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.

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.

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.

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.

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.

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.

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.

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.

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….

@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.

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.

WtF, Cory?

@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.

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.

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.

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!!

http://www.facebook.com/jaymaisel

just sayin’

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.

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