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I think this would fall into the category of ‘fair use’. The OP had a very generic high quality photo of a VHS tape. There was nothing particularly artistic ab

I think this would fall into the category of ‘fair use’. The OP had a very generic high quality photo of a VHS tape. There was nothing particularly artistic about it. Netflix provided new value, by substantially modifying the image for a new purpose. I know everyone gets worked up about big evil corporations vs the little guy, but I don’t think there is much substance here.

ggggtez 9y ago
I think you are not a lawyer, and your grasp of fair use is lacking. It's a photo of a vhs tape. They are using it to represent a photo of a vhs tape with their logo on it. What "substantial modification" could you possibly be thinking of.
- dpkonofa 9y ago
  The article admits that they modified it to get it to fit the aspect ratio of the DVD and added all the stickers on the outside of the VHS that were not present originally. Edit: For clarification, I'm not saying it qualifies as fair use but just clarifying OP's claim that there was significant modification. That doesn't mean it's legit.
  - balls187 9y ago
    Modifying dimensions is different than creating a derivative work.
    - dpkonofa 9y ago
      They didn't modify the dimensions. They added to the original artwork so that it would fit within new dimensions. They cloned parts of the image and added extra space so that the aspect ratio would stay the same but so the VHS tape would fill the entire cover. The end result is not the same aspect ratio as the original image. They also added stickers and labels.
GuiA 9y ago
It doesn’t matter, and the artistic value of it doesn’t come into play at all. If you are selling things based on a photo of a napkin I scribbled on while drunk, you’re still violating my copyright. The author here holds the copyright for those images, and Netflix is using them as part of the design for a product they’re selling. Fair use only applies when it is for a “”transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work.” (https://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/ https://fairuse.stanford.edu/overview/fair-use/what-is-fair-...) which is not the case here. This is probably just a Netflix designer (or contractor) who got sloppy by using images off the internet, but that reflects extremely poorly on Netflix or the agency/contractor they decided to use. I work as a designer for a large company, and any time I make assets that might see the light of day, the company takes extreme precautions to make sure situations like this don’t happen. There’s no reason Netflix shouldn’t be held to that standard.
- pbhjpbhj 9y ago
  I thought Fair Use was a curiously USAmerican thing, do they really have it in Australia, I expected they'd have something more like Fair Dealing which gives _practically_ no usage rights (I'm exaggerating, but only a little).
SolarNet 9y ago
That's not fair use, and that's not how copy right works, you don't know what you are talking about. And your opinions on corporations are insane if that's actually how they were allowed to function. Fair use: > criticism, news reporting, teaching, and research Netflix's use is purely commercial enterprise.
jhugg 9y ago
IANAL, but fair use doesn’t cover commercial art used to sell something, like this DVD packaging. If it did, the stock photography business might crumble overnight.
- Alex3917 9y ago
  > fair use doesn’t cover commercial art used to sell something, like this DVD packaging. Slavish reproductions can't be copyrighted in the first place, so it's irrelevant.
- Teeer 9y ago
  Nope, commercial or non-profit it doesn't matter. See Myth #1: http://www.adweek.com/digital/fair-use-youtube/ http://www.adweek.com/digital/fair-use-youtube/
  - mthoms 9y ago
    There are 4 criteria used for evaluating whether fair use applies. The first being: 1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; Source https://en.wikipedia.org/wiki/Fair_use#U.S._fair_use_factors https://en.wikipedia.org/wiki/Fair_use#U.S._fair_use_factors To be clear, commercial usage doesn't automatically indicate a violation but it would be considered.
- cooper12 9y ago
  IANAL. Fair use doesn't have a strict definition and depends on a bunch of factors that would be considered in a court: * the purpose and character of your use * the nature of the copyrighted work * the amount and substantiality of the portion taken, and * the effect of the use upon the potential market. (https://fairuse.stanford.edu/overview/fair-use/four-factors/ https://fairuse.stanford.edu/overview/fair-use/four-factors/) You certainly can include copyrighted content in commercial art, for example if it's a single second of a video, the main subject of discussion (such as in a review), a small portion of a complete work (like a quote), and more. Non-commercial use could still affect the potential market for an original (such as by outselling it or defacing it). So a lot of it depends on how much you're using, how you're transforming it, and how it affects the original.
cookiecaper 9y ago
Disclaimer: I'm not a lawyer. This is absolutely not fair use by the legal definition. There is a very difficult four-prong legal test that must be applied to any usage before it qualifies as a legal "fair use". The term "fair use" really sets people at an undeserved ease around copyright because they make just such conclusions as you've made here: if it seems like the infringement wasn't a big deal, then it's "fair" enough, and everything's OK. The reality is that copyright is very draconian, so much so that were it uniformly enforced, most of the things you like about the internet would not exist. Netflix is a big boy and should play by the same big boy rules that they love to impose on small creators. There is no reason they couldn't pay a license fee. If the photographer's demand was unreasonable, they could find another photo of a VHS tape that was priced according to their liking and license it legally. It's not like they're rare. BigCorps lean on their hotshot $1000/hr law firms to bully and push around the little guy all the time. They'll threaten to sue you into the ground no matter what you do, whether they're trying to stop you from competing against them on dubious grounds that require a massive VC warchest to afford to fight, or whether they're trying to stop you from asserting your own legal rights when their conduct has violated them, again attempting, and almost always succeeding, at making the fight far more expensive than any possible damage award. (This discrepancy is where the concept of punitive damages comes from, a legal feature that is exclusively American). I hate seeing companies play both sides of this. I love it when a little guy is able to get the gumption and cash together to teach them a lesson. I just wish it could happen more often, because small creators getting blatantly ripped off by giant companies is no rare thing.
marcoperaza 9y ago
Use for commercial purposes weighs heavily against a finding of fair use (the legal test is whether "the user stands to profit from exploitation of the copyrighted material without paying the customary price"). Mere replication without substantial transformation of the work also weighs against fair use. So does use of the most or all of the whole copyrighted work as opposed to a small part of it (each photograph in a collection is usually the "whole work" for this purpose). The Seventh Circuit also recently stated that fair use is not meant to protect "lazy appropriators" who could have easily found an alternative. This is the natural outcome of the four factors specified in the law, but is not helpful to infringers as an explicit precedent. Source: I am a law student who just did a ton of research on Fair Use law. Edit: In response to wyldfire, the two big Supreme Court cases in the area are Campbell and Harper & Row. The Seventh Circuit case I referred to is Kienitz v. Sconnie Nation.
- wyldfire 9y ago
  Thanks for providing the details. What are the relevant decisions?
- cabaalis 9y ago
  Is the availability of fair use limited when the creator explicitly states that the product is only available for licensed uses?
  - marcoperaza 9y ago
    My intuition is that it doesn’t matter, since that is basically the core function of copyright. No need to explicitly state it. You don’t even need to mark the work as copyrighted, since all works benefit from copyright automatically. On the other hand, the explicit, implicit, or expected refusal of the owner to license it for certain purpose weighs in favor of fair use. This is because of the fourth statutory factor, the effect on the market for the original. It’s harder for the owner to argue that you are depriving them of a market if they refuse to serve that market. It can go the other way though if the owner can show that the use will nevertheless affect demand for the work in the markets the owner does want to enter. The expected inability to get licensing is also one of the reasons for parody, and satire to a lesser extent[1], enjoying a presumption of fair use. Owners are unlikely to license someone to mock their work, but there is a fundamental free speech interest in allowing such mockery and commentary. [1] Parody is primarily commentary on the original work, while satire is using the original for commentary on other issues.
ajnin 9y ago
I agree with you here, to gain copyright a work must comprise a creative element, here this is a neutral photo of a VHS tape, which tries to be objective and by definition not creative at all, so it does not generate a copyright.
- GuiA 9y ago
  “Creative” in copyright law means that it results from an act of creation, which taking a photo - no matter how “neutral” - is.
  - ars 9y ago
    See: https://en.wikipedia.org/wiki/Threshold_of_originality https://en.wikipedia.org/wiki/Threshold_of_originality I don't think this image meets that test - there is absolutely no originality here. No special angles, lighting, design. Nothing. It's just a plain straight on, photo of a common item.
    - GuiA 9y ago
      Besides the fact that “no special angles, lighting, design” is nonsensical (what makes an angle or lighting “special”?...) - how do you think stock photography businesses make money exactly? Feel free to use all the “non special” photos from Shutterstock without paying them a cent and tell me how it goes.
      - ars 9y ago
        > Besides the fact The fact that he had to resort to careful pixel inspection of minute things like the position of the gear teeth, already tells you that the photo has no creativity behind it. > how do you think stock photography businesses make money exactly? By being creative in a generic sort of way. The Threshold of Originality is really not a high bar to meet. It doesn't take much. But it does take something. > Feel free to use all the “non special” photos from Shutterstock without paying them a cent and tell me how it goes. I rarely have such a need, but if I did I certainly would. People claim copyright all the time on things that do not actually have copyright protection. A great example is a typeface - it does not have copyright. But that doesn't stop people who make them from claiming copyright. There was a post on HN a while back about someone who spent months carefully searching garbage in London finding examples of a really really old typeface. He then made a font out of it, and sold it. With declarations of copyright of course - but despite how hard he worked, that typeface does not have copyright protection. (nb. The font file may have copyright as a software program.)
mafsedan 9y ago
Wow! Thanks for this. Just wondering--did you get your law degree from an ad on reddit?
Steeeve 9y ago
Long before WWW this problem was addressed with licensed stock images. It's a commercial project, not significantly transformative, and wouldn't be worth arguing fair use over. The practice of downloading a random image from the web and modifying it is a good way to learn, but not a good way to work professionally. Every design firm has a subscription to something like Getty Images these days. I suspect this was done in-house. Nobody should think to do something like this on a major production. It's just asking for trouble. (not that the major studios don't have their own snafus and that this kind of a thing is unheard of, but it mostly happens with things like daily news where people are trying to push things out as fast as they can)

ggggtez 9y ago

I think you are not a lawyer, and your grasp of fair use is lacking. It's a photo of a vhs tape. They are using it to represent a photo of a vhs tape with their logo on it. What "substantial modification" could you possibly be thinking of.

dpkonofa 9y ago
The article admits that they modified it to get it to fit the aspect ratio of the DVD and added all the stickers on the outside of the VHS that were not present originally. Edit: For clarification, I'm not saying it qualifies as fair use but just clarifying OP's claim that there was significant modification. That doesn't mean it's legit.
- balls187 9y ago
  Modifying dimensions is different than creating a derivative work.
  - dpkonofa 9y ago
    They didn't modify the dimensions. They added to the original artwork so that it would fit within new dimensions. They cloned parts of the image and added extra space so that the aspect ratio would stay the same but so the VHS tape would fill the entire cover. The end result is not the same aspect ratio as the original image. They also added stickers and labels.

GuiA 9y ago

It doesn’t matter, and the artistic value of it doesn’t come into play at all. If you are selling things based on a photo of a napkin I scribbled on while drunk, you’re still violating my copyright. The author here holds the copyright for those images, and Netflix is using them as part of the design for a product they’re selling. Fair use only applies when it is for a “”transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work.” (https://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/ https://fairuse.stanford.edu/overview/fair-use/what-is-fair-...) which is not the case here. This is probably just a Netflix designer (or contractor) who got sloppy by using images off the internet, but that reflects extremely poorly on Netflix or the agency/contractor they decided to use. I work as a designer for a large company, and any time I make assets that might see the light of day, the company takes extreme precautions to make sure situations like this don’t happen. There’s no reason Netflix shouldn’t be held to that standard.

pbhjpbhj 9y ago
I thought Fair Use was a curiously USAmerican thing, do they really have it in Australia, I expected they'd have something more like Fair Dealing which gives _practically_ no usage rights (I'm exaggerating, but only a little).

SolarNet 9y ago

That's not fair use, and that's not how copy right works, you don't know what you are talking about. And your opinions on corporations are insane if that's actually how they were allowed to function. Fair use: > criticism, news reporting, teaching, and research Netflix's use is purely commercial enterprise.

jhugg 9y ago

IANAL, but fair use doesn’t cover commercial art used to sell something, like this DVD packaging. If it did, the stock photography business might crumble overnight.

Alex3917 9y ago
> fair use doesn’t cover commercial art used to sell something, like this DVD packaging. Slavish reproductions can't be copyrighted in the first place, so it's irrelevant.
Teeer 9y ago
Nope, commercial or non-profit it doesn't matter. See Myth #1: http://www.adweek.com/digital/fair-use-youtube/ http://www.adweek.com/digital/fair-use-youtube/
- mthoms 9y ago
  There are 4 criteria used for evaluating whether fair use applies. The first being: 1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; Source https://en.wikipedia.org/wiki/Fair_use#U.S._fair_use_factors https://en.wikipedia.org/wiki/Fair_use#U.S._fair_use_factors To be clear, commercial usage doesn't automatically indicate a violation but it would be considered.
cooper12 9y ago
IANAL. Fair use doesn't have a strict definition and depends on a bunch of factors that would be considered in a court: * the purpose and character of your use * the nature of the copyrighted work * the amount and substantiality of the portion taken, and * the effect of the use upon the potential market. (https://fairuse.stanford.edu/overview/fair-use/four-factors/ https://fairuse.stanford.edu/overview/fair-use/four-factors/) You certainly can include copyrighted content in commercial art, for example if it's a single second of a video, the main subject of discussion (such as in a review), a small portion of a complete work (like a quote), and more. Non-commercial use could still affect the potential market for an original (such as by outselling it or defacing it). So a lot of it depends on how much you're using, how you're transforming it, and how it affects the original.

cookiecaper 9y ago

Disclaimer: I'm not a lawyer. This is absolutely not fair use by the legal definition. There is a very difficult four-prong legal test that must be applied to any usage before it qualifies as a legal "fair use". The term "fair use" really sets people at an undeserved ease around copyright because they make just such conclusions as you've made here: if it seems like the infringement wasn't a big deal, then it's "fair" enough, and everything's OK. The reality is that copyright is very draconian, so much so that were it uniformly enforced, most of the things you like about the internet would not exist. Netflix is a big boy and should play by the same big boy rules that they love to impose on small creators. There is no reason they couldn't pay a license fee. If the photographer's demand was unreasonable, they could find another photo of a VHS tape that was priced according to their liking and license it legally. It's not like they're rare. BigCorps lean on their hotshot $1000/hr law firms to bully and push around the little guy all the time. They'll threaten to sue you into the ground no matter what you do, whether they're trying to stop you from competing against them on dubious grounds that require a massive VC warchest to afford to fight, or whether they're trying to stop you from asserting your own legal rights when their conduct has violated them, again attempting, and almost always succeeding, at making the fight far more expensive than any possible damage award. (This discrepancy is where the concept of punitive damages comes from, a legal feature that is exclusively American). I hate seeing companies play both sides of this. I love it when a little guy is able to get the gumption and cash together to teach them a lesson. I just wish it could happen more often, because small creators getting blatantly ripped off by giant companies is no rare thing.

marcoperaza 9y ago

Use for commercial purposes weighs heavily against a finding of fair use (the legal test is whether "the user stands to profit from exploitation of the copyrighted material without paying the customary price"). Mere replication without substantial transformation of the work also weighs against fair use. So does use of the most or all of the whole copyrighted work as opposed to a small part of it (each photograph in a collection is usually the "whole work" for this purpose). The Seventh Circuit also recently stated that fair use is not meant to protect "lazy appropriators" who could have easily found an alternative. This is the natural outcome of the four factors specified in the law, but is not helpful to infringers as an explicit precedent. Source: I am a law student who just did a ton of research on Fair Use law. Edit: In response to wyldfire, the two big Supreme Court cases in the area are Campbell and Harper & Row. The Seventh Circuit case I referred to is Kienitz v. Sconnie Nation.

wyldfire 9y ago
Thanks for providing the details. What are the relevant decisions?
cabaalis 9y ago
Is the availability of fair use limited when the creator explicitly states that the product is only available for licensed uses?
- marcoperaza 9y ago
  My intuition is that it doesn’t matter, since that is basically the core function of copyright. No need to explicitly state it. You don’t even need to mark the work as copyrighted, since all works benefit from copyright automatically. On the other hand, the explicit, implicit, or expected refusal of the owner to license it for certain purpose weighs in favor of fair use. This is because of the fourth statutory factor, the effect on the market for the original. It’s harder for the owner to argue that you are depriving them of a market if they refuse to serve that market. It can go the other way though if the owner can show that the use will nevertheless affect demand for the work in the markets the owner does want to enter. The expected inability to get licensing is also one of the reasons for parody, and satire to a lesser extent[1], enjoying a presumption of fair use. Owners are unlikely to license someone to mock their work, but there is a fundamental free speech interest in allowing such mockery and commentary. [1] Parody is primarily commentary on the original work, while satire is using the original for commentary on other issues.

ajnin 9y ago

I agree with you here, to gain copyright a work must comprise a creative element, here this is a neutral photo of a VHS tape, which tries to be objective and by definition not creative at all, so it does not generate a copyright.

GuiA 9y ago
“Creative” in copyright law means that it results from an act of creation, which taking a photo - no matter how “neutral” - is.
- ars 9y ago
  See: https://en.wikipedia.org/wiki/Threshold_of_originality https://en.wikipedia.org/wiki/Threshold_of_originality I don't think this image meets that test - there is absolutely no originality here. No special angles, lighting, design. Nothing. It's just a plain straight on, photo of a common item.
  - GuiA 9y ago
    Besides the fact that “no special angles, lighting, design” is nonsensical (what makes an angle or lighting “special”?...) - how do you think stock photography businesses make money exactly? Feel free to use all the “non special” photos from Shutterstock without paying them a cent and tell me how it goes.
    - ars 9y ago
      > Besides the fact The fact that he had to resort to careful pixel inspection of minute things like the position of the gear teeth, already tells you that the photo has no creativity behind it. > how do you think stock photography businesses make money exactly? By being creative in a generic sort of way. The Threshold of Originality is really not a high bar to meet. It doesn't take much. But it does take something. > Feel free to use all the “non special” photos from Shutterstock without paying them a cent and tell me how it goes. I rarely have such a need, but if I did I certainly would. People claim copyright all the time on things that do not actually have copyright protection. A great example is a typeface - it does not have copyright. But that doesn't stop people who make them from claiming copyright. There was a post on HN a while back about someone who spent months carefully searching garbage in London finding examples of a really really old typeface. He then made a font out of it, and sold it. With declarations of copyright of course - but despite how hard he worked, that typeface does not have copyright protection. (nb. The font file may have copyright as a software program.)

mafsedan 9y ago

Wow! Thanks for this. Just wondering--did you get your law degree from an ad on reddit?

Steeeve 9y ago

Long before WWW this problem was addressed with licensed stock images. It's a commercial project, not significantly transformative, and wouldn't be worth arguing fair use over. The practice of downloading a random image from the web and modifying it is a good way to learn, but not a good way to work professionally. Every design firm has a subscription to something like Getty Images these days. I suspect this was done in-house. Nobody should think to do something like this on a major production. It's just asking for trouble. (not that the major studios don't have their own snafus and that this kind of a thing is unheard of, but it mostly happens with things like daily news where people are trying to push things out as fast as they can)