Why fair use doesn't work unless you've got a huge war-chest for paying lawyers

Discuss

95 Responses to “Why fair use doesn't work unless you've got a huge war-chest for paying lawyers”

  1. Anonymous says:

    I wonder if the law has gotten crazy enough to allow third parties to bring suits against existing copyrights for undermining earlier copyrights. In that case we could have a ball destroying basically every copyright in existence.

    Seriously, I wish someone would start a wiki to create a list of every great work of art, literature or technology that would wouldn’t have if patent/copyright trolling began at the dawn of time. My guess is that we would have basically nothing to show for ourselves as a species.

  2. The Raven says:

    Coverage over at The Online Photographer.

    He just forgot to clear the rights to the cover. Which happens to be one of Jay Maisel’s most famous pictures and one of the few instantly recognizable images in music publishing

    [...]

    I’m very sorry Andy had to pay so ridiculously much money for the simple sin of forgetting to clear the rights to an image—and the money does indeed have a tendency to get stupid once the lawyers have to get involved—but I’m afraid that’s what he should have done; only a jury could decide definitively, but I believe he would have lost his case purely on its merits.

    And Jay might have let it slide (we haven’t heard his side of the story, n.b.). But as the aggrieved party, he gets to decide.

    I don’t think you’ll find very many working photographers who will side with Waxy on this one; even before the advent of digital technology, unauthorized copying was a big problem for photographers.

  3. Graysmith says:

    Being a photographer myself I’m certainly in favour of the rights of a photographer (or anyone else who creates things, designers, writers, etc.). I find myself conflicted over “fair use”.. On one hand it’s often completely harmless and does nothing to diminish the original work.. But as the creator of that work I also feel I want to have a say in it if someone wants to create a derivative work based on something I created. Basically being asked if it’s okay.

    That said, I feel similar to what Jason Kottke expressed on his site on this subject in that Jay Maisel comes off as being quite a jerk for taking $30,000+ from this guy over this. There ought to be some kind of proportionality to it, especially when the derivative work wasn’t morally objectionable or stood to reap enormous profits.

    • ccoates says:

      Fair use and similar statutes exist because there are more important things than creator’s rights. It’s as simple as that.

      Maybe that irks you, or emvee, or Maisel, but it doesn’t matter. It doesn’t even matter if they profit from it. Or that it’s recognizable. The point of the transformative criteria isn’t to render art unrecognizable. It’s to evaluate whether or not value has been added, and it’s not even the only criteria. That’s why the nature of the copyrighted work, the effect on the work’s market (I would be BAFFLED if you’re going to claim a chiptune version of the album would adversely affect Maisel’s income in any way), and the amount of the work re-used also come into play.

      And Walter, who cares if it’s dropping in? Joyce’s Ulysses is “dropping in” by that standard. The point of fair use isn’t to avoid “dropping in”, which is a ridiculous perspective, given how widely artists in any medium trade or borrow ideas. It’s to strike a balance between creator’s rights and user’s rights. And right now, the users are losing, the artists are losing, and only art conglomerates and their lawyers are coming out on top.

      Which you may disagree with, but as detailed in the very post being referenced here, even U.S. copyright law historically disagrees with you, as Waxy’s examples clearly show. And despite the strength of his case, and the likelihood he would win, he can’t afford to defend his work. The entire point of his sharing this story with the world.

      • emvee says:

        Dear ccoates, What “irks” me is when people take stuff without asking, call it their own, and then sell it. And if the law supports them in this, and the whole damn future of human creativity depends on it, I’m still irked that they didn’t have the balls or the manners to ask first. And if creativity is one’s only motivation, steal it anonymously and give it away for free.

      • jimh says:

        THIS. As an artist myself, I believe truly creative people do not come from a place of scarcity. Ideas are everywhere, And we remix things constantly. A truly “original” idea, if you dig far enough, will always be referential of something else. We are not in a vacuum.

        It’s the people who live of this type of conflict, not the artists, who are so interested in copyright and IP litigation. When artists turn on one another, I always believe that they have been seduced by the allure of big business, or have stopped creating work that satisfies their artistic selves, or both.

        When you start crying “OMG, my stuff, you has taken it!” you are just announcing to me that you have nothing else that you’re working on right now that is more important and energizing to you than work you did a long time ago.

        Anyone can have anything I make to remix to their heart’s content. I’d prefer it if people don’t use my stuff without changing it, and just add their name to it- but in the end I’d probably roll my eyes and move on before I’d hire an attorney.

        Fair use deserves a wide berth. The world would be better off without aggressive copyright litigation, all except maybe the copyright lawyers.

  4. Anonymous says:

    This is really not about fair use but justice in the US which is practically non-existent for civil lawsuits. The underlying flaw is that even if you win a trial (or if you are sure to win eventually), you still have to pay exorbitant legal costs that are not going to be reimbursed.

    This ends up creating a system where you can buy justice if you are wealthy, and you are sure not to have any if you are not. Or to put it in other words: whoever can spend more wins.

    No legal system is perfect, but as far as equality under the law is concerned – one of the more fundamental human rights – this one really sucks.

  5. Ambiguity says:

    He didn’t have money to fight it?

    Waxy is founder of Kickstarter

    Maybe I’m naive, but isn’t this the kind of thing that Kickstarter is for? Seriously, if he started a Fair-use kickstarter campaign to fight this, I have a hard time it believing it wouldn’t be funded by the readers of BB alone….

  6. Anonymous says:

    He came out with $150,000 per issue to start? Glad to see the court system doesn’t demand realistic claims.

  7. Anonymous says:

    “a chilling effect for every independent artist hoping to build upon or reference copyrighted works”

    Can you be an independent artists making transformation work? Seems like an oxymoron to me. You are dependent on another artist. Without the other artist, you have nothing to transform.

    Next, running a photo through a photoshop filter does not equate to independent work.

    The lesson you should learn from this is to ask permission first. Lots of people are willing to give you permission if asked beforehand, but once you “steal” their work, they feel violated and not longer charitable towards you.

  8. The Raven says:

    Fair use is for “criticism, comment, news reporting, teaching, scholarship, or research.” (I just checked.) This use is none of these. It’s not a shortage of money that makes it impossible for Waxy to defend himself; it’s a shortage of law.

    WtF, Cory?

    • quickbrownfox says:

      Fair use is for “criticism, comment, news reporting, teaching, scholarship, or research.” (I just checked.) This use is none of these. It’s not a shortage of money that makes it impossible for Waxy to defend himself; it’s a shortage of law.

      Wrong. From the Copyright Act, 17 USC § 107:

      [T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

      The listed uses are not exhaustive—they are examples of the kinds of uses that the fair use defense is intended to protect. Further, “comment” is a broad category. It does not do violence to the statutory language or the case law to describe Kind of Bloop’s cover as a comment on Kind of Blue’s cover art.

      • The Raven says:

        Fair enough, that’s correct. Still, I don’t think incorporating Maisel’s work into Waxy’s work for marketing–and that’s what this is–qualifies. Waxy licensed his samples; why not his photographic materials?

        • quickbrownfox says:

          I don’t think it’s fair to characterize what Baio did as “incorporating” Maisel’s work. And, as far as I know, Kind of Bloop contains no “samples” at all, but cover versions of the original songs. But I do agree with you that seeking a license would have been the smart thing to do. Even though this looks like fair use to me, seeking a license would have at least put him on notice that Maisel was hostile to this use and would likely sue. Baio says that he didn’t even think his cover art might infringe because it wasn’t really a “copy” of the original. This seems reasonable to me. I think a lot more people know about the compulsory licensing regime for cover versions of songs. And infringement suits for visual works tend to arise when there has been mechanical reproduction of an artist’s work. But see Rogers v Koons. But yes, I’m sure we all agree that attempting to negotiate a license would have been the best course of action here.

  9. fivetonsflax says:

    @ryan, you are confused. Andy didn’t say he sought permission to use “samples”. I don’t think any samples were used in this project, anyway. What he did do is obtain the rights to the *compositions*. Which was clearly necessary, because these were chiptune performances of the songs from “Kind of Blue”.

    • Anonymous says:

      @fivetonxflax Thank you for clarifying the difference between “getting permission to use samples” and licensing songs. I often doubt that any discussion of copyright is worth the time when people can’t be bothered to make distinctions like that!

  10. Anil says:

    Couple minor nits: Might point out in the post that “Waxy” is Andy Baio, of Waxy.org, so people have that important context. And while Andy was certainly important in his former role as CTO of Kickstarter, I don’t believe he was founder, or even *a* founder. (We’re awful proud to have him as part of Expert Labs today.)

  11. Brad says:

    This helps: http://www.copyright.gov/fls/fl102.html
    Just get permission to be safe.

  12. Anonymous says:

    Lot’s of comments bemoan the expense that Waxy would incur in fighting the suit, and suggest that this somehow shows that Maisel is purely motivated by greed. I doubt this is the whole story, as Maisel also has considerable legal fees to pay and likely did not make much/anything from this litigation (at $400 – $1000 per hour, lawyers’ time adds up pretty quickly).

    @quickbrownfox:
    I don’t understand how you can honestly suggest that Harper & Row truly supports the proposition, in this context, that the effect on the market impact is the most important factor. The technical language of the opinion may say that, but the context is the complete opposite of what we are contemplating here: in Harper there was a considerable negative market effect, the argument that the use actually increased the market was not addressed, and the affirmative defence of Fair Use was not found.

    It’s also interesting the way you say the use of the photo is transformative, yet also discuss the compulsory licensing of music: compulsory licenses are only compulsory if the new work does not change the fundamental character of the work. If the 8-bit port-over of the original is transformative (as apparently the 8-bit version fo photos are), then it would seem to also take the music out of the compulsory licensing scheme. Yet you seem to suggest that the compulsory licensing would apply, which seems to suggest that the 8-bit port is not truly transformative. (I realize you probably believe that the 8-bit port of music is also fair use, and that the compulsory licenses are just bast ass-covering practices, but I’m not sure that others will make the distinction.)

    I think the reality is that we interpret whether something is transformative based on our idea of what the outcome should be. 8-bit ports of music are not transformative and don’t change the fundamental character of the work because we want these uses to fall within the compulsory scheme. On the other hand we say that the 8-bit version of photographs is transformative (and presumably changes their fundamental character) because we want to allow fair use.

    I think it’s also true that if the situation was reversed and it was some young photographer suing Urban Outfitters for making an t-shirt with an 8-bit version of the photograph, we’d probably have very different comments here: the anti-corporate sentiment also seems to dictate much.

  13. benher says:

    The US always baffles me in this respect.

    If you end up on the wrong end of the law – or really, a litigious bastard, you have no options. None. You will be financially crippled until the universe implodes. Worse yet, if you fight it and lose you are not only a pauper for life (PFL!) but now there is a legal precedent for future would-be victims.

    Wee!!

  14. smagdali says:

    You can comment on Jay Maisel’s facebook page here:

    http://www.facebook.com/jaymaisel

    just sayin’

    • mjbraun says:

      Well, his Facebook page has been removed. The contact form on his website, however, is still up:

      http://www.jaymaisel.com/contact/

      That said, I hope that people will try sending rational, thought out messages, rather than the “Go die in a fire” stuff that was on the Facebook page before it was taken down. While Mr. Maisel probably won’t care either way, he’d most likely give even less of a damn if insulted and/or threatened.

      I bought the album and wrote a message and I encourage others to do the same.

  15. Tdawwg says:

    The image is still up on Waxy’s site, and is reproduced here. Don’t the same issues still obtain with reproducing it? Aren’t you risking liability? Etc. I’m rather concerned, as Maisel seems like an incredibly litigious, nasty fuck of a man.

    I hope he gets Streisand-ed, and all of his lovely pictures remixed and appropriated ad infinitum. Let’s do this!!!

  16. Anonymous says:

    Innovation is called “stealing” now. There was a time when empires (Microsoft, Apple, etc.) were built on borrowing a small bit of another’s work.

  17. Cory Doctorow says:

    Fair use allows for reproduction for the purpose of reporting and news. The Maisel lawsuit is news, the image is lawful to reproduce in discussions of the lawsuit.

    • Tdawwg says:

      It’s interesting that the commercial aspects of news aren’t taken into account. If he’s willing to spend time and $$$ litigating over the infinitesimally small loss of revenue that the image represents as an album cover (and the law allows this), then it seems likely he’d sue over the image being reproduced as news, which is not without a financial aspect. Indeed, the image could be argued to generate greater traffic, clickthroughs, etc., here, than it possibly generated interested in the album originally. So is it that no one ever litigates against news sources, or is it that the cases would be lost simply because of the news angle?

      And would this obtain for Waxy’s blog? As the creator of the remixed image, his commenting on his own work would be more self-promotion etc. than “news”: he’s not an outside source commenting on what he’s doing, he’s a party to the issue. Are both BB and Waxy similarly covered, or is he at greater risk?

      Sorry to air these thoughts at length, but I’d love to know more. Cory, any useful source you could point me to? Thanks!

  18. mjbraun says:

    While I know this story has somewhat gone to rest, I thought this should be mentioned:

    http://www.jeremynicholl.com/blog/2011/06/27/%E2%80%9Cjay-maisel-is-a-dick%E2%80%9D-freetard-mob-savages-octogenarian-photographer-over-copyright/

    Essentially a photographer (and others) come to Maisel’s defense. What amuses me is they lambaste those who would call Jay Maisel a dick (which I do think is wrong, BTW) but then goes ahead and calls them “Freetards”.

    Stay classy, Mr. Nicholl.

  19. emvee says:

    OK, that seems like an excessive punishment for a mix tape (being sold), but still, how about this: ‘Hi Mr. Maisel, I’d like to use your photo…may I?’ Usually when I “borrow” things, I ask first. At least that’s how I was brought up. Especially if I’m going to borrow something and then produce multiple, identical copies to sell. As a photographer, Google’s new image search has revealed a trove of trolls who at best, call my images their own, and at worst, leverage them for profit. I give my photos away often – to people who have the decency and manners to ask me first. I know that transformation as an art form will never die,and I hope it continues to grow. But adding profit to it without collaboration is rude, annoying and lazy.

    • joeposts says:

      He didn’t use the photo directly – a pixel artist did a version of it. Not sure if it would have been worth the trouble to get permission to do an obvious tribute to one of the most famous album covers of all time. Especially since the photographer is a huge fucking asshole.

      • emvee says:

        OK, so, the pixel artist then…not worth the trouble? It seems easy enough to reach him, people are doing that now on his FB page. Waxy was selling a product. (Albeit a clever and respectful one.) Now if he was giving it away, a one-off copy, street art etc then I might agree. But as to Maisel being a huge and fucking asshole, well, I can’t speak to that bit of insight.

        • joeposts says:

          Well, I think the pixel artist did give permission for his artwork to be used, since it was commissioned for the album..? Unless you mean the pixel artist should have requested permission from that asshole Jay Maisel? Which obviously would have been denied.

          I can see how a photographer would be upset if someone digitally altered one of their photographs and took credit for it. That’s not what happened here.

    • Horace Rumpole says:

      From the article:
      “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.”

      • emvee says:

        “I took it because you were going to say no, or charge me so much that my venture would become unprofitable.” As I said, I find that rude. Yes, people like Madonna and certain photographers who make “too much money” for mediocre work will have to make do with less money in this age of technology. But just because it’s easy to take something doesn’t mean one should be inconsiderate. Like Ryan above said…

    • OoerictoO says:

      @emvee i think you are missing the point. fair use says this is okay WITHOUT asking permission.

      when the FBI absconds with 100 web servers because they are in (or near) the same rack as an illegal one, should we isolate all the web servers?

      • emvee says:

        OK, principals aside, I don’t think it is fair use, not if he’s charging for it. He sought clearance on the samples (from an iconic musician who lived to sample) but not on the iconic image of the icon. That, to me, is not “pure love and dedication to the source material”

    • quickbrownfox says:

      OK, that seems like an excessive punishment for a mix tape (being sold), but still, how about this: ‘Hi Mr. Maisel, I’d like to use your photo…may I?’ Usually when I “borrow” things, I ask first. At least that’s how I was brought up. Especially if I’m going to borrow something and then produce multiple, identical copies to sell.

      Asking for permission might have been a nice gesture, but it wouldn’t really matter in the fair use analysis. If it did, creators could use copyright to suppress criticism of their works. See Campbell v Acuff-Rose, 510 US 569, 597 (1994) (“[Fair use] also protects works we have reason to fear will not be licensed by copyright holders who wish to shield their works from criticism.”), citing Richard Posner, When Is Parody Fair Use?, 21 J Legal Studies 67, 73 (1992) (“There is an obstruction when the parodied work is a target of the parodist’s criticism, for it may be in the private interest of the copyright owner, but not in the social interest, to suppress criticism of the work”).

  20. Anonymous says:

    Ive bought a copy of the album again to show my support.

  21. oasisob1 says:

    According to my new policy, I am now obligated to make a payment for Kind of Bloop without downloading it, and I am obligated to download all of Miles Davis’ works without paying for them.

  22. Anonymous says:

    Waxy paid to license all the music for the album, even though he was “transforming” the music, but didn’t see the need to license the cover image… and paid dearly for it.

  23. Lobster says:

    This is kind of how law works. If you have a huge war-chest for paying lawyers, you get more justice. Doesn’t really matter if you’re right or wrong.

    • Anonymous says:

      “This is kind of how law works.”

      … in the USA.

      I’m glad for living in Europe where “Money makes right” isn’t so prevalent.

    • 6Degrees0fJohnLaw says:

      bing bing bing – WINNER!

      That’s how the game is played nowadays. Money is our god-king.

  24. sirkowski says:

    Tracers gonna trace.

  25. awjtawjt says:

    There’s no lawyer who wanted to take his case for $32,500? Sounds fishy to me.

    • lhl says:

      Andy mentioned in a tweet that he might do a followup on the associated costs of mounting a defense. If you missed it:

      @BDPNT The sad truth: Even with a pro-bono defense, it costs an average $300k to litigate a copyright case. I may do a followup. -World-renowned photographer, Jay Maisel

      This is the sad state of copyright (and most other IP) law. If you’re going through the federal courts, you’re going to be financially ruined (not to mention having this drag on for years of your life) whether you win or lose.

      Of course, that’s what Maisel’s lawyers are depending on. They’re milking the inherent inefficiency (and contributing to its brokeness and injustice, from my perspective). You can see that Maisel is completely giddy about it from his quote on their home page:

      Harmon, Seidman and their associates represent clients across the country and overseas. They limit their practice exclusively to copyright infringement, always representing the copyright holders and never the infringers. They earn their fee by charging a percentage of what they obtain for you; no money for you, no fee for them. I highly recommend them.”

      A+++ WOULD SUE AGAIN!

      I don’t know whether to call it irony or just sad that Maisel and his lawyers made off w/ $30K+, which is nothing to them, but both many times the budget or proceeds of the project and certainly more than what any of the artists that participated in the project made.

      Extra points as most of Maisel’s recent photographic work is street/architectural. If others applied the same legal sociopathy as Maisel et al, he would be up to his eyeballs in specious suits related to likeness releases and architectural copyright clearances. But I’m sure that Maisel doesn’t see (or doesn’t care about) the irony at all.

      I’m glad that Andy stood up for the right to write about this. This kind of copyright bullying is a lot more common than most people not involved in trying to publish or make art today realize. The deck is stacked against you, and it’s you get unlucky… well, this.

      • Layne says:

        Heh – good points. These IP/CW lawyers are the digital equivalent of ambulance chasers. So they get to shut down works and clog up court dockets just to game the system. I’d love to see someone turn around and sue Maisel for taking pics of their building.

        And as for #33 JEM’s point, about the appropriateness of the same behavior when the roles are reversed. It’s easy to name a non-hypothetical example: the tattoo in the ‘Hangover 2′. In that case, the little guy sued the corporation and it was unwarranted. No business was lost for that tattoo artist – in fact he probably gained business due to the increased exposure. But he used the same wobbly legal tactics to get a payday.

        • JEM says:

          I don’t think the ‘Hangover 2′ example used wobbly legal tactics. It might seem silly to most people, and most tattoo artists would not have decided to sue, but the law was on his side. Sometimes being a greedy jerk is warranted, legally speaking. Unpopular, but warranted – like calling in a noise complaint about your neighbour’s party at 1am.

          We learn this in art school: If you are going to use someone else’s art for non-parody comercial purposes, ask first, or know that you could end up paying a lot for it if you get caught. If Waxy had not settled, I think this case would have ended up like Mr. Brainwash/Glen E. Friedman, where the judge decided the artist could not defend his work as transformative fair use.

          The more Fair Use is used to defend cases like this (cases that don’t involve “criticism, comment, news reporting, teaching, scholarship, or research.”), the the less effective Fair Use becomes overall, and the stronger the copyright lobby’s case against legitimate Fair Use becomes.

      • joeposts says:

        I don’t know if $30,000 is nothing to Jay Maisel – it could buy some new towel warmers for his 72-room Manhattan mansion.

    • jimh says:

      I think the point is that the 32k was an out-of court settlement. From the Gizmodo article:

      “My lawyers and I firmly believed that I was legally in the right,” he says. “But it doesn’t matter, fair use doesn’t protect you unless you’re willing to pay to defend yourself. The average copyright case costs $310,000 to litigate when there’s less than $1 million at risk.”

      So, pay up or we will bleed you anyway. Staying in the poker game takes money, and a lot of it.

  26. ryan says:

    why did he spend time and money to clear the music samples but not the photo ?
    if he considers the photo fair use why not the music samples also ?

    • Anonymous says:

      That’s the whole point now is it? The fact that he had taken the time to clear with the musicians means he applied how he understood copyright to the best of his abilities.

      Simply put, he honestly believed that he was using the image fairly – hence not feeling the need to ask for permission.

      It was a mistake on his part obviously; whether it was because he believed what he believed, or because it simply slipped his mind.

      But either way, the fact that he was willing to pay musicians is enough proof showing that he wasn’t trying to “cheat” anyone out of what was rightfully theirs.

      That’s what makes this story so polarizing – the fact that it was a genuinely honest mistake. And Maisel used (and abused) a technicality to go to the bank. That’s GREED, plain and simple.

  27. Anonymous says:

    i hope this poor guy doesnt have to pay more royalties for everyone who has seen this article

  28. quickbrownfox says:

    @quickbrownfox:

    I don’t understand how you can honestly suggest that Harper & Row truly supports the proposition, in this context, that the effect on the market impact is the most important factor. The technical language of the opinion may say that, but the context is the complete opposite of what we are contemplating here: in Harper there was a considerable negative market effect, the argument that the use actually increased the market was not addressed, and the affirmative defence of Fair Use was not found.

    I can suggest it because the Supreme Court explicitly said so. Of course the facts of Harper & Row were very different, but the Court made a broad statement that it intended to be applied to future cases. The members of the Court know that they are creating precedent and when they say that market harm is the most important element of fair use they are giving guidance to the lower courts.

    In this case the most likely harm would be to the market for licensed derivative works. If a lot of people use the Kind of Blue photograph without permission, one could argue that the image would lose value and Maisel would not be able to make as much by licensing it to people who want to purchase a license. I don’t think much of this argument. I haven’t seen any evidence that Maisel is actively licensing the image to others and the scale of this project is so small and the use so transformative that I doubt there is much market harm. But that’s at least an argument you could make.

    It’s also interesting the way you say the use of the photo is transformative, yet also discuss the compulsory licensing of music: compulsory licenses are only compulsory if the new work does not change the fundamental character of the work. If the 8-bit port-over of the original is transformative (as apparently the 8-bit version fo photos are), then it would seem to also take the music out of the compulsory licensing scheme. Yet you seem to suggest that the compulsory licensing would apply, which seems to suggest that the 8-bit port is not truly transformative. (I realize you probably believe that the 8-bit port of music is also fair use, and that the compulsory licenses are just bast ass-covering practices, but I’m not sure that others will make the distinction.)

    You seem to be misunderstanding why I brought up compulsory licensing for cover versions. I was probably unclear. All I was saying is that a lot of people know about this peculiarity of copyright law, so it is understandable that Baio would think to seek a license for Kind of Bloop’s music but not its cover art. I did not mean to suggest that there is any compulsory licensing regime for visual works. There is not.

  29. number11 says:

    So, what we take away from this is that “photographer” Jay Maisel is a scumbag and no thinking person should buy his work. Alas, some “artists” are competent at their work, but sociopaths in other respects. And the system of Imaginary Property in the US (and much of the rest of the world) has been so thoroughly co-opted by the greedy that there is probably no other option than boycott.

    Though one might hope that Maisel’s body of work would be scrutinized for any images that might include copyrighted (or otherwise protected or restricted) material, no matter how flimsy the case. What’s sauce for the goose should be sauce for the gander.

  30. emmdeeaych says:

    Too bad he didn’t start a corporation to limit his liability. All the cool kids are.

  31. petsounds says:

    I think people here are getting too caught up in the emotive aspect of “rich asshole artist squashing the soul of starving artist”. The more interesting discussion to be had, at what point is a derivative work transformative? I think the pixel art iterations at the top of the story speak to that.

    I fail to see how the pixel art version of the Kind of Blue cover is transformative (“transcend or place in a new light the underlying works on which they are based”). Fairey’s Obama illustration probably is, as he took a photograph and infused it with symbolic elements. The Kind of Blue pixel art is just that: the Kind of Blue cover, done as low-resolution pixels. The kind of representation you’d see on old BBSes. The pixel artist didn’t let us see the KoB work in a new light; it’s essentially the same work. Perhaps the work had been more stylized…more Nintendo-ish in its portrayal of the original photo, this would’ve never been an issue. But as is, the pixel artist did as faithful a representation of the original photo as he or she could (within the palette of “pixel art”), and as such I think it fails the fair use test.

    • botono9 says:

      You have described the very essence of transformation! The pixel art very much shows the original in a new light, in almost the exact same way that the 8-bit covers of the songs show the music in a new light. What was soft and “analog” in the original is now hard edged, digital.

      The pixelated version elicits much different feelings for me than the original. I cannot think of a better way to describe transforming a work of art than that.

  32. WalterBillington says:

    don’t like the photog

    not surprised – feels like he’s referencing so strongly an important component of the theme of the photo (the colours – are they in the photo?) in association with sales pitch

    but it’s a massive stretch, don’t like it, I mean – the image references the original in a very very out-there way, so abstract that you could catch an infinite number of images

    it’s not FAIR or EQUITABLE

    but he should have checked first, to know at least he was dealing with a knob, then could be ready for ensuing pitched battle

  33. angusm says:

    I hadn’t made the connection between the name in the story and the tiny ‘For Jay Maisel ring bell’ sign on the door of the seemingly-derelict building that I used to walk past on my way to work every day.

    There’s a homeless man who pretty much lives on the steps in front of the door. There’s nothing much on the outside to indicate that the building is inhabited: the Maisels seem unconcerned by the graffiti and the constantly-changing line-up of wheatpastes (including the occasional Shepard Fairey poster, among others) that decorate the walls at street level.

  34. Angryjim says:

    Stop being lazy people. Just come up with original ideas. It’s really not that hard. Lots of people do it every day.

    Sample, copy, and repurpose to your heart’s delight. I think suing people over this is rediculous. But just admit that when you do it, a large part of the attraction to your art is going to be in the recognition of the original and that original’s appeal.

  35. AnthonyC says:

    Would extending the idea of a public defender to civil suits be a plausible solution to this problem?

    It would be expensive to hire so many lawyers, but I say Good! That might encourage lawmakers to restrict this kind of abuse by corporations.

    • quickbrownfox says:

      I don’t think that’s a great idea. Our legal system strongly encourages settlement—it keeps easy cases out of the courts and ends up saving everybody a lot of time and money. If we start providing free lawyers for every civil defendant, it would probably encourage people to roll the dice at trial with far greater frequency.

      I’m a little bit surprised that Baio wasn’t able to get the EFF involved or get someone to take this on as a pro bono project.

  36. AnthonyC says:

    and the wealthy

  37. RitchG says:

    I’m not sure people understand that fair use implies the user is aware of, and admitting to, his own infringement of copyright.

  38. Layne says:

    This made it’s way to Gizmodo- http://gizmodo.com/5814820/kind-of-a-dick-move
    And surprise, the photographer seems to be a smug, loaded, asshole. Not a creative type struggling to retain control of his work and earn a dime or two.

    The posters suggesting that Waxy should have done due-diligence kind of miss the point. Creating anything will eventually run afoul of some pointless idiotic copyright law. Just trying to clear creative work would be an endless process itself. It would be a better, fairer system if copyright law wasn’t used as such a harsh penalizer of creative appropriation.

    Too bad the Institute for Justice or the EFF didn’t get on board and help him fight that bum.

    • JohnnyOC says:

      So, just getting this straight. If the photographer was a kind, fuzzy, amiable person, who didn’t have much money, you would of been fine that he won this out of court..but not if he was an asshole and had a little bit more money?

      That doesn’t make too much sense. Either he/law was right or they weren’t.

      If I ever have to go to court for something, I’ll make sure I’m a happy guy that doesn’t have much money to win public sympathy and maybe even the case.

      • JEM says:

        Adding to JohnnyOC’s comment, If Waxy was a giant moneyed corporation, would we be OK with him claiming this as fair use? If alternate-reality Money-Waxy was taken to court by the photographer and won because he was able to draw out the case, forcing the photographer to give up when he ran out of funds, what would the headline be?

        • cratermoon says:

          A just system would not favor the moneyed interests over the folks with limited resources, regardless of who is in the wrong. I’ve thought about various ways the fair use law could be written to shift the burden of proof one way or another, but in the end it doesn’t matter. Whoever can afford better lawyers and more litigation has a distinct advantage that doesn’t depend on who is the alleged infringer and who is the owner of the original work.

          • Anonymous says:

            Waxy is Andy Baio who launched Upcoming.org and sold it to Yahoo – yet he can’t pay his lawyer to defend him in court? Perhaps he figured out he was in the wrong and couldn’t win.

          • quickbrownfox says:

            Baio made a smart decision here. Even if he could afford to litigate this, what would he get out of it? His fees would likely exceed the cost of the settlement and, even if he won, he wouldn’t be able to recoup his expenses. Getting a finding of fair use wouldn’t entitle him to attorneys’ fees or damages—he’d just get to keep using the image. The costs of fighting this clearly outweighed any potential upside.

          • JEM says:

            Very true! The system does need reworking. In the court of public opinion though, the underdog party is often portrayed as being in the right, regardless of who is in the wrong. In this case, I believe that if both parties involved were of equal wealth, the photographer would still win.

          • quickbrownfox says:

            I have to disagree with this assessment. Per Harper & Row v Nation, the effect on the market for the copyrighted work is the most important element of the fair use analysis. Is there any credible argument that the use here could have anything but a positive effect on the market for the original photograph? If anything, I think this project would encourage a new generation to check out Miles Davis. And this isn’t just a low-resolution version of the original image. It has been redrawn as pixel art. This is most obvious when you look at the pattern on the tie and the detail on the sleeve.

          • JEM says:

            The court case you mentioned was about using verbatim quotes, not re-illustrating existing photos, so I am not sure how it would have affected this case.

            I commission illustration for publishing for a living. In my industry, we all know that if you are unable to secure the right to use a photo, simply having it re-illustrated opens you up to a world of trouble, EVEN IF infringing would have nothing but a positive effect on the market for the original photograph. Frankly, if it were NOT for this fear, we would do it all the time, as it often takes much longer to clear the photo rights than it takes to have it re-illustrated (and sometimes costs less too!). Simply illustrating a photo in a different style, as this artist has with pixels, is a big no-no.

          • quickbrownfox says:

            The court case you mentioned was about using verbatim quotes, not re-illustrating existing photos, so I am not sure how it would have affected this case.

            Harper & Row did involve verbatim quotes, but the proposition I cited was made without qualification (and was invoked again in Campbell, which involved creative, transformative use of audio samples).

          • Anonymous says:

            Harper & Row did involve verbatim quotes, but the proposition I cited was made without qualification (and was invoked again in Campbell, which involved creative, transformative use of audio samples).

            Harper & Row was about a newspaper scooping a book release by taking quotes from the book. There was no finding of fair value, and there was no affirmative defense. Harper & Row simply found that the negative financial impact on the book publisher (another magazine’s contractual offer to pay for excerpts from the book was actually cancelled because the Nation’s unauthorized scoop) meant that this factor favoured the publisher. It does not suport the proposition that having a positive effect on potential sales is likely to be compelling because the financial impact is the most influential factor.

            In Campbell (which did not involve audio samples but reworded lyrics) it is clear that the parody (and more broadly today, transformativeness) factor is the most important, as the parodic nature of the song essentially removed the last factor from any consideration, as the markets for the original and transformed works are very different and not commensurable. Adopting this reasoning, if the bit-mapped image is truly transformative then the market factor should again be neutral because there is no shared market.

          • quickbrownfox says:

            Harper & Row simply found that the negative financial impact on the book publisher (another magazine’s contractual offer to pay for excerpts from the book was actually cancelled because the Nation’s unauthorized scoop) meant that this factor favoured the publisher. It does not suport the proposition that having a positive effect on potential sales is likely to be compelling because the financial impact is the most influential factor.

            Nor did I claim otherwise. I cited the case for the narrow proposition that “the effect on the market for the copyrighted work is the most important element of the fair use analysis.” See 471 US 539 at 566 (“[T]he effect of the use upon the potential market for or value of the copyrighted work . . . is undoubtedly the single most important element of fair use.”).

            In Campbell (which did not involve audio samples but reworded lyrics). . .

            Not quite. 2 Live Crew also copied the opening bass riff and first line of the Roy Orbison original, which Acuff-Rose claimed constituted the “heart” of the song. I remembered that the bass riff was a sample, but from the language of the case it is unclear—they might have re-recorded this.

            . . .it is clear that the parody (and more broadly today, transformativeness) factor is the most important, as the parodic nature of the song essentially removed the last factor from any consideration, as the markets for the original and transformed works are very different and not commensurable.

            Yes, transformativeness was key in Campbell, but the Court also devoted several pages to the issue of market harm. Further, the Court acknowledged that these factors are intertwined:

            But when, on the contrary, the second use is transformative, market substitution is at least less certain, and market harm may not be so readily inferred. Indeed, as to parody pure and simple, it is more likely that the new work will not affect the market for the original in a way cognizable under this factor, that is, by acting as a substitute for it (“supersed[ing] [its] objects”).

            510 US at 591. As with parodies, a pixel-art illustration based on the original cover photograph is unlikely to serve as a substitute for the original image.

            Adopting this reasoning, if the bit-mapped image is truly transformative then the market factor should again be neutral because there is no shared market.

            I’m not sure that I understand what you’re saying here, but under the Copyright Act and the Court’s fair use opinions, the fact that the cover of Kind of Bloop does not serve as a market substitute for the original is at least a point in favor of a finding of fair use. I’m not saying that it is determinative.

      • Layne says:

        No, but if you walk back from the strawman you’re busy setting up and consider the spirit of the law VS the way it’s being read and enforced in courts, then maybe you’ll see the larger issue.

        The photog, who’s demonstrably an asshole eager to litigate against any and all use of his work, isn’t doing so on the basis of the law. No one could reasonably expect this re-versioning to be confused for the original image or to siphon funds away from the marketability of it. Instead he’s doing what any deep-pocketed litigious scumbag does – tying up the artist in a case designed to clean him out before it could ever be brought to court. These copyright/patent trolls arent struggling to make a buck or protecting the nature of their work, their using vague, interpretive justifications to bring about profitable legal shakedowns.

        Clearly, you don’t seem to be a very kind & fuzzy guy though, so you should be OK in court.

        • JohnnyOC says:

          Thanks for the poisoning the well saying I must be a nasty person so my logic is false (I can play with debate terms too)! ;)

          I honestly not siding with this guy. I think the lawsuit is sort of a nasty way to shake people down..but you got to admit, that the spirit of the law does not always equal the application of a law and that a case could be influenced by a personality, right?

          That’s all I’m saying.

  39. WalterBillington says:

    Ah hold on – he used the first image above, not the last. Sorry, but that’s a straight copy, immediately identifiable and transformed only in that it’s lower res.

    To me, transformation means abstracting the image so that you cannot reasonably say at first look that it is associated. Otherwise you’re riding on someone else’s wave – dropping in just ain’t cool.

    Had he gone with the last image, I’d be with him all the way.

    But this is like he ran it through a copier a few generations.

    Nah, he messed up. Defining that first image as “transformative” isn’t sensible to me. It’s immmediately and instinctively recognisable as the cover shot from Kind of Blue.

    • Rob Beschizza says:

      ” Defining that first image as “transformative” isn’t sensible to me”

      Sensible to the Supreme Court. http://en.wikipedia.org/wiki/Transformativeness

      • WalterBillington says:

        Thanks Rob – yes, I recognise my self-perceived omnipotence extends only to the edge of my brain, and that there is a proper legal framework (in evolution) without which creativity and the exploration of self expression and communication would be hindered.

        But if it were MY picture I’d be irked. But then, given the omnipresence (or ubiquity) of that image, I’d say fair-dos, give me a small % of each sale’s profits ie 1% – reach a fair deal. Let everyone enjoy it – as it is, I don’t think the status of the original is harmed by the sales, but is harmed by the aggressive attitude of the photog. I shan’t look at it any more.

        I may even tape black paper over my own copy. Kind of Black.

        If I were he I’d adequately transform the image a little more, to give any attacking lawyer second thoughts about wasting time and money on an unwinnable case, but not so much that the flies wouldn’t come to the honey, as it were. I’d team up with an omniscient defense team that would take the case and commit to seeing it through.

        Might be fun! Play omnom with lawyers.

        But it’s still dropping in. To me.

    • Anonymous says:

      What you’re saying makes sense except in a transformative work it’s not always that the original artwork has been changed specifically, but that due to its use in context of the new artwork, it is now transformed. For example, using an image of the Marlboro man in a collage.

      Here, the transformation if from a slightly pixelated version of the original to those minimilistic final 4 pixels. The work itself is about demonstrating the transformation (genius by the way).

  40. Anonymous says:

    It’s Karma. He didn’t say shit when Yahoo! kept the same thing, repurposing Flickr images against CreativeCommons licenses. Now he did something wrong, and trying to slander the original artist. http://www.flickr.com/help/forum/en-us/32752/page1

  41. Anonymous says:

    So, between this and the Mr. Brainwash lawsuit or the others mentioned in Andy’s post, it comes down to you can derive works from famous art, but not TOO famous. Is the threshold of originality really coming down to fame of original work?

  42. relawson says:

    step 1) take a picture of a black guy with similar head shape playing trumpet

    step 2) use that picture to base your pixel art

    step 3) when asked about the picture produce your own picture of a black guy playing trumpet

    good-to-go!

  43. Anonymous says:

    Although this case seems excessive, no group of artists has their work used without permission than photographers. It’s interesting that Waxy went to considerable effort to get permission for the music, while completely ignoring the artist.

    Unfortunately it’s common for musicians (especially amateur ones) to guard the copyright of their own music, while stealing the work of artists and photographers for their flyers and websites, etc.

  44. W. James Au says:

    Stanford Law has a Fair Use Project designed to address cases just like this:

    http://cyberlaw.stanford.edu/fair-use-project

  45. l0g1c says:

    Christ, what an asshole.

  46. Anonymous says:

    I don’t think it’s “fair use” at all. So, I agree with Jay Maisel and disagree with Waxy. While Waxy’s intentions may have been good (based on his interpretation of the laws), he should have secured a usage license for the image….which he clearly used without permission. His use of that image boils down to what the law refers to as, “a derivative work”. Waxy clearly doesn’t understand that part of the law.

    According to Waxy, his “project” was something he invested his time and energy into because of his love for the music of Miles Davis. OK….but…. if one merely looks at the first link in the OP, you’ll find there a link to Paypal that enables interested parties to pay $5 for a download. That’s “commercial use” not “fair use”. There’s a huge difference.

    Waxy also got off cheap. He clearly attempted to benefit from the image’s iconic status, without compensating the photographer. If Jay Maisel wanted to, he could have gotten a lot more than $32K for the infringement. So, perhaps Jay Maisel realized that Waxy is simply ignorant and settled the issue rather cheaply. Other photographers probably would not have been so easy on a person who uses their work without permission, credit, or compensation.

  47. Anonymous says:

    And I don’t misunderstand why you brought up compulsory licenses, nor am I suggesting you think compulsory licenses apply to images: I’m saying that compulsory licenses for musical compositions only apply if the remake/cover version doesn’t change the fundamental character of the song. If it does change the fundamental character, then compulsory licenses do not apply. This is who Weird Al needs to directly negotiate with the artists for his covers/”parodies” instead of using the compulsory license. What I am saying is that most people here (though possibly not you) probably think Bloop should qualify for compulsory licenses. This requires the implicit admission that the Bloop versions are not transformative and do not change the fundamental character of the songs. On the other hand, most people here do think that fair use should apply to the image, which means they do think the analogous 8-bit processing is transformative. There is some fundamental tensions there (i.e., 8-bit processing of songs is not transformative, but 8-bit processing of images is), and that is my point.

  48. Anonymous says:

    If a photographer takes a photo of a building and sells prints, can the architect (original artist) and/or whomever paid for the building design (owner) sue? -Shalan

  49. Anonymous says:

    I can suggest it because the Supreme Court explicitly said so. Of course the facts of Harper & Row were very different, but the Court made a broad statement that it intended to be applied to future cases. The members of the Court know that they are creating precedent and when they say that market harm is the most important element of fair use they are giving guidance to the lower courts.

    Sure, they said it, but they said it in the context where it favoured the copyright holder. They did not say it in a case where they found the affirmative defence of fair use. In cases where fair use has been found, the transformative prong has clearly been the most important. Why? Because transformative works nullify the market effect, to the extent that the market for the transformative copy is not the same as the market for the original. This is what you mean when you say/quote that the factors are intertwined. Another way of saying it is that the market effect prong is irrelevant and nonsensical when a work is transformative. I’m pretty sure SCOTUS didn’t mean to say that an irrelevant factor is the most important factor.

    You make it seem like Harper & Row gives great guidance to the lower courts as to when they should find fair use. It doesn’t. It gives better guidance on when there is no fair use.

    And I don’t misunderstand why you brought up compulsory licenses, nor am I suggesting you think compulsory licenses apply to images: I’m saying that compulsory licenses for musical compositions only apply if the remake/cover version doesn’t change the fundamental character of the song. If it does change the fundamental character, then compulsory licenses do not apply. This is who Weird Al needs to directly negotiate with the artists for his covers/”parodies” instead of using the compulsory license. What I am saying is that most people here (though possibly not you) probably think Bloop should qualify for compulsory licenses. This requires the implicit admission that the Bloop versions are not transformative and do not change the fundamental character of the songs. On the other hand, most people here do think that fair use should apply to the image, which means they do think the analogous 8-bit processing is transformative. There is some fundamental tensions there (i.e., 8-bit processing of songs is not transformative, but 8-bit processing of images is), and that is my point.

Leave a Reply