rights. I have no rights. I have only duties).

Le livre, comme livre, appartient à l'auteur, mais comme pensée, il appartient - le mot n'est pas trop vaste - au genre humain. Toutes les intelligences y ont droit. Si l'un des deux droits, le droit de l'écrivain et le droit de l'esprit humain, devait être sacrifié, ce serait, certes, le droit de l'écrivain, car l'intérêt public est notre préoccupation unique, et tous, je le déclare, doivent passer avant nous. Victor Hugo.

(The book as such, belongs to its author, but as a thought belongs - the word isn't too vast - to mankind. All intelligences have a right to it. If one of two rights, the writer's right and the human mind's right, should be sacrificed, it would surely be the writer's right, because public interest is our unique preoccupation, and all, I declare it, must pass before us).

> And yet it should be the artist's choice on how THEIR work is used, regardless of how you, or 99.999% of the people feel.

Why? You seem to think you have scored a point by using "should" and uppercasing THEIR.

I disagree that how THEIR work is used "should" be the artist's choice. The artist's choice is in whether to release the work, and then whether to use applicable copyright laws to control distribution of derivative works for the duration of copyright.

And yet it should be the artist's choice on how THEIR work is used...

The question, really, is "Is this pixel-art thing even the same picture, legally speaking?" And the answer is: "We'll never know, because a legal decision is too expensive for one of the parties to obtain."

And the intersection of these two viewpoints is where Fair Use doctrine comes in. I'm not even remotely a lawyer and this isn't my country's legal system anyway, but the case as to whether this was covered by fair use was felt to be arguable by both sides.

The real story here isn't 'unreasonable artist sued me' but 'lawsuits used as scare tactic'.

Was it really a scare tactic in this case, though? The copyright holder felt that his copyright had been infringed, so he sent a cease and desist, backed up with the threat of legal action. What should the copyright holder have done instead? Sent a polite note? Threaten violence? Like it or not the court is where Fair Use is decided. Just because the threat of a lawsuit is scary doesn't always mean it's being used as a scare tactic.

The real, real story here is, as the author asks, where do you draw the line? Personally I don't think the author had much of a leg to stand on given that the image was being used to sell an album and was easily recognizable as a simulacrum of the original work.

It wasn't a cease and desist--Andy had to pay Maisel $32k for him to go away. Perhaps a polite note or actual C&D would have been the way to go.

$32k is an awful lot of money to have handed over for something like this, on the scare of it being potentially a lot more. That's what I mean; on an arguable point, the cost of defending the lawsuit and facing costs - let alone the potential damages - meant that the smaller party simply rolled over. That's the scare tactic.

Yes, but that's not specific to copyright law, it's a problem with tort law in the US in general (although, admittedly, its abuse is pretty prevalent when it comes to copyrights).

For the record: the pixelated image was hand drawn by a pixel art artist. But actually, I don't care about that: lets assume it was a computer-pixelated version that anyone could make with Photoshop. Then Maisel is still wrong.

This tiny project doesn't threaten his firmly established reputation or commercial interests in any way. The audience is severely limited and the pixelated image has only appeared on the cover of an even smaller number of physical CD's and otherwise was simply displayed on the website as the visual representation of the music. For which it was incredibly appropriate. It wasn't used to 'sell the music': you couldn't even buy that pixelated image.

Maisel should allow a thousand of these tiny suns to bloom, even if that requires a thousand of his photographs to be pixelated and use in tiny projects that make a few people happy. All analogies are off, specifically because Maisel is in a supreme position to ignore all commercial and legal interests. That makes his legal action petty and unartistic and makes the world a worse place.

What should the copyright holder have done instead? Sent a polite note?

Yes. What's wrong with starting off with a polite note? Are you really backing the plaintiff's starting demands for $150,000 per use as a reasonable request?

>And yet it should be the artist's choice on how THEIR work is used, regardless of how you, or 99.999% of the people feel.

So... down with fair use?

Everything created is copying something else in same way or another. An artist that expects complete control over their work is more than just delusional in their expectations, but also ignoring how their creation is riffing on previous works by other people.

And yet it should be the artist's choice on how THEIR work is used, regardless of how you, or 99.999% of the people feel.

For the original photograph? Yes, of course.

For a derivative work, which the pixel-art reproduction clearly is in my mind? Of course not.

As art, it doesn't seem particularly interesting or clever or striking. Which is really too bad, because Davis of all people might have appreciated a roughened, technially imperfected image that somehow did something new.

But this looks to me like a very low-resolution duplicate. Only on inspection do I see elements that say "pixel", and these aren't particularly important or interesting. All the examples cited by the OP are considerably more different from the original than the image in question.

To get more clearly into the category of "fair use", I would think the art would need more significant differentiation. To an unexpert eye, these might be things like: - Variation of the palette into something typical of an NES game - Revisit the perspective to make it more two-dimensional, as an older video game would (the image clearly depicts Davis at an angle in a way we wouldn't have expected in an 80s game console) - More exaggerated usage of "pixelized" elements - Introduction of elements / themes /motifs from other pixel art pieces - Turn the image upside down, put curious, "where the hell am I?" look on Davis' face - Pixelized chipmunk - Pixelized Thelonious Monk

If the idea here wasn't to invest a lot of time into the image itself, and have some that plays the marketing role of 1950s cover art, then do something evocative but more clearly distinct.

Finding the line between "derivative" and "creative" is not a computable problem. But it gets a lot easier with the quality of the art. But it seems to me the photographer has a point. Especially when I consider that the image real does look like a low-res JPEG -- if he tolerates that, the next question will be the difference between this and an actual low-res JPEG.

Now, could he have been nicer about it? I would certainly think it better to start with "hey knock it off". But maybe I don't everything that went before the settlement.

Do you code? How about you send me the source to your best known, commercial product, and then I'll reformat the source, call it a derivative work, and sell it. That's cool, right? Of course not.

I see this as being not that different.

Which really brings up the key to this, which is what is considered "derivative". Everyone has a different concept of it, I'm sure, and it's not cut and dried.

To me, simply taking a picture someone else took, and digitizing or pixellating it, is not something that I would consider "derivative". I liken it to sampling music to be used in a "derivative" work. In the vast majority of those cases, the samples have to pass through the proper licensing and be released for use before they are resold.

And while the guy might not have created the content of the picture, he spent the time and effort to actually go and take the picture. Doesn't matter if he spent a month setting up the content and lighting to get the perfect shot, or sat on his cel-phone camera and it took a great picture as a result of blind luck, it's his picture.

If he wants to sell that picture for profit, and has cleared the rights of the content of it, that is his prerogative.

I think that the pixellated image would require something similar to a mechanical license that you find in the music industry, where someone creates the song, but then gives the rights for another band to record and sell their version of it.

Do you code? How about you send me the source to your best known, commercial product, and then I'll reformat the source, call it a derivative work, and sell it. That's cool, right? Of course not

I see this as being not that different.

It's completely different. Look at clauses 1 & 4 of the Copyright Act as sited in the article. The spirit of this 'derivative work' concept rests on the contribution of the derivative work to the general state of the art (does it add anything?), and the effect on the existing works (does is take food out of the original artists's mouth?).

Taking source code and recompiling it and redistributing it without making any contribution yourself is completely outside the idea of a derivative work. Even modifying it in some significant way, if it deprives me of my livelihood, probably doesn't work.

Pixelating a Miles Davis picture is absolutely a derivative work, especially as an adjunct to an 8-bit rework of one of the man's albums. There's no substitutability at all between this pixelated version and the original picture - it would have exactly 0 (zero) effect on the demand or availability of the original photo of Davis.

To me, simply taking a picture someone else took, and digitizing or pixellating it, is not something that I would consider "derivative". I liken it to sampling music to be used in a "derivative" work. In the vast majority of those cases, the samples have to pass through the proper licensing and be released for use before they are resold.

Yes - and I'm against requiring licensing for music resampling as well. The test should be substitutability and contribution, not establishing arbitrary control over the way intellectual property is allowed to evolve and who is allowed to reshape it.

A more apt comparison:

Say you're a game programmer and you wrote an addictive platformer for the 486-era IBM PC. It's a game that brings warm nostalgia to the average 30-something gamer. It's the best game you ever wrote, but a lot of time has passed since then.

Some guy comes along and writes a remake for the ZX Spectrum 48k and releases it for a nominal charge. How do you feel? What can you do?

You know, in forty years, when my reputation is firmly established and your reformatting doesn't threaten my commercial interests in any way, I will send you my best code.

See my other comments for why these kinds of analogies are too far off to make a useful point.

And so this justifies starting out with a legal sledgehammer instead of a polite "You don't have the rights here, please stop" letter?

I ascribe to the notion known to a few other countries that an artistic work belongs to the culture that produced it, and not the individual artist.

The only thing the artist may be protected from is duplication for the mere purpose of profit, not further cultural benefit.

Thus everyone is free to make derivative works, so long as they're not so closely associated with the original that its considered mere duplication.

Duplication, if not for profit, can be allowed for individual consumers but not businesses.


I think writing off this admittedly socialistic view on artistic work as "self entitlement" is short sighted.

> And yet it should be the artist's choice on how THEIR work is used, regardless of how you, or 99.999% of the people feel.

If an artist makes a work of art and nobody ever pays any attention to it, is the work still valuable?

To a certain extent, the attention that people give to a work of art gives it value (in my opinion). People's attention is a limited resource, one that certain artists fail to duly acknowledge when they attempt tyrannical control over their works. Artists: if you want absolute control over your works, keep them to yourselves and never show them to anyone else, ever (please!). Otherwise acknowledge your debt to the (mostly-free) cultural environment(s) you drew inspiration from and to the public mindspace your works occupy. At least pay back our attention with your gratitude, instead of IP-thuggery.

And yet it should be the artist's choice on how THEIR work is used

Why? Seriously, I'm genuinely interested in why you believe this statement should be true. If this were actually the case, there would be no such thing as a fair use defense.

Should it? Why?

Because it's the product of his or her hard work? I really don't understand the question.

What are your thoughts on the question he asks at the bottom of the blog entry ("Where would you draw the line?")

Not me. In this case the inflated ego leading to unreasonable aggressiveness is far more distasteful than the relatively mild sense of self-entitlement.

The more derivative a work is, the less it belongs to the original artist. In this case, the work was derivative enough for there to be a legitimate legal case either way. It's easily understood as an honest mistake, though it clearly was a mistake not to check the art ahead of time. It's understandable for the artist to be upset. But it's conflict that reasonable, respectful human beings should be able to resolve without a full-blown lawsuit.

The vengeful attempt to inflict punitive damage on the guy who, at worst, made an honest mistake? That's worse, in my book.

It's not the photographer's work, really, since the pixelated version was hand made by a pixel artist, using the photo only as inspiration.

So what exactly entitles someone to exclusive control/ownership over a particular arrangement of bits, just because they happened to be the one to produce the first copy of that arrangement?

Copyright law. And in Europe at least a deeper moral right to be identified as the author of a work and to have a say in how it's used. For example, I would be very upset if my work was used in advertising, or a political campaign that I violently disagreed with. It's not a black and white issue and that's why this went to the lawsuit stage.

"bits" is a very disingenuous way to look at creative work. The end product is "just" 1s and 0s in the same sense a Porsche is "just" atoms.

So, if I took a picture with a magic camera, that "copied" a Porsche, and magically "pasted" another one in reality, I should have to pay for it again? I mean, this is already an issue with 3d printers and small items. It'll happen with larger ones soon enough.

I understand a little under a decade of copyright protection when you had to horse and buggy your manuscript to a printer and they shipped it by train and boat around the nation to salesmen who again went by train or carriage to sell it... But in the world of one-click publishing? A hundred years plus? Really?

The window of protection is now less a window, and more a gaping wound in the side of creativity, as seen here.

Even without the magic printer, you'd probably be stepping on a number of patents by reverse engineering a Porsche (not to mention copyright/trademark infringement for things like the emblem). You could still be found to be infringing upon patents if you were only using the duplicates for personal use (IANAL, though).

As far as the length of copyright (which, I agree, is currently too long), you can thank Disney for that.

This would be like making a Porsche out of Legos for an art project and then getting sued. No one is confusing one with the other.


The question is ill-posed. In Europe there is a legal concept of moral rights, which does not exist in the US.

It does, at least for visual artists: http://en.wikipedia.org/wiki/Visual_Artists_Rights_Act

The problem is that, thanks to Disney, copyrights last eleventy million years nowadays. Culture works by building on previous achievements, copyrights stop that. Ideally copyrights should be as short amount a time as possible while still giving an artist a chance to make a living.

Actually up to 120 years in the US.

Why would you think so?

Do you think Toyota should only permit particular uses of their vehicles? That Dell should only permit particular uses of their computers?


It should be the artist's choice on how their work is released, but beyond that, they can do nothing.

Once an artist has released their work, the details of how it is consumed, how it is interpreted, and how it is used will always be well beyond their control.

Much like a startup must pivot, so too must an artist live in the world within which they create their work.

don't feed something to the leviathan if you can't stand to see it get chewed up.

yes, it should be the artist's choice how their work is used. that's not the question. the question is when it stops being their work, and starts being the work of the artist influenced by it.

Agreed. But it's such a dick move. Instead of just saying, "hey, please don't do this," he hurts the guy.


A reputation for hurting someone for tens of thousands of dollars is like saying "hey, please don't do this" in advance to everyone who hears about it.

Maisel is in the comfortable position where he doesn't need to do that anymore and hasn't needed to for a long time. That is why this was wrong of him. He doesn't need to protect his reputation or commercial interests against some tiny project doing an 8-bit tribute to Miles Davis. He gains nothing: the net effect is that this guy, that tried to do something nice that made a few people happy, get slapped. Nothing else has come of this lawsuit.

People will continue to not fuck with him or his estate. You don't get rich by writing a lot of checks.

You mention luck plays a part. Having a recognizable image increases your odds. That's why people get sued for this kind of thing, because art has so much luck and every little reference or connection helps.

It's unfortunate the author didn't think the cover art would be a problem. It's a pretty iconic image, and the very fact that he really wanted to copy it because it would fit so well should have set off some alarms. It's like a brand name, it could be seen to increase the value of the product. (I don't even know if he sold Kind of Bloop or reaped any kind of financial reward, but sometimes even that's not important. If he didn't, then man does that penalty suck.)

> I don't even know if he sold Kind of Bloop or reaped any kind of financial reward, but sometimes even that's not important. If he didn't, then man does that penalty suck.

Did you not read the post? He explains this in the very first paragraph:

"Remember Kind of Bloop, the chiptune tribute to Miles Davis' Kind of Blue that I produced? 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."

I'm not familiar with the project.. did he go on to sell the actual album?

Yes, it's for sale right now. http://kindofbloop.com/

I did read the post. Your other repliers covered the qualifiers.

You are completely right, but for Maisel, this isn't a concern anymore and for any artist of moderate stature, it isn't a concern if some tiny project as this one uses an image. The overlap between audiences is vanishingly small.

This is a fundamental problem with the implementation of fair use in the US legal system. Fair use is a limitation of copyright (not a violation of copyright), and the law defines guidelines for establishing fair use, but it may cost you tens of thousands of dollars and a lot of heartache if the copyright holder disagrees with your interpretation of the guidelines, regardless of whether you are right or wrong.

Copyright in the US exists to promote the progress of science and the useful arts (US Constitution), not to protect the "purity" of an artist's work.

Parody is one well-recognized, legally protected form of fair use - and no doubt it would cause this photographer to feel "violated".

My GF is an artist so I am biased on the subject, but my take is that this is a direct copy for commercial purposes, not even as much originality as the Obama poster. My GF would certainly be pissed if one of her paintings were used in such a manner, particularly since one of her trademarks is attention to detail. Notice that he got permission to use the music, but didnt bother with the artwork. A couple of my GS's paintings have been used on people's blogs as illustrations to accompany the postings. She didnt mind because the use was appropriate (in the sense of enhancing the writing), attribution was given, and it was non-commercial.

Making a copy of someone's work is always tricky. The point at which it becomes your own work and not just a rip-off is very subjective. She made a painting that she wont sell because it was derived from a couple in a portion of a larger picture in an ad. I maintain that she is silly because she copied only the pose and even the original photographer wouldnt recognize that it is a derivative work.

Asking permission is always appropriate and sometimes you get turned down. As an artist she asks for model's release for anything that might result in a recognizable portrait.

Your GF is not an artist whose reputation has been rock solid for decades and who doesn't have any commercial interests to protect.

I am not arguing a general case; I'm arguing specifically that Maisel should not have complained, let alone started a lawsuit, about this specific use of one of his works, in part because he is in the position to do so. He can let a thousand derivative suns, making a few handfuls of people happy each time, bloom without any negative effects for him.

But really, if this guy had used a picture by your girlfriend as the cover art, she would have been pissed? Why? Because a couple of dozen people now have a CD with some version of her art on the cover? Because some guy on the internet has that version on his website? I don't understand that at all. Even unknown artists are supremely unlikely to suffer any negative consequences as a result of this tiny project using one of their images. It isn't like this is a serious commercial effort: it was born out of love, not out of a quest for cash.

I don't know about photography but I do know how much effort a painter has to put into each of his painting, especially for those who's great at "attention to detail".

And the 8-bit derivative is but a thin layer on top of enormous work. Think of someone who add 10 lines of code on top of your 10,000 lines of code and publish it without asking for permission.

The artist definitely have the right to be pissed at least.

Your "thin-layer" analogy sucks. I propose one instead that I think is about 10000+10 times better.

How about instead we take your 10kloc of code, and replace every char with a randomly-chosen char with the same rough shape ("w" => "w" or "m", "l" => "1" or "l" or "I", etc). And we publish that.

The new product has some interesting properties. Information-theoretically, the new product has less entropy than your code, so it cannot be converted into your code. It doesn't do what your code did (like let you recognize Miles Davis if you didn't already know it was him). On the other hand, it's clearly derivative, because it uses _exactly_ the same whitespace, and the same line-lengths. If you hold printouts of both of them side-by-side, from far enough away, you can't tell which is which... but if you get up close enough the difference is obvious. One is obviously a technically-detailed work that had some specific requirements and took a lot of skill, the other is obviously and evidently less so (but still took a LITTLE skill, or at least effort). If someone already knows the original, the derivative will call it to mind, but if they don't, the derivative is uninteresting. The derivative clearly is a comment on the original, because otherwise it wouldn't exist.

Actually, I think I've got a pretty tight analogy here.

Why on earth would you be pissed off?

The only merit that the pixellated version had was that it was a (not very) processed version of an iconic image. I'm with the photographer on this one.

It was actually re-drawn by a pixel-artist. It's a completely remade version of the image, which is why fair use should apply -it's not like he's taken the image into Photoshop and used some filter.

What would the reaction be if, for the sake of argument, EMI took a photo that a small independent photographer made, ran it through what looks like a basic Photoshop filter, and slapped it on the next Coldplay album? Internet outrage right?

And then what would happen if the photographer sued EMI and Coldplay, and won a $32K settlement? I'm guessing the Internet would either be satisfied or angry that $32K is too little for such deep pockets.

I understand and agree that Jay was too vicious in this, but how is he in the wrong again?

It's not too surprising that we often root for the little guy, but this wasn't a Coldplay album or a Photoshop filter. This was a very limited release art project to celebrate Miles Davis, early computers and talented electronic musicians.

The case is especially interesting because no large faceless corporation was involved, it was one (very wealthy) artist going after other (not very wealthy) artists.

My understanding of the argument is that someone, or some entity, with a certain amount of money should not sue a significantly smaller person for another amount of money that would cause a hardship on the smaller person.

Is there a point at which those values of money make it acceptable to take some one else's work, alter it, and re-sell it? If Maisel had settled for $10,000 would we be having this issue? What about $1000? Nothing at all?

Litigation is unfairly tilted towards those with money. Fortunately for Jay he has some. He obviously felt that Kind of Bloop's cover unfairly used his art, so he sued. I am assuming that the settlement will cover _his_ legal costs. My wild-ass guess is that $32.5K would be about right to cover filing, and negotiating a settlement with a good NY attorney.

So, if an artist feels that their work was ripped off (whether or not that is ACTUALLY the case), and they have the means to do so, do they not have the right seek litigation against the offender?

It's not an argument, I'm just stating that it's not surprising to see push back when a wealthy person or organization goes after someone who's not wealthy.

Regardless of the merit (I believe it's fair use), Maisel was not harmed by this remixed album. Purely sending a cease and desist would have done the trick, there's no reason to try and squeeze cash out of it. That's why I think he comes out looking like a dick.

The same laws that protect the artist protect the GPL, and wealth really has nothing to do with it. He should have come up with original artwork to use on his project, just like a company that wants to use GPL code in a non-allowed way needs to write their own code. The law needs to be consistent not feel good.

Wealth and individual vs corp is not relevant, laws are, or should be, applied equally.

The law has little to do with who the internet roots for. A rich guy can be simultaneously right and a dick.

This is pretty much direct pixelated copy of the original photo. I think he deserved to get sued.

The derivative examples he provides below are copies of truly iconic images, while Miles Davis cover is a pretty mediocre photo by a commercial photographer.

This is a clear-cut case of fair use - it seems Maisel would likely have lost had the case gone to trial (see Blanche vs Koons).

To your second point; the original photograph on the Miles Davis cover has absolutely become an iconic piece of American culture - I take it you're not a jazz enthusiast?

Go to google images and search for "jazz" or "miles". You will not find that photo in the first 200+ images (I haven't checked further). You will see many other photos of Miles Davis though. You call that image "iconic"?

And then go search for "morrison".

43rd one, by my quick count: http://images.google.com/search?tbm=isch&hl=en&sourc...

And 20th for "Miles Davis": http://images.google.com/search?hl=en&biw=1400&bih=9...

"Kind of Blue" the album is incredibly famous and respected (http://en.wikipedia.org/wiki/Kind_of_Blue#Reception_and_infl...), and its album art--though not the best I've seen--is therefore a Big Deal by association, if nothing else.

Point proven. How can an iconic image be #20 or #43? Shouldn't it be #1 like for Morrison?

He is in the wrong because he doesn't recognize that a pixelated version of his iconic photograph of Miles Davis is an incredibly appropriate cover for a CD with 'pixelated' renditions of his music.

Given the circumstances, an album with a very limited audience, available primarily for electronic download (there was only a physical version with this cover for Kickstarter backers), I think the commercial and legal aspects should be considered moot.

Let a thousand of these tiny suns bloom. The world would be better, not worse and that is the only criterion that needs to count. All analogies are off, because we don't need to be arguing the general case. They all fail to consider that this is a work by an accomplished artist whose reputation or commercial interest are in no way threatened by this use of his work. That is the specific case under consideration and that is why he is utterly wrong.

He's wrong because he's a highly successful artist (http://twitter.com/danielpunkass/status/83909442583793664) and @waxpancake is a cool web dude who is friends with other cool web dudes and that seems to be how the internet works now.

No photoshop filter involved. It was manually created by a pixel artist.

It's amusing people think it was a photoshop filter. Take a look at the diamonds in the tie. It would take an awesome algo to figure out that this surface is plane covered by diamond-ish things, and straighten it out, rotate it slightly, and enlarge it (while keeping the other constraints of the picture in place) so that the pixel diamonds fit on it well. Not to mention that the pixel diamonds only broadly evoke the of the tie, and are even truncated at the top and bottom in ways calculated to evoke the original, that have nothing to do with mechanical pixelation.

And that's just one tiny element.

Agreed - pixel/bitmap artist weighs in (not my post): http://mrgan.tumblr.com/post/6840184364/hand-pixelated

It's ridiculous that a photograph from 50 years ago is still under copyright.

Copyright law is supposed to encourage artists to create new work. However, it's been perverted to let artists (but mostly large corporations) milk money from a single cow in perpetuity.

I went into this article expecting to see some horrible abuse, but...this is silly.

"Copyright law is supposed to encourage artists to create new work"

By discouraging other people from reproducing their work without permission and/or compensation, yes.

Someone got jumped on for reproducing a work at a lower quality. Whether it was a photoshop filter and/or hand placement of a few pixels doesn't matter; it was recognizably reproducing the work. This wasn't some new piece of art that got them sued, this was a particular reproduction of a 50-year-old photograph.

There's a significant difference between something like this and, well, covering a song as a chiptune. If you cover a song and try to sell that, you have to make arrangements to compensate the songwriter or rights owner. This is just appropriating an original work and hoping nobody notices.

Yeah, I'm really sure that 50 years ago the photographer thought "F. it, if I take this picture, in 50 years some dude will be able to make a pixelated impression of it, so it's not worth my time. Oh no, wait. Copyright will protect my work from that, so I'm good to go."

The purpose of Copyright law is to "promote the Progress of Science and useful Arts", not make creators feel like they are entitled to total control over their work.

The question is whether the progress of the Arts, as a whole, is promoted by preventing people from creating derivative works. You act like copyright is all promotion, but there is of course an opposite effect, too, by preventing people from creating derivative works. Why do you think the copyright clause explicitly specifies that copyrights are "for a limited time"?

No, no, a thousand times no.

It's not "reproducing a work at a lower quality." That would imply that the artist was trying to copy the original but could only get those dang pixels because all he had was a 1980s era computer and couldn't do any better. That's clearly not the case.

It's a different work of art inspired by the original, meant to evoke it but clearly apart in purpose, aim, and audience.

It's like saying that "Pride, Prejudice, and Zombies" was a poor attempt at copying "Pride and Prejudice."

Leaving aside questions of what constitutes "fair use", I'm arguing that this work should have already passed into the public domain.

Someone got jumped on for reproducing a work at a lower quality.

Just because you don't like it doesn't mean it's objectively "lower quality".

...Resolution, genius.

Wow. To add some other interesting info to this, Jay Maisel is the owner of (and lives in) a large building in lower manhattan 190 Bowery. If you've ever walked past this building you'd recognize it as it's covered in street art all the time, and is constantly changing as more art is added and falls apart.

I always though Jay was a good guy for letting artists use that space (even if it was a silent agreement), but maybe that's not the case...

Not that it directly involves this case of fair use, but that building is worth millions of dollars, so Jay was doing this for the sake of "artistic purity" or whatever you want to call it, not because he's a starving photographer...

An article about his building a few years back: http://nymag.com/realestate/vu/2008/09/50481/

The magazine leads one to believe that the "street art" isn't really condoned (and may actually be a legal hassle for him), it's just inevitable in that area of Manhattan.

Gruber made, I think, a somewhat asinine point about this being an example of how spectacularly well-off Maisel is and how much of a dick that makes him for enforcing his IP rights. But Maisel bought the place for a pittance in the '70s and doesn't collect rents on it. I'm sure he's much better off than Baio, but he's not a mogul.

Maisel bought the place for a pittance in the '70s...

2008 - 42 = 1966.

$102K in 1966 is $711K in 2011 inflation-adjusted dollars.

It's a 72-room building... I'm pretty sure that qualifies for "a pittance".

He could be a mogul though, that building would sell for many tens of millions. He's a very wealthy man.

That's exactly right. Owning a lot of valuable "stuff" makes you wealthy even if you don't have a lot of cash.

I agree that he's wealthy.

And if he needed money, he could take out a HELOC for a few million on the place. Or a reverse mortgage. He's wealthy.

"Not that it directly involves this case of fair use, but that building is worth millions of dollars, so Jay was doing this for the sake of "artistic purity" or whatever you want to call it, not because he's a starving photographer..."

I could see it being a mix of both.

I don't think it makes him less of a good guy.

I know this will be an unpopular viewpoint here, but the pixel representation looked really similar to the original, to the point that I wouldn't be able to tell the difference at 5 feet.

I appreciate what the author was trying to accomplish, and my geek side totally understands the transformative nature, my photographer side thinks it is too close, especially for a commercial work.

I don't think this was a case of "Internet entitlement", but rather a case of two cultures clashing, which is unfortunate, because the cover fit the album so well.

I agree entirely. I've seen some remarkably creative, unique, quality pixel art, but this was not it. When I saw it, my first thought was, "Well, I guess it was kinda creative to use a cross pattern on the tie instead of diamonds..." Apart from that, the only difference is the resolution.

It strikes me that very few people would have seen the remixed artwork had Maisel not insisted on extracting his "pound of flesh" from Andy. Now it's going to be spread all over the internet -- along with the story of Maisel's self-righteous ego.

Could this be a new variation of the Streisand Effect? Lawyering up on some inconsequential copyright violation and getting your poor behavior broadcast across the entire internet? Should it be the Maisel Effect or does Sony already have trademark?

The "extra credit" question at the end is a fascinating one, I think. I would /love/ to hear the opposing side's answer, since we know the first image is not acceptable to them and presumably the final image would have to be.

Well, just because it's hard to decide exactly where to draw the line doesn't mean he can't cross it. I actually had the opposite take on this question. As I read, I wondered where the author would draw the line -- a grayscale version, one with pixels half as small as his, a 16-bit version? He didn't include intermediate images between his and the original, just between his and the extreme.

The truth is that his version just wasn't that different than the original iconic image. He used the image in exactly the same context, derived value from the similarity (that was the whole point), and derived revenue from the sales. So how is this okay?

> I wondered where the author would draw the line

I wondered the same thing. For example, what if I took his 8-bit music and painstakingly recreated by hand a 4 bit version by exactly copying the notes from his version. And what if that started appearing all over the internet and swamped the references to his own work? I think he'd be pissed off.

I feel bad for him because he did go out of his way to do the right thing on all other counts and this was an oversight - receiving a $32k punishment for a simple mistake is a tough break. However from his description he knew up front he was trading on a very fluid definition of fair use and he had to know it was a risk.

OTOH, If you started that question from the original, I bet most people would draw the line below the pixelated version that was sued over. And most people would draw a line at some point, so the idea that it is clearly fair use seems very debatable.

Now you'll be sued by Yahoo: http://www.delicious.com/favicon.ico

Every time copyright comes up, there are always small, independent artists/programmers/writers who chime in and say "I love copyright! It protects me!" and every time I point out, no, actually, you only get screwed by copyright maximization.

I want to forcefeed this article to all of them.

Would have putting this project into its own LLC (or other business structure) have been beneficial in anyway?

I've always been curious about how many Etsy-type stores sell video game trinkets referring to classic video games without asking for permission from the original game makers. Somebody recently told me that the general rule is "if they havent't made a similar product in the market, then go right ahead", which didn't comfort me much.

Are there any landmark cases that have set good precedence for fair use online beyond allowing for parodies of works?

So he agrees to a settlement where he pays a fine, and agrees to never use the artwork again … and then he goes and uses the same image as well as a variety of other variations of that image as part of his blog-post on a website at least partially supported by ads?

> (Note: This post was reviewed by both my and Jay Maisel's legal counsel.)

The laws covering editorial usage (for which a blog certainly applies) are very different than the laws surrounding putting a derivative work on a commercial product and selling it.

In that case, I'd say fair use applies.

It's unpopular, but I tend to side with the creator in copyright cases. I like creators. But in this case, they're both creators.

One point: I think a mechanically produced low-resolution version of the image would not be "transformational". The image here does look mostly like that - an exception is the tie, which is rendered as if flat, to preserve the pattern. I think if all or most or enough of it was like that - a sort of cubist version - it would be transformational.

It really sucks to pay tens of thousands of dollars. And the experience itself sucks even more. The guy should have just got an injunction, not damages etc. Though I guess, many had been sold already - it was too late to prevent the problem. The only justification I can think of for the artist is to cover his own legal costs. I wonder if he would have just asked Maisel to stop, with no lawyers involved, if he'd known in time? OTOH, Maisel firmly believes he was in the right - so I also wonder if he would have stopped? Maybe lawyers - and their costs - had to be involved

That's your new cover right there: http://marckremers.com/hn/md.png

I wonder here if a "loser pays" rule, where the loser pays the other party's legal bill in part or in full, would have encouraged the author to pursue his defense longer.

I'm guessing he did pay.

He settled, and he did so because of his rising legal costs, which is to say even if he won he would still pay those large legal costs. Under loser-pays rules, if he'd pressed on and won, he would not have paid his legal costs, the other guy would have covered them.

No. Once his own costs reached a limit where he had to settle, the other side would have had similar if not greater legal costs racked up. Continuing at that point is a double or nothing bet, which might make sense if the odds are in your favour (i.e. you think you'll win) and you can diversify over many such bets. But for a single individual in a single case, it's a huge risk.

The other side was rich. The defendant was not. Don't you think that makes a difference? They weren't on equal footing, that's the whole point.

This is way off-topic, but that last frame of the extra credit looks like a beautiful color scheme for a website. Not that I'm going to steal it, you know, or anything..

That inherent beauty and balance which you pick up on is a part of why the original photograph is such a great one.

Speaking as an amateur photographer, that strikes me as ridiculous.

Look what happens if you reduce the original picture to four pixels algorithmically: http://i.imgur.com/q2z3w.png

Point being, the final four-squares image in the pixel series bears no relationship at all to the original photograph beyond a color scheme which is only reminiscent of (not identical to) the original. And the color scheme wasn't the original photographer's invention, anyway.

If there's any "inherent beauty" or "balance" in that last picture, with just four squares of color, it was put there by the artist who made the series of pixel versions.

I was referring to the colors in the original picture, not the four-square thing. The four-square is merely a distillation of the original photo (and no it is not algo-correct but who cares?)

You can read the seeds of the downfall in his own words:

"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..."

All well and good; or mostly well and good, as he didn't seek to license the cover shot. Therefore, the "entire project" wasn't "above board" and the statement above is disingenuous. So why didn't he try to license the cover shot? Apparently, he thought that wasn't necessary. Leading to this conclusion:

"If you're borrowing inspiration from any copyrighted material, even if it seems clear to you that your use is transformational, you're in danger. If your use is commercial and/or potentially objectionable, seek permission."

As a visual artist, I don't like getting ripped off. It's happened any number of times, on a small scale. So I can sympathize with Maisel, even if he comes across as a hardass. I can also sympathize with Baio, but not as much, because he explains pretty clearly how he did it to himself.

I should also note that the US Congress ratified the Berne Copyright Convention, which includes protection of the "moral right of the artist." This includes explicit protection against someone else modifying one's work.

One person's "transformation" is another's "mutilation."

'Therefore, the "entire project" wasn't "above board"'

Pet peeve of mine: I hate it when people cut quotes down in a way that changes the sense of the original, then start arguing based on the faked up quote they just provided. The full quote, why you even provided it yourself, was:

"I went out of my way to make sure the entire project was above board"

The point is that he was trying, and trying very hard. His failure to license the cover was the entire point of the article. He is saying that the reason for it was simple, honest oversight, and we can believe that his motives were pure by virtue of how much money he put down for the other portions of the album. How can you accuse him of being disingenuous when its his own article you're citing back at him as the evidence? It's pretty ineffective disingenuousness!

I don't understand this comment. You're replying to someone who points out an acknowledged flaw in Baio's logic: he "went out of his way" for the music but ignored the rights on the cover art. Even Baio wouldn't disagree with that; had Baio known, he obviously would have tried to license the art and, failing that, come up with some other cover.

I don't see how the quote here has been misappropriated at all.

Further, the subtext of your comment seems false. "The point is that he was trying, and trying very hard". Well, no. That's not the point. The legal system often does give credit for trying, in the sense that a good faith effort may ward off treble damages. But compliance with the law is often not a best-effort thing, and you do not in the real world always get points for effort.

The problem jerf is referring to, IMO, is this part:

Therefore, the "entire project" wasn't "above board" and the statement above is disingenuous.

He's explicitly (and literally) stating that Baio was not being sincere. When this clearly isn't the case. I think we both understand the difference between disingenuous and an oversight.

And in particular he wasn't being disingenous with the statement he made. As jerf points out the statement is used as the pretext for the mistake he made. How in the world could that be disingenuous -- unless you think he didn't actually try and is lying about the whole thing?

He obviously didn't go out of his way to make sure the entire project was above board as he didn't check the art, therefore the statement is disingenuous.

I think jerf's got the wrong end of the stick of the idiom:

went out of my way

It doesn't mean try, it means done more than necessary, when he hadn't done the necessary. He hadn't even checked whether they'd be any issue with the artwork.

If he'd said I thought I went out of my way it'd give the sentence the meaning that jerf and you seem to be giving it.

But he didn't and so gallerytungsten is right, although being a little pedantic as the author did later explain he'd just assumed the use was transformational enough.

When I was reading the article I had to re-read the first few paragraphs as it doesn't actually make sense (to say he'd checked the entire project was above board when it clearly wasn't or he wouldn't be writing the article).

I hope that you never make a mistake.

But if you do, I hope the world is kinder to you than you are to baio.

As far as I'm concerned, it's irresponsible to defame baio based on nothings but a particularly uncharitable reading of a blog post. I don't understand why you think that's enough to claim he is purposefully dishonest.

As kenjackson said, the word that set me off was disingenuous. It is a hostile interpretation of the original article that the author first claimed to be blameless and above board, then turned around immediately and explained how was not blameless. Instead, with a reading where you extend the author a bit more credit, it is a story of an acknowledged oversight, where the goal of being above board was not met, and the evidence of that goal was the fact that he licensed everything else he thought of to license. (Goals aren't results.) I'm not talking about legalities at all.

You twisted his words to imply he stated that the work he did was in fact "above board." He never said that, in fact, the entire point of this article was about the fact that his attempt to "keep it above board" (what he actually said) failed.

I think I can understand Baio's logic:

Photographs & Music are two very different mediums.

A music composition is made to be played. And part of that is that multiple people will probably be playing it. The fact that the instrument choice used on the album was unique did not make it any different from any other cover album. And thus permission was sought.

A photograph on the other hand is made to be viewed & that's not how it was being used in this case. It was being used as the inspiration for a new derivative work of art which played off the concept of the music.

I can totally see why Baio was not worried about licensing the original. I can also totally see how this was a mistake in practice.

There's no "mutilation" going on here at all. The remix has no effect on the original work.

This concept of the "moral right of the artist" is the kind of incredibly vague legalese that's at the heart of the problem here, really. Nobody's arguing that artists shouldn't get compensated for their work (and it's disingenuous for you to assume that). The real problem is that the laws pertaining to this are so vague that they basically enable the person with the most expensive lawyers to bully anybody and win.

If you're in favor of an intellectual-property plutocracy, then congratulations, because that seems to be what we've got.

The secondary problem is both legal and cultural: remixing a work is not yet perceived by many people to be "work". But it is, without question. Doesn't the remix artist deserve to be compensated for their work?

Someday you'll find yourself in a similar situation, if not through malice then by accident, and you'll desperately wish that rules were clearer.

re: "This concept of the "moral right of the artist" is the kind of incredibly vague legalese..."

No, it's not "incredibly vague." Rather, it's pretty clear:

What constitutes infringement of moral rights?

VARA grants two rights to authors of visual works: the right of attribution, and the right of integrity. The right of attribution allows an author to prevent misattribution of a work, and to require that the authorship of the work not be disclosed (i.e. remain anonymous). The right of integrity bars intentional distortion, mutilation, or other modification of a work if that distortion is likely to harm the author's reputation, and prevents the destruction of any work of recognized stature. Therefore, if I paint moustaches on a painting by a famous painter such as Roy Lichtenstein or Frank Stella, I will have violated the artist's moral rights under VARA. If I paint moustaches on an Andy Warhol painting on the other hand, I will not have violated Warhol's VARA rights, because VARA protection ends with the death of the author.

Source: http://cyber.law.harvard.edu/property/library/moralprimer.ht...

You may say that "pixelizing" the photo caused no harm; the photographer obviously had a different opinion; to wit, that his "right of integrity" was harmed. While reasonable people can have varying opinions on the level of harm, if any, this principle, as described above, is not vague.

It also seems clear that VARA doesn't apply to the photograph in question. From your link:

"Under VARA, moral rights automatically vest in the author of a "work of visual art." For the purposes of VARA, visual art includes paintings, drawings, prints, sculptures, and photographs, existing in a single copy or a limited edition of 200 signed and numbered copies or fewer. In order to be protected, a photograph must have been taken for exhibition purposes only."

In addition, the Fair Use doctrine in the US makes things not as clear-cut as you make them out to be. Even if the creator doesn't like it, it's sometimes the case that she doesn't get to prevent her work from appearing in certain kinds of criticism, even if it involves distortion or modification of the work.

You're under the mistaken impression that the original work was used to create the new album cover. That's not the case; the Kind of Bloop cover was a completely new work that happened to look like the original. If it's possible for anyone to file a lawsuit because a given work looks similar to another work, then jeebus help us all.

Apparently you're no longer confused regarding the "moral right of the artist" being vague.

Regarding your claim that the original work wasn't used, I think this quote from the article is pretty clear:

"Before the project launched, I knew exactly what I wanted for the cover — a pixel art recreation of the original album cover..."

This wasn't a case of happenstance, as you suggest.

So why didn't he try to license the cover shot?

Because he believed (and still believes) that it was fair use: "My lawyers and I firmly believe that the pixel art is 'fair use' and Maisel and his counsel firmly disagree."

This seems to me like a lack of appreciation for a particular field.

He was making a derivative (but original in its own way) work based on Miles Davis' work. So he sought permission from the right entities to do so.

He was also making a derivative (but original in its own way) work based on Meisel's photograph. So he didn't seek permission from the right entities to do so.

This reeks of tunnel-vision. As a musician Baio had the appreciation and understanding of the field to know that he's producing a derivative work. As a non-photographer he didn't seem to think the same principle applied to another field of art.

Even though I also believe that it is fair use, I would still defer to the artist's judgment on this, because it is their right to decide where the line gets drawn, not mine. That's why it's smart to ask for permission for these kinds of things.

Two sides disagree - the tiebreaker should be the fact that one side created the original work on which the clearly recognizably derived work was based. That side gets more weight.

> it is their right to decide where the line gets drawn

No, the whole point of fair use is that certain uses are protected EVEN IF the artist doesn't like it.

Huh? Tiebreaker goes to the creator? Then you would have no fair use, parody or any of the sorts.

One person's "transformation" is another's "mutilation."

Right… it's subjective, hence his warning that you should seek permission even if you think it's obvious.

Regardless of who's side you fall on in this disagreement, I think everyone can agree that the subjective nature of it and the ambiguity of the law has a chilling effect. There is a risk to use any copyrighted work in any capacity. Defending yourself can bankrupt most artists.

It just doesn't make sense why he thought it was important to license the music to transform to 8-bits, but not license the art to transform to 8 bits.

The examples he gave of what he thought was equivalent were not close to equivalent of what he did (his friend did). The Pulitzer example was obviously its own piece of art inspired by the original. His was a flat copy that was transformed to 8 bits.

Because he didn't license the recording, he licensed the score. That's well-established; there are multiple rights in a piece of recorded music (the score, the lyrics and the mechanical rights to name three).

So you can have multiple rights here. Clearing the rights to the score is easy - if the composer is ASCAP/BMI/PRS/GEMA (etc) then there's a standard license they've agreed to, so you pay your royalties and you're away. Mechanicals and lyrics can be a bit more complex when you start creating transformative works (ie sampling, rewriting words, etc.)

It seems to me you could have a huge explosion of creative work if the type of compulsory license that exists for musical scores could be applied to, well, pretty much everything under copyright.

The losers, of course, would be copyright lawyers and the artistes that want complete control over their work even after it's published.

That is good info, but it still doesn't make sense that he didn't feel the need to license the photo.

Why did he think one type of art has more rights than another type of art?

It totally makes sense – he thought he was creating a transformative work. The score is identical in both cases, therefore you need a license. The analogy would be if you had a score that was inspired by, but transformed from, the original.

(As I understand it, and I could be wrong about this: the cover isn't the original photo run through a transform; it's a pixel art recreation. A better analogy would be the companies who replay samples to evade mechanical rights - http://www.google.co.uk/search?sourceid=chrome&ie=UTF-8&...).

Technically speaking, the score isn't identical, judging by the bits I heard. But the melody lines certainly were, and that's all you need to trigger the need to license the music.

Yep. In fact, I'm fairly sure harmonies aren't protectable, just the top line, hence all the contrafacts (same chords, so same solos, but different themes) in jazz. There are hundreds of tunes on the Coltrane or Rhythm changes.

Rhythms aren't either, or James Brown, the Winstons, or Sly and Robbie and their billion reggae ridfims would be the richest musicians in the world...

A couple little images that are hopefully a show of support: http://aptsurdist.wordpress.com/2011/06/23/a-story-by-waxy-o...

For what it's worth, if any of you haven't heard Kind of Bloop yet, it is fantastic. Seems like HNers are basically the target market for it, too.

Coming from knowing Kind of Blue very well, it's fascinating to hear what other people take from Miles' songs, and I've caught things from Kind of Bloop that I had never noticed in the original. Highly recommended.

Anyone who's ever created anything knows that it has little to do with money and everything to do with love. The love of the action, the love of seeing other people appreciate it and the love of self-expression. Copyright enforces monopolies, it does not protect the ability or motive to create.

When you sell things make sure they are yours, or you'll get burned by the decadent dinosaurs they belong to.

It sure seems like fair use to me, especially since he had his friend draw it, rather than deriving it from the original by putting the original through a pixelating program or something.

It's sad that since the potential losses of going to court are so high, most people have no option other than to settle.

Just because a reproduction is by hand versus machine doesn't change the fact that it is a copy.

What are your thoughts on the question at the bottom of the blog entry, where he gradually reduces the 'copy' to a 2x2-pixel mipmap and asks where the bright line of copyright should be drawn?

Reductio ad absurdum. Despite the Latin name, it's not a proof technique.

Yes it is.


Examples in math abounds.

You live and you learn. I only knew it as proof by contradiction, didn't realize it's actually the same thing.

Andy could do a new Kickstarter to fund a short documentary about digital reinterpretations of copyrighted works. The profits could be used to raise money to pay off the settlement.

If you're reading this Andy: just make sure that you don't use the same image in your documentary! :-)

Valid point are made throughout. I suppose we must keep in mind the balance that must be maintained:

1.) Protecting the rights of artists - those who dedicate their resources to CREATE

2.) And along the same lines, offering the freedom of expression to newcomers; re-creating art through new mediums.

Is anyone brave enough to put the most-degraded image (the four squares) on a tshirt?

Definitely seems clearly to be a derivative work and a copyright violation.

Yes, it's clearly a derivative work. That doesn't necessarily make it a copyright violation. My reading of the fair use exceptions make this clearly not a copyright violation. The problem is that you can't know for certain until a judge agrees or disagrees.

The guy folded, yes, but not because he thought he would lose, but because even fighting and winning would be too expensive.

Read my original "... derivative work and copyright violation" as two distinct statements not cause and effect.

Looks to be to be clearly a derivative work and clearly a copyright violation based on it not meeting any fair use requirements.

There are no specific requirements to be considered fair use. There are four factors that are weighed: the purpose and character of the new work, the amount copied from the old work, the impact on the market for the original work, and the nature of the old work. None of them are binary yes/no requirements.

The purpose of the new work is commercial (point against fair use) but it's also a transformative commentary on the old work, bringing new aesthetics to it (point for it). (In fact, one of Maisel's complaints seems to be that it has been transformed [1]). The amount of the old work used is the entire work (point against it). The impact on the market for the old work is minimal -- it's not an adequate substitute (point for fair use).

The final factor, the character of the old work is a factor that is very hard to predict how a court will analyze. One common distinction is "fact or fiction". A photograph of person is closer to the factual category than fiction, though the category division doesn't make much sense to apply here. It is well known and iconic, so this use doesn't "preempt" the first public presentation, which some courts have considered as relevant. Overall, I'd say this factor argues in favor of fair use, though not necessarily strongly.

It clearly meets some fair use factors, contra your claim. Enough? Well, as I said, that's not going to be determined outside a courtroom.

[1]: 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. "With this in mind, I am certain you can understand that he felt violated to find his image of Miles Davis, one of his most well-known and highly-regarded images, had been pixellated, without his permission, and used in a number of forms including on several websites accessible around the world."

Maybe if it wasn't also being used for an album cover it would have flown under the radar more. Also using photos as your source material gets you more attention since photographers are constantly having to track down copycats.


It was fair use and you shouldn't have settled. Simple as that.

If I took his album "Kind of Bloop" and compressed it by 50%, could I start selling it as my own? Andy sez that is cool.

I don't see Andy's side at all.

The artwork is a copy, used for commercial purposes and without permission.

Copyright restricts copying. This isn't fair use. It isn't a parody or an even an homage – which can blur the line.

> If I took his album "Kind of Bloop" and compressed it by 50%, could I start selling it as my own?

Not the same thing at all. Look closer, like at the tie. They didn't just reduce the color palette and resolution. He describes the process of creating it:

> I tried to draw it myself, but if you've ever attempted pixel art, you know how demanding it is. After several failed attempts, I asked a talented friend to do it.

At $8300 a month for http://decknetwork.net/ advertising, it is compelling that this sort of content can both 1) have this kind of viral platform for current issues surrounding intellectual property as it is now and 2) allow you to support and/or be complicit in the ongoing battle.

I'm not getting it, what's the connection between that website and the post?

That is the ad network for the site.

OK so I'm dense I guess, but how does that relate to your two points? Is the OP more or less credible for using that ad network? I assume you feel less somehow?

No no no, Andy is amazing and does wonders for promoting the interesting and relevant out on the net every day ... I'm just trying to bring up the point that he has an art, he is paid for that art, and I think that's a subtly in a lot of fair use issues. Arguably the iconic nature of the photograph was at least in part, because of there being sponsorship of the site capitalized on. It's fair use, I'm sure, or at least it should be, I'm not a lawyer... the point I guess I'm making is what I posted which is to elaborate 1) that money is changing hands during these publishing acts 2) you can support this sort of fight or possibly be complicit if it is not deemed a fair use, and to me that's just a weird spot to be in, and I wonder what those lines are, or what they should be, or some way to codify fair use, or a way to codify that it shouldn't be codified, or some way to monetize the problem, and hence conversely a big part of that is that fair use should be incredibly clear in cases where there is no profit motive, but this is a sponsored site, so that specific aspect of my own inner debate doesn't apply, and really should it make a difference?

Wait, so what does the ad network have to do with the fact that he's selling an album on a website with no advertisements?

I see advertisements on his website, perhaps you run an adblocker or something? Specifically I see an ad for an upcoming conference. Plus the selling of it then I guess gets to the heart of the transaction point anyway, I thought the album was free.

He's selling the album on another website - there's a link towards the end of his post ( http://kindofbloop.com/ ). I admit that I do have an adblocker, but I still don't see how it's relevant that he has advertisements on his blog - unless you're saying that he's profiting off this blog post, and that that affects his opinion?

Hrmmm... yes, but it doesn't affect his opinion, it merely exists, and should be considered related to the facts of his former threat of a case against him, or or should be a situation that is considered a subtle something ... anyway, someone already put my point much better than this, see elsewhere.

"The thirty-three ads each month are in rotation across all fifty-six sites and services."

I'd imagine it's not an entirely even split either...

Not sure why I'm being down voted, just trying to acknowledge that there is a flow of money surrounding this issue?

What are you not understanding? He's an influential blogger who has ads on his site and is writing about something that happened in his life.

There's a flow of money around every Tech Crunch article that is posted here, yet I don't see the same comments.

It's an interesting conundrum that the artist is forced to settle a lawsuit involving a derivative of a photograph from which he made (presumably) little or no money. Meanwhile, he can use both the photograph and the derivative in a medium that generates ad revenue with no fears of copyright law.

In the first case, he created something interesting, and his arguments for the symbolism of his piece and the entire project were compelling. Yet this is reasonably likely to not be considered fair use. In the second case, he blatantly displays the creative work and offers commentary on the issue, and profiting here is perfectly fine. This seems somewhat backward to me, so I think th0ma5's comment is interesting.

Thank you, I need to work on being more succinct like this, heh, so thanks for posting this.

It was your idea. I just rewrote it from my point of view :)

Step 1. Challenge fair use Step... Step 2. Be challenged back .... Step 2a, keep covering the fight ... Step 3. Profit. I think Boing Boing has or still does this. I don't see Tech Crunch really doing this, they're more just like Fox in the matter and blurring the lines of the "challenge" as trying to assert opinion as fact, and they bemoaning that when challenged.

I don't think my day is complete without seeing links from him, but I mean, this same thing happened with Danger Mouse, and that was really testing fair use, and I don't think was even trying to, but this was another copyright issue promoted by his site.

So, I mean, I'm not commenting on the substance of the specific settlement, I'm talking about the whole issue the post is describing as to what went on. He promoted a derived work, often does, it was challenged, but didn't fight it but settled, and yes that's an issue that should concern us all because that's the current fight over copyright.

Part of that fight includes was the value of the creative work directly the result of the success of the original material, without any value added or interpretation of new art, and I would say sure. I agree with the fight, and I agree that works like this should be cool to do.

But you put your shoes on of the rights holder of the original, and I think it is very clear that a guy makes money, with essentially low-res photo of my client's property.

Now, that's completely ignorant of the 8-bit technology social history hat tip, I know, but I guess I don't know how clearer to put it that I'm not coming out of left field with trying to provide some kind of subtle issue around the subject that I don't read very much about... has challenging fair use for community ideals become just another method of capitalization? Is that why the lawyers thought that their claims would be honored in court? Because that's the only thing I could barely think could be an issue for anyone.

Anyway... was hoping to see at least some kind of critical analysis. Perhaps it is forth coming by someone who can articulate maybe what I'm after better. Andy rocks, tho, for sure.

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