What happened to Waxy was terrible, but fair use works better than he thinks it does


13 Responses to “What happened to Waxy was terrible, but fair use works better than he thinks it does”

  1. agonist says:

    I don’t see anything “mere” about $35K but maybe I’m in the wrong business.

  2. Hyman Rosen says:

    I haven’t seen the art in question, but I would say in general that an 8-bit version of a photo would qualify as a derivative work of that photo, not as fair use. It’s like translating a novel to a different language. And the law prohibits the creation of derivative works without the permission of the rights holder.

    • Brad Bell says:

      Here we go:

      Imagine you hand-painted it, just as artists often draw and paint from photos. Some artists use tracing aids, like overhead projectors, because they are making images, not showing off what good drawers they are. 

      Then again, imagine someone just didn’t want to pay you, so they down-rezzed your photo to get out of paying. 

      But *how* down-rezzed? 
      (See Charlie & Adolph, etc below. You might enjoy to squinting.)

      • Hyman Rosen says:

        Making a hand-painted transformed copy of a work isn’t generally fair use either, especially if you’re going to sell it.

  3. anon0mouse says:

    From what I can tell, the issue isn’t what side of the law you’ll be on once the dust settles; but can you afford to defend yourself so as to find out. Unless you have the resources of, say,  Dodger Productions, Georgia State University, or Luther Campbell, the answer is probably no. The entertainment cartels know and exploit this.  Andy Baio wasn’t speaking theoretically, but personally. Chilling Effect is what the entertainment industry specializes in. Andy Baio was just someone else on the ass end of that.

    • Robert Drop says:

      Exactly – it doesn’t matter the rightness of one’s position if you can’t afford to fight it.  When I was in grad school, I worked on a project that generated a threat of a lawsuit (which was completely and obviously ridiculous in its objections).  The university lawyers looked at the situation, determined we were within our rights under fair use… and demanded we take down the project.  They were being named in the potential lawsuit and didn’t want to spend the funds fighting it.  (So the fact that we, the people who worked on it, couldn’t afford to go to court was rather a moot point.)

  4. jackbird says:

    You can sue someone for treason?

  5. Hyman Rosen says:

    To quote the law, USC 17, fair use is  “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research”. 

    To further quote, “A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.”

    And a bit more, “the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:… (2) to prepare derivative works based upon the copyrighted work;”

    Fair use is not “I feel like using it”.

    • TaymonBeal says:

      You misunderstand the nature of fair use. The first of the four fair use factors, “the purpose and character of the use”, does not just mean education. If a use of a copyrighted work is transformative in nature, that counts in its favor for a fair use analysis.

      • Hyman Rosen says:

        I quoted the law. The listed purposes are part of the law, and they make it clear what fair use is for. Creating transformed copies and selling them is not fair use. Here are all the criteria in the law:

        “In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
        (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
        (2) the nature of the copyrighted work;
        (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
        (4) the effect of the use upon the potential market for or value of the copyrighted work.”

        Given that the law lists a set of example purposes, clause 1 is going to be interpreted as meaning whether the purpose of the use is similar to one of the examples.

  6. ‘Fair use works better than you think!’ until it doesn’t. And then it works about as well as you expect – not very.

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