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  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:

http://en.wikipedia.org/wiki/Copyright_in_architecture_in_th...


> 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:

http://www.gentilephoto.com/html/bio_frame.htm

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.


[deleted]


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?


No.

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.

http://daringfireball.net/linked/2011/06/23/maisel-mansion


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.




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