6 ms·

Not a lawyer, and this is an incredibly complex legal matter, but I think precedent hints that when media are crossed (e.g. going from photo to paint, or from p

by dvt 6y ago

Not a lawyer, and this is an incredibly complex legal matter, but I think precedent hints that when media are crossed (e.g. going from photo to paint, or from paint to woodcutting, or, like in this case, photo to tattoo), the work is (usually) transformative enough. There are two tests the judge will look at: (1) Originality, and (2) Transformativeness. Obviously, the courts will litigate this (or it's going to be settled out of court, like in the Obama poster case[1]). Interesting edge-case nonetheless. [1] http://www.nytimes.com/2011/01/13/arts/design/13fairey.html http://www.nytimes.com/2011/01/13/arts/design/13fairey.html

leviathant 6y ago
The language is fuzzy enough that it depends on how good and/or persistent your lawyers are. Coincidentally, a different photographer's photo of Miles Davis caused a copyright stink over an chiptune tribute album's artwork about a decade ago: https://www.litigationandtrial.com/2011/06/articles/attorney/trademark-copyright-infringement/kind-of-bloop-an-statutory-damages/ https://www.litigationandtrial.com/2011/06/articles/attorney...
breck 6y ago
> this is an incredibly complex legal matter I disagree. It's a simple matter: copyright laws abridge "the freedom of speech, or of the press" and should be outlawed by the 1st amendment. If that doesn't work for you they also violate the 4th Amendment ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures"). If that doesn't work for you there's the 13th amendment "Neither slavery nor involuntary servitude...shall exist within the United States". Or maybe the XIVth "nor shall any State deprive any person of...property, without due process of law". If you are prevented from doing harmless things with your property, then you are deprived of your property. The bottom line is copyrights and patents are bad laws from first principles, and completely in conflict with the rest of our values and ideals. Sure, in the body of the text they are permitted, but so was human slavery and the right of only white men to vote. We need to fix this and #AbolishImaginaryProperty #EndCopyrights #EndPatents
- FemmeAndroid 6y ago
  You can't expect a constitutional amendment to completely nullify half of a fairly clear clause of the constitution (Article 1, Section 8, Clause 8) just because an activist interpretation of that amendment might go against it. That's not how constitutional amendments work.
  - jjeaff 6y ago
    That is how amendments work. They amend or change the constitution. But maybe that's not what you meant. I agree there is little chance of changing that particular clause.
    - samatman 6y ago
      The 21st Amendment provides a clear and succinct model of what it looks like to abrogate a prior part of the Constitution. If the 1st Amendment were intended to do so to copyright, someone would have noticed by now.
    - FemmeAndroid 6y ago
      Oh, I don't disagree that they change or amend the constitution. My point was that you can't read into a theoretical ramification of an interpretation of an amendment to overrule the plain meaning of the text of the constitution. Edit: I’m a little zonked out on cold meds, but I believe if I were to go back to my legal days, the relevant canon of construction in statutory interpretation is ‘repeal by implication,’ if anyone’s curious about this idea of how we square two ideas that may be partially opposed. The basic principle is that courts will be unlikely to repeal something just because another part of the law implies it’s no longer valid. IIRC there’s some thought that subsequent laws in subsequent legislative sessions carry more weight towards a repeal, so that would be in favor of repeal in the case of the amendment. But it’s still pretty uncommon, and highly discouraged. And in this case, I think when you have a plainly written passage enshrining the right of congress to enact Copyright-esque laws, you’d need some clear language to remove the clause. The 21st is a good example, but you wouldn’t need to be that explicit. Pretty unrelated, but for those looking to argue about IP law on a constitutional basis, look at the congressional authority to enact trademark legislation. Unlike Copyright and Patent, which is an enumerated right, federal trademark law (the Lanham Act) is all based on the commerce clause. The commerce clause just being a broad clause on interstate commerce. It’s much weaker, and fun to pay attention to since the strength of the commerce clause waxes and wanes with the Supreme Court. Anyways, I hope someone enjoyed this cold medicine fuled aside.
vmception 6y ago
derivative works are exempt from copyright claims, case closed right?
- PeterisP 6y ago
  What do you mean by "derivative works are exempt from copyright claims" ? Standard language is copyright law around the world includes essentially "The owner of copyright has the exclusive rights to do and to authorize derivative works based upon the copyrighted work", there are various more specific details that may apply and change that, but the default scenario is that derivative works definitely require blessing from the copyright owner.
michaelt 6y ago
> I think precedent hints that when media are crossed [...] the work is (usually) transformative enough. Perhaps sometimes - but written song lyrics don't lose their copyright when sung.
- dvt 6y ago
  I'm sure you're correct, but I don't think media is being crossed here, since music = lyrics + melody. I'd presume that the musical piece as a whole is under copyright, but the lyrics are also under copyright, and the melody is also under copyright.
ChrisLomont 6y ago
>when media are crossed This is not correct. [1] has examples of court cases on transformative and non-transformative. Simply changing media, while copying the image wholesale, and the image alone, is not transformative. For an interesting case, look at the famous Obama poster [2], which was made from a photo of Obama, but was clearly transformed. In the ensuing legal battle, which was settled out of court, the creator of the poster went to great lengths to destroy evidence that he created it from someone else's photo (which he later regretted when caught by the court). So if the Obama poster is not transformative by your argument, then there is no way the Miles Davis tattoo would be. There's plenty more cases showing media changes are not enough. [1] https://www.nolo.com/legal-encyclopedia/fair-use-what-transformative.html#:~:text=Courts%20will%20consider%20four%20primary,its%20appearance%20or%20nature%20to https://www.nolo.com/legal-encyclopedia/fair-use-what-transf... [2] https://en.wikipedia.org/wiki/Barack_Obama_%22Hope%22_poster https://en.wikipedia.org/wiki/Barack_Obama_%22Hope%22_poster

by dvt 6y ago

leviathant 6y ago

The language is fuzzy enough that it depends on how good and/or persistent your lawyers are. Coincidentally, a different photographer's photo of Miles Davis caused a copyright stink over an chiptune tribute album's artwork about a decade ago: https://www.litigationandtrial.com/2011/06/articles/attorney/trademark-copyright-infringement/kind-of-bloop-an-statutory-damages/ https://www.litigationandtrial.com/2011/06/articles/attorney...

breck 6y ago

> this is an incredibly complex legal matter I disagree. It's a simple matter: copyright laws abridge "the freedom of speech, or of the press" and should be outlawed by the 1st amendment. If that doesn't work for you they also violate the 4th Amendment ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures"). If that doesn't work for you there's the 13th amendment "Neither slavery nor involuntary servitude...shall exist within the United States". Or maybe the XIVth "nor shall any State deprive any person of...property, without due process of law". If you are prevented from doing harmless things with your property, then you are deprived of your property. The bottom line is copyrights and patents are bad laws from first principles, and completely in conflict with the rest of our values and ideals. Sure, in the body of the text they are permitted, but so was human slavery and the right of only white men to vote. We need to fix this and #AbolishImaginaryProperty #EndCopyrights #EndPatents

FemmeAndroid 6y ago
You can't expect a constitutional amendment to completely nullify half of a fairly clear clause of the constitution (Article 1, Section 8, Clause 8) just because an activist interpretation of that amendment might go against it. That's not how constitutional amendments work.
- jjeaff 6y ago
  That is how amendments work. They amend or change the constitution. But maybe that's not what you meant. I agree there is little chance of changing that particular clause.
  - samatman 6y ago
    The 21st Amendment provides a clear and succinct model of what it looks like to abrogate a prior part of the Constitution. If the 1st Amendment were intended to do so to copyright, someone would have noticed by now.
  - FemmeAndroid 6y ago
    Oh, I don't disagree that they change or amend the constitution. My point was that you can't read into a theoretical ramification of an interpretation of an amendment to overrule the plain meaning of the text of the constitution. Edit: I’m a little zonked out on cold meds, but I believe if I were to go back to my legal days, the relevant canon of construction in statutory interpretation is ‘repeal by implication,’ if anyone’s curious about this idea of how we square two ideas that may be partially opposed. The basic principle is that courts will be unlikely to repeal something just because another part of the law implies it’s no longer valid. IIRC there’s some thought that subsequent laws in subsequent legislative sessions carry more weight towards a repeal, so that would be in favor of repeal in the case of the amendment. But it’s still pretty uncommon, and highly discouraged. And in this case, I think when you have a plainly written passage enshrining the right of congress to enact Copyright-esque laws, you’d need some clear language to remove the clause. The 21st is a good example, but you wouldn’t need to be that explicit. Pretty unrelated, but for those looking to argue about IP law on a constitutional basis, look at the congressional authority to enact trademark legislation. Unlike Copyright and Patent, which is an enumerated right, federal trademark law (the Lanham Act) is all based on the commerce clause. The commerce clause just being a broad clause on interstate commerce. It’s much weaker, and fun to pay attention to since the strength of the commerce clause waxes and wanes with the Supreme Court. Anyways, I hope someone enjoyed this cold medicine fuled aside.

vmception 6y ago

derivative works are exempt from copyright claims, case closed right?

PeterisP 6y ago
What do you mean by "derivative works are exempt from copyright claims" ? Standard language is copyright law around the world includes essentially "The owner of copyright has the exclusive rights to do and to authorize derivative works based upon the copyrighted work", there are various more specific details that may apply and change that, but the default scenario is that derivative works definitely require blessing from the copyright owner.

michaelt 6y ago

> I think precedent hints that when media are crossed [...] the work is (usually) transformative enough. Perhaps sometimes - but written song lyrics don't lose their copyright when sung.

dvt 6y ago
I'm sure you're correct, but I don't think media is being crossed here, since music = lyrics + melody. I'd presume that the musical piece as a whole is under copyright, but the lyrics are also under copyright, and the melody is also under copyright.

ChrisLomont 6y ago

>when media are crossed This is not correct. [1] has examples of court cases on transformative and non-transformative. Simply changing media, while copying the image wholesale, and the image alone, is not transformative. For an interesting case, look at the famous Obama poster [2], which was made from a photo of Obama, but was clearly transformed. In the ensuing legal battle, which was settled out of court, the creator of the poster went to great lengths to destroy evidence that he created it from someone else's photo (which he later regretted when caught by the court). So if the Obama poster is not transformative by your argument, then there is no way the Miles Davis tattoo would be. There's plenty more cases showing media changes are not enough. [1] https://www.nolo.com/legal-encyclopedia/fair-use-what-transformative.html#:~:text=Courts%20will%20consider%20four%20primary,its%20appearance%20or%20nature%20to https://www.nolo.com/legal-encyclopedia/fair-use-what-transf... [2] https://en.wikipedia.org/wiki/Barack_Obama_%22Hope%22_poster https://en.wikipedia.org/wiki/Barack_Obama_%22Hope%22_poster