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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.

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