22 ms·

Kind of Screwed

611 points by joshuacc 15y ago

th0ma5 15y ago
At $8300 a month for http://decknetwork.net/ http://decknetwork.net/ advertising, it is compelling that this sort of content can both 1) have this kind of viral platform for current issues surrounding intellectual property as it is now and 2) allow you to support and/or be complicit in the ongoing battle.
- roel_v 15y ago
  I'm not getting it, what's the connection between that website and the post?
  - th0ma5 15y ago
    That is the ad network for the site.
    - roel_v 15y ago
      OK so I'm dense I guess, but how does that relate to your two points? Is the OP more or less credible for using that ad network? I assume you feel less somehow?
      - th0ma5 15y ago
        No no no, Andy is amazing and does wonders for promoting the interesting and relevant out on the net every day ... I'm just trying to bring up the point that he has an art, he is paid for that art, and I think that's a subtly in a lot of fair use issues. Arguably the iconic nature of the photograph was at least in part, because of there being sponsorship of the site capitalized on. It's fair use, I'm sure, or at least it should be, I'm not a lawyer... the point I guess I'm making is what I posted which is to elaborate 1) that money is changing hands during these publishing acts 2) you can support this sort of fight or possibly be complicit if it is not deemed a fair use, and to me that's just a weird spot to be in, and I wonder what those lines are, or what they should be, or some way to codify fair use, or a way to codify that it shouldn't be codified, or some way to monetize the problem, and hence conversely a big part of that is that fair use should be incredibly clear in cases where there is no profit motive, but this is a sponsored site, so that specific aspect of my own inner debate doesn't apply, and really should it make a difference?
        sorbus 15y ago
        Wait, so what does the ad network have to do with the fact that he's selling an album on a website with no advertisements?
        th0ma5 15y ago
        I see advertisements on his website, perhaps you run an adblocker or something? Specifically I see an ad for an upcoming conference. Plus the selling of it then I guess gets to the heart of the transaction point anyway, I thought the album was free.
        sorbus 15y ago
        He's selling the album on another website - there's a link towards the end of his post ( http://kindofbloop.com/ http://kindofbloop.com/ ). I admit that I do have an adblocker, but I still don't see how it's relevant that he has advertisements on his blog - unless you're saying that he's profiting off this blog post, and that that affects his opinion?
        th0ma5 15y ago
        Hrmmm... yes, but it doesn't affect his opinion, it merely exists, and should be considered related to the facts of his former threat of a case against him, or or should be a situation that is considered a subtle something ... anyway, someone already put my point much better than this, see elsewhere.
- jonknee 15y ago
  "The thirty-three ads each month are in rotation across all fifty-six sites and services." I'd imagine it's not an entirely even split either...
- th0ma5 15y ago
  Not sure why I'm being down voted, just trying to acknowledge that there is a flow of money surrounding this issue?
  - leftnode 15y ago
    What are you not understanding? He's an influential blogger who has ads on his site and is writing about something that happened in his life. There's a flow of money around every Tech Crunch article that is posted here, yet I don't see the same comments.
    - th0ma5 15y ago
      Step 1. Challenge fair use Step... Step 2. Be challenged back .... Step 2a, keep covering the fight ... Step 3. Profit. I think Boing Boing has or still does this. I don't see Tech Crunch really doing this, they're more just like Fox in the matter and blurring the lines of the "challenge" as trying to assert opinion as fact, and they bemoaning that when challenged. I don't think my day is complete without seeing links from him, but I mean, this same thing happened with Danger Mouse, and that was really testing fair use, and I don't think was even trying to, but this was another copyright issue promoted by his site. So, I mean, I'm not commenting on the substance of the specific settlement, I'm talking about the whole issue the post is describing as to what went on. He promoted a derived work, often does, it was challenged, but didn't fight it but settled, and yes that's an issue that should concern us all because that's the current fight over copyright. Part of that fight includes was the value of the creative work directly the result of the success of the original material, without any value added or interpretation of new art, and I would say sure. I agree with the fight, and I agree that works like this should be cool to do. But you put your shoes on of the rights holder of the original, and I think it is very clear that a guy makes money, with essentially low-res photo of my client's property. Now, that's completely ignorant of the 8-bit technology social history hat tip, I know, but I guess I don't know how clearer to put it that I'm not coming out of left field with trying to provide some kind of subtle issue around the subject that I don't read very much about... has challenging fair use for community ideals become just another method of capitalization? Is that why the lawyers thought that their claims would be honored in court? Because that's the only thing I could barely think could be an issue for anyone. Anyway... was hoping to see at least some kind of critical analysis. Perhaps it is forth coming by someone who can articulate maybe what I'm after better. Andy rocks, tho, for sure.
Confusion 15y ago
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. "He is a purist when it comes to his photography," his lawyer wrote. "With this in mind, I am certain you can understand that he felt violated to find his image of Miles Davis, one of his most well-known and highly-regarded images, had been pixellated , without his permission, and used in a number of forms including on several websites accessible around the world." The pixelated version was incredibly appropriate for a chiptune tribute and anyone that claims to care about art should applaud such a use of an imitation, mockup or inspired work. I don't like artists who think their work is so special that any change ruins it. 99.999% of people don't care about his original 'masterpiece' in any way, but a few more may care now that there was a different rendition of it. Artists should recognize there is a bit of luck involved in them and their art becoming famous. For every well known great artist, there are ten who were better, but simply didn't become known.
- nettdata 15y ago
  And yet it should be the artist's choice on how THEIR work is used, regardless of how you, or 99.999% of the people feel. Personally, I find the overly-developed sense of self-entitlement to be way more unlikable than an artist's overly inflated ego.
  - CountSessine 15y ago
    And yet it should be the artist's choice on how THEIR work is used, regardless of how you, or 99.999% of the people feel. For the original photograph? Yes, of course. For a derivative work, which the pixel-art reproduction clearly is in my mind? Of course not.
    - nettdata 15y ago
      Do you code? How about you send me the source to your best known, commercial product, and then I'll reformat the source, call it a derivative work, and sell it. That's cool, right? Of course not. I see this as being not that different. Which really brings up the key to this, which is what is considered "derivative". Everyone has a different concept of it, I'm sure, and it's not cut and dried. To me, simply taking a picture someone else took, and digitizing or pixellating it, is not something that I would consider "derivative". I liken it to sampling music to be used in a "derivative" work. In the vast majority of those cases, the samples have to pass through the proper licensing and be released for use before they are resold. And while the guy might not have created the content of the picture, he spent the time and effort to actually go and take the picture. Doesn't matter if he spent a month setting up the content and lighting to get the perfect shot, or sat on his cel-phone camera and it took a great picture as a result of blind luck, it's his picture. If he wants to sell that picture for profit, and has cleared the rights of the content of it, that is his prerogative. I think that the pixellated image would require something similar to a mechanical license that you find in the music industry, where someone creates the song, but then gives the rights for another band to record and sell their version of it.
VMG 15y ago
mirror?
- Stwerner 15y ago
  http://webcache.googleusercontent.com/search?sclient=psy&hl=en&authuser=0&biw=1440&bih=805&source=hp&q=cache%3Ahttp%3A%2F%2Fwaxy.org%2F2011%2F06%2Fkind_of_screwed%2F&pbx=1&oq=cache%3Ahttp%3A%2F%2Fwaxy.org%2F2011%2F06%2Fkind_of_screwed%2F&aq=f&aqi=g5&aql=&gs_sm=e&gs_upl=656l3763l0l7l5l0l0l0l0l258l810l2.1.2l5 http://webcache.googleusercontent.com/search?sclient=psy&#38...
- sbhat7 15y ago
  http://waxy.org.nyud.net/2011/06/kind_of_screwed/ http://waxy.org.nyud.net/2011/06/kind_of_screwed/
deleted 15y ago
[deleted]
smackfu 15y ago
Maybe if it wasn't also being used for an album cover it would have flown under the radar more. Also using photos as your source material gets you more attention since photographers are constantly having to track down copycats.
pinko 15y ago
The "extra credit" question at the end is a fascinating one, I think. I would /love/ to hear the opposing side's answer, since we know the first image is not acceptable to them and presumably the final image would have to be.
- skue 15y ago
  Well, just because it's hard to decide exactly where to draw the line doesn't mean he can't cross it. I actually had the opposite take on this question. As I read, I wondered where the author would draw the line -- a grayscale version, one with pixels half as small as his, a 16-bit version? He didn't include intermediate images between his and the original, just between his and the extreme. The truth is that his version just wasn't that different than the original iconic image. He used the image in exactly the same context, derived value from the similarity (that was the whole point), and derived revenue from the sales. So how is this okay?
  - zmmmmm 15y ago
    > I wondered where the author would draw the line I wondered the same thing. For example, what if I took his 8-bit music and painstakingly recreated by hand a 4 bit version by exactly copying the notes from his version. And what if that started appearing all over the internet and swamped the references to his own work? I think he'd be pissed off. I feel bad for him because he did go out of his way to do the right thing on all other counts and this was an oversight - receiving a $32k punishment for a simple mistake is a tough break. However from his description he knew up front he was trading on a very fluid definition of fair use and he had to know it was a risk.
- smackfu 15y ago
  OTOH, If you started that question from the original, I bet most people would draw the line below the pixelated version that was sued over. And most people would draw a line at some point, so the idea that it is clearly fair use seems very debatable.
natural219 15y ago
This is way off-topic, but that last frame of the extra credit looks like a beautiful color scheme for a website. Not that I'm going to steal it, you know, or anything..
- hammock 15y ago
  That inherent beauty and balance which you pick up on is a part of why the original photograph is such a great one.
  - Lagged2Death 15y ago
    Speaking as an amateur photographer, that strikes me as ridiculous. Look what happens if you reduce the original picture to four pixels algorithmically: http://i.imgur.com/q2z3w.png http://i.imgur.com/q2z3w.png Point being, the final four-squares image in the pixel series bears no relationship at all to the original photograph beyond a color scheme which is only reminiscent of (not identical to) the original. And the color scheme wasn't the original photographer's invention, anyway. If there's any "inherent beauty" or "balance" in that last picture, with just four squares of color, it was put there by the artist who made the series of pixel versions.
    - hammock 15y ago
      I was referring to the colors in the original picture, not the four-square thing. The four-square is merely a distillation of the original photo (and no it is not algo-correct but who cares?)
Spines11 15y ago
It sure seems like fair use to me, especially since he had his friend draw it, rather than deriving it from the original by putting the original through a pixelating program or something. It's sad that since the potential losses of going to court are so high, most people have no option other than to settle.
- Fooman 15y ago
  Just because a reproduction is by hand versus machine doesn't change the fact that it is a copy.
  - CamperBob 15y ago
    What are your thoughts on the question at the bottom of the blog entry, where he gradually reduces the 'copy' to a 2x2-pixel mipmap and asks where the bright line of copyright should be drawn?
    - varjag 15y ago
      Reductio ad absurdum. Despite the Latin name, it's not a proof technique.
      - ajuc 15y ago
        Yes it is. http://en.wikipedia.org/wiki/Reductio_ad_absurdum http://en.wikipedia.org/wiki/Reductio_ad_absurdum Examples in math abounds.
        varjag 15y ago
        You live and you learn. I only knew it as proof by contradiction, didn't realize it's actually the same thing.
figital 15y ago
Now you'll be sued by Yahoo: http://www.delicious.com/favicon.ico http://www.delicious.com/favicon.ico
- Kwpolska 15y ago
  http://en.wikipedia.org/wiki/Threshold_of_originality http://en.wikipedia.org/wiki/Threshold_of_originality He willn't.
uptown 15y ago
So he agrees to a settlement where he pays a fine, and agrees to never use the artwork again … and then he goes and uses the same image as well as a variety of other variations of that image as part of his blog-post on a website at least partially supported by ads?
- ceejayoz 15y ago
  > (Note: This post was reviewed by both my and Jay Maisel's legal counsel.)
- FiddlerClamp 15y ago
  In that case, I'd say fair use applies.
- deleted 15y ago
  [deleted]
- potatolicious 15y ago
  The laws covering editorial usage (for which a blog certainly applies) are very different than the laws surrounding putting a derivative work on a commercial product and selling it.
Fooman 15y ago
If I took his album "Kind of Bloop" and compressed it by 50%, could I start selling it as my own? Andy sez that is cool. I don't see Andy's side at all. The artwork is a copy, used for commercial purposes and without permission. Copyright restricts copying. This isn't fair use. It isn't a parody or an even an homage – which can blur the line.
- nollidge 15y ago
  > If I took his album "Kind of Bloop" and compressed it by 50%, could I start selling it as my own? Not the same thing at all. Look closer, like at the tie. They didn't just reduce the color palette and resolution. He describes the process of creating it: > I tried to draw it myself, but if you've ever attempted pixel art, you know how demanding it is. After several failed attempts, I asked a talented friend to do it.
gallerytungsten 15y ago
You can read the seeds of the downfall in his own words: "I went out of my way to make sure the entire project was above board, licensing all the cover songs from Miles Davis's publisher..." All well and good; or mostly well and good, as he didn't seek to license the cover shot. Therefore, the "entire project" wasn't "above board" and the statement above is disingenuous. So why didn't he try to license the cover shot? Apparently, he thought that wasn't necessary. Leading to this conclusion: "If you're borrowing inspiration from any copyrighted material, even if it seems clear to you that your use is transformational, you're in danger. If your use is commercial and/or potentially objectionable, seek permission." As a visual artist, I don't like getting ripped off. It's happened any number of times, on a small scale. So I can sympathize with Maisel, even if he comes across as a hardass. I can also sympathize with Baio, but not as much, because he explains pretty clearly how he did it to himself. I should also note that the US Congress ratified the Berne Copyright Convention, which includes protection of the "moral right of the artist." This includes explicit protection against someone else modifying one's work. One person's "transformation" is another's "mutilation."
- amirmc 15y ago
  So why didn't he try to license the cover shot? Because he believed (and still believes) that it was fair use: "My lawyers and I firmly believe that the pixel art is 'fair use' and Maisel and his counsel firmly disagree."
  - natch 15y ago
    Even though I also believe that it is fair use, I would still defer to the artist's judgment on this, because it is their right to decide where the line gets drawn, not mine. That's why it's smart to ask for permission for these kinds of things. Two sides disagree - the tiebreaker should be the fact that one side created the original work on which the clearly recognizably derived work was based. That side gets more weight.
    - timmaah 15y ago
      Huh? Tiebreaker goes to the creator? Then you would have no fair use, parody or any of the sorts.
tensafefrogs 15y ago
Wow. To add some other interesting info to this, Jay Maisel is the owner of (and lives in) a large building in lower manhattan 190 Bowery. If you've ever walked past this building you'd recognize it as it's covered in street art all the time, and is constantly changing as more art is added and falls apart. I always though Jay was a good guy for letting artists use that space (even if it was a silent agreement), but maybe that's not the case... Not that it directly involves this case of fair use, but that building is worth millions of dollars, so Jay was doing this for the sake of "artistic purity" or whatever you want to call it, not because he's a starving photographer... An article about his building a few years back: http://nymag.com/realestate/vu/2008/09/50481/ http://nymag.com/realestate/vu/2008/09/50481/
- thomasgerbe 15y ago
  "Not that it directly involves this case of fair use, but that building is worth millions of dollars, so Jay was doing this for the sake of "artistic purity" or whatever you want to call it, not because he's a starving photographer..." I could see it being a mix of both. I don't think it makes him less of a good guy.
- tptacek 15y ago
  The magazine leads one to believe that the "street art" isn't really condoned (and may actually be a legal hassle for him), it's just inevitable in that area of Manhattan. Gruber made, I think, a somewhat asinine point about this being an example of how spectacularly well-off Maisel is and how much of a dick that makes him for enforcing his IP rights. But Maisel bought the place for a pittance in the '70s and doesn't collect rents on it. I'm sure he's much better off than Baio, but he's not a mogul.
  - jonknee 15y ago
    He could be a mogul though, that building would sell for many tens of millions. He's a very wealthy man.
    - deleted 15y ago
      [deleted]
noahc 15y ago
Would have putting this project into its own LLC (or other business structure) have been beneficial in anyway?
grellas 15y ago
The legal process will grind you in any serious dispute against a determined adversary. Get a supremely optimal outcome and get the case dismissed right out the gate because it is legally defective even assuming all the facts alleged are true? Sticker price: $10K and up (more likely $25K to $50K to make it definitive after several opportunities to amend are given to the adversary). Go through discovery to find out what witnesses will say on deposition, dig through all key documents, and then move for and get a summary judgment before trial by which a case is tossed on grounds that the law allows only one result based on material facts that are undisputed bearing on the legal point? Sticker price: $100K and up, with a year or more of grief thrown in as a bonus. Go through trial and get vindicated by a judge or jury based on a complete presentation of evidence? Sticker price: $250K and up, after a year or two (or more) of wrangling. And don't forget the appeals. Most cases never get to trial and cost is a major factor prompting litigants to settle even though they are not particularly happy with an outcome. Charles Dickens, though he exaggerated for dramatic effect, got the spirit of this right in Bleak House (http://en.wikipedia.org/wiki/Jarndyce_and_Jarndyce http://en.wikipedia.org/wiki/Jarndyce_and_Jarndyce), and little has changed since. This, by the way, doesn't mean that you can't defend against cease-and-desist demands. Costs cut both ways. But it is sad how many times parties who are right nonetheless must fold because the costs of engaging (monetary and otherwise) are just not worth it.
- imajes 15y ago
  It's cliché, but totally on point: Only sue if you have nothing to lose, or your opponents are ridiculously rich. (preferably: both).
  - daychilde 15y ago
    If you have nothing to lose, you probably can't afford lawyers in the first place. Not quite your point, I know, but it seems to apply here.
    - InclinedPlane 15y ago
      If you're going after a target with deep pockets you will have no problems with lawyers who will work for a share of the settlement. Edit: changed my wording to be more accurate.
swilliams 15y ago
What would the reaction be if, for the sake of argument, EMI took a photo that a small independent photographer made, ran it through what looks like a basic Photoshop filter, and slapped it on the next Coldplay album? Internet outrage right? And then what would happen if the photographer sued EMI and Coldplay, and won a $32K settlement? I'm guessing the Internet would either be satisfied or angry that $32K is too little for such deep pockets. I understand and agree that Jay was too vicious in this, but how is he in the wrong again?
- jonknee 15y ago
  It's not too surprising that we often root for the little guy, but this wasn't a Coldplay album or a Photoshop filter. This was a very limited release art project to celebrate Miles Davis, early computers and talented electronic musicians. The case is especially interesting because no large faceless corporation was involved, it was one (very wealthy) artist going after other (not very wealthy) artists.
  - swilliams 15y ago
    My understanding of the argument is that someone, or some entity, with a certain amount of money should not sue a significantly smaller person for another amount of money that would cause a hardship on the smaller person. Is there a point at which those values of money make it acceptable to take some one else's work, alter it, and re-sell it? If Maisel had settled for $10,000 would we be having this issue? What about $1000? Nothing at all? Litigation is unfairly tilted towards those with money. Fortunately for Jay he has some. He obviously felt that Kind of Bloop's cover unfairly used his art, so he sued. I am assuming that the settlement will cover _his_ legal costs. My wild-ass guess is that $32.5K would be about right to cover filing, and negotiating a settlement with a good NY attorney. So, if an artist feels that their work was ripped off (whether or not that is ACTUALLY the case), and they have the means to do so, do they not have the right seek litigation against the offender?
    - jonknee 15y ago
      It's not an argument, I'm just stating that it's not surprising to see push back when a wealthy person or organization goes after someone who's not wealthy. Regardless of the merit (I believe it's fair use), Maisel was not harmed by this remixed album. Purely sending a cease and desist would have done the trick, there's no reason to try and squeeze cash out of it. That's why I think he comes out looking like a dick.
ChrisLTD 15y ago
It's ridiculous that a photograph from 50 years ago is still under copyright. Copyright law is supposed to encourage artists to create new work. However, it's been perverted to let artists (but mostly large corporations) milk money from a single cow in perpetuity.
- Semiapies 15y ago
  I went into this article expecting to see some horrible abuse, but...this is silly. "Copyright law is supposed to encourage artists to create new work" By discouraging other people from reproducing their work without permission and/or compensation, yes. Someone got jumped on for reproducing a work at a lower quality. Whether it was a photoshop filter and/or hand placement of a few pixels doesn't matter; it was recognizably reproducing the work. This wasn't some new piece of art that got them sued, this was a particular reproduction of a 50-year-old photograph. There's a significant difference between something like this and, well, covering a song as a chiptune. If you cover a song and try to sell that, you have to make arrangements to compensate the songwriter or rights owner. This is just appropriating an original work and hoping nobody notices.
  - jeffgreco 15y ago
    You didn't address his point at all. Is it really necessary to protect these works for 50, 60, 70 years?
  - scarmig 15y ago
    No, no, a thousand times no. It's not "reproducing a work at a lower quality." That would imply that the artist was trying to copy the original but could only get those dang pixels because all he had was a 1980s era computer and couldn't do any better. That's clearly not the case. It's a different work of art inspired by the original, meant to evoke it but clearly apart in purpose, aim, and audience. It's like saying that "Pride, Prejudice, and Zombies" was a poor attempt at copying "Pride and Prejudice."
  - lutorm 15y ago
    Yeah, I'm really sure that 50 years ago the photographer thought "F. it, if I take this picture, in 50 years some dude will be able to make a pixelated impression of it, so it's not worth my time. Oh no, wait. Copyright will protect my work from that, so I'm good to go." The purpose of Copyright law is to "promote the Progress of Science and useful Arts", not make creators feel like they are entitled to total control over their work. The question is whether the progress of the Arts, as a whole, is promoted by preventing people from creating derivative works. You act like copyright is all promotion, but there is of course an opposite effect, too, by preventing people from creating derivative works. Why do you think the copyright clause explicitly specifies that copyrights are "for a limited time"?
aptsurdist 15y ago
A couple little images that are hopefully a show of support: http://aptsurdist.wordpress.com/2011/06/23/a-story-by-waxy-org-kind-of-screwed/ http://aptsurdist.wordpress.com/2011/06/23/a-story-by-waxy-o...
6ren 15y ago
It's unpopular, but I tend to side with the creator in copyright cases. I like creators. But in this case, they're both creators. One point: I think a mechanically produced low-resolution version of the image would not be "transformational". The image here does look mostly like that - an exception is the tie, which is rendered as if flat, to preserve the pattern. I think if all or most or enough of it was like that - a sort of cubist version - it would be transformational. It really sucks to pay tens of thousands of dollars. And the experience itself sucks even more. The guy should have just got an injunction, not damages etc. Though I guess, many had been sold already - it was too late to prevent the problem. The only justification I can think of for the artist is to cover his own legal costs. I wonder if he would have just asked Maisel to stop, with no lawyers involved, if he'd known in time? OTOH, Maisel firmly believes he was in the right - so I also wonder if he would have stopped? Maybe lawyers - and their costs - had to be involved
afterburner 15y ago
I wonder here if a "loser pays" rule, where the loser pays the other party's legal bill in part or in full, would have encouraged the author to pursue his defense longer.
- akronim 15y ago
  I'm guessing he did pay.
  - afterburner 15y ago
    He settled, and he did so because of his rising legal costs, which is to say even if he won he would still pay those large legal costs. Under loser-pays rules, if he'd pressed on and won, he would not have paid his legal costs, the other guy would have covered them.
    - akronim 15y ago
      No. Once his own costs reached a limit where he had to settle, the other side would have had similar if not greater legal costs racked up. Continuing at that point is a double or nothing bet, which might make sense if the odds are in your favour (i.e. you think you'll win) and you can diversify over many such bets. But for a single individual in a single case, it's a huge risk.
      - afterburner 15y ago
        The other side was rich. The defendant was not. Don't you think that makes a difference? They weren't on equal footing, that's the whole point.
jianshen 15y ago
I've always been curious about how many Etsy-type stores sell video game trinkets referring to classic video games without asking for permission from the original game makers. Somebody recently told me that the general rule is "if they havent't made a similar product in the market, then go right ahead", which didn't comfort me much. Are there any landmark cases that have set good precedence for fair use online beyond allowing for parodies of works?
BasDirks 15y ago
When you sell things make sure they are yours, or you'll get burned by the decadent dinosaurs they belong to.
jellicle 15y ago
Every time copyright comes up, there are always small, independent artists/programmers/writers who chime in and say "I love copyright! It protects me!" and every time I point out, no, actually, you only get screwed by copyright maximization. I want to forcefeed this article to all of them.
marckremers 15y ago
That's your new cover right there: http://marckremers.com/hn/md.png http://marckremers.com/hn/md.png
SoftwareMaven 15y ago
I know this will be an unpopular viewpoint here, but the pixel representation looked really similar to the original, to the point that I wouldn't be able to tell the difference at 5 feet. I appreciate what the author was trying to accomplish, and my geek side totally understands the transformative nature, my photographer side thinks it is too close, especially for a commercial work. I don't think this was a case of "Internet entitlement", but rather a case of two cultures clashing, which is unfortunate, because the cover fit the album so well.
- Tiomaidh 15y ago
  I agree entirely. I've seen some remarkably creative, unique, quality pixel art, but this was not it. When I saw it, my first thought was, "Well, I guess it was kinda creative to use a cross pattern on the tie instead of diamonds..." Apart from that, the only difference is the resolution.
njharman 15y ago
Definitely seems clearly to be a derivative work and a copyright violation.
- wnoise 15y ago
  Yes, it's clearly a derivative work. That doesn't necessarily make it a copyright violation. My reading of the fair use exceptions make this clearly not a copyright violation. The problem is that you can't know for certain until a judge agrees or disagrees. The guy folded, yes, but not because he thought he would lose, but because even fighting and winning would be too expensive.
  - njharman 15y ago
    Read my original "... derivative work and copyright violation" as two distinct statements not cause and effect. Looks to be to be clearly a derivative work and clearly a copyright violation based on it not meeting any fair use requirements.
    - wnoise 15y ago
      There are no specific requirements to be considered fair use. There are four factors that are weighed: the purpose and character of the new work, the amount copied from the old work, the impact on the market for the original work, and the nature of the old work. None of them are binary yes/no requirements. The purpose of the new work is commercial (point against fair use) but it's also a transformative commentary on the old work, bringing new aesthetics to it (point for it). (In fact, one of Maisel's complaints seems to be that it has been transformed [1]). The amount of the old work used is the entire work (point against it). The impact on the market for the old work is minimal -- it's not an adequate substitute (point for fair use). The final factor, the character of the old work is a factor that is very hard to predict how a court will analyze. One common distinction is "fact or fiction". A photograph of person is closer to the factual category than fiction, though the category division doesn't make much sense to apply here. It is well known and iconic, so this use doesn't "preempt" the first public presentation, which some courts have considered as relevant. Overall, I'd say this factor argues in favor of fair use, though not necessarily strongly. It clearly meets some fair use factors, contra your claim. Enough? Well, as I said, that's not going to be determined outside a courtroom. [1]: Maisel told his lawyer that he would never have granted a license for the pixel art. "He is a purist when it comes to his photography," his lawyer wrote. "With this in mind, I am certain you can understand that he felt violated to find his image of Miles Davis, one of his most well-known and highly-regarded images, had been pixellated, without his permission, and used in a number of forms including on several websites accessible around the world."
jordanb 15y ago
It strikes me that very few people would have seen the remixed artwork had Maisel not insisted on extracting his "pound of flesh" from Andy. Now it's going to be spread all over the internet -- along with the story of Maisel's self-righteous ego. Could this be a new variation of the Streisand Effect? Lawyering up on some inconsequential copyright violation and getting your poor behavior broadcast across the entire internet? Should it be the Maisel Effect or does Sony already have trademark?
mgeraci 15y ago
For what it's worth, if any of you haven't heard Kind of Bloop yet, it is fantastic. Seems like HNers are basically the target market for it, too. Coming from knowing Kind of Blue very well, it's fascinating to hear what other people take from Miles' songs, and I've caught things from Kind of Bloop that I had never noticed in the original. Highly recommended.
JacobIrwin 15y ago
Valid point are made throughout. I suppose we must keep in mind the balance that must be maintained: 1.) Protecting the rights of artists - those who dedicate their resources to CREATE 2.) And along the same lines, offering the freedom of expression to newcomers; re-creating art through new mediums.
kanamekun 15y ago
Andy could do a new Kickstarter to fund a short documentary about digital reinterpretations of copyrighted works. The profits could be used to raise money to pay off the settlement. If you're reading this Andy: just make sure that you don't use the same image in your documentary! :-)
andrewf 15y ago
Is anyone brave enough to put the most-degraded image (the four squares) on a tshirt?
puredemo 15y ago
It was fair use and you shouldn't have settled. Simple as that.
Produce 15y ago
Anyone who's ever created anything knows that it has little to do with money and everything to do with love. The love of the action, the love of seeing other people appreciate it and the love of self-expression. Copyright enforces monopolies, it does not protect the ability or motive to create.

611 points by joshuacc 15y ago

At $8300 a month for http://decknetwork.net/ http://decknetwork.net/ advertising, it is compelling that this sort of content can both 1) have this kind of viral platform for current issues surrounding intellectual property as it is now and 2) allow you to support and/or be complicit in the ongoing battle.

roel_v 15y ago
I'm not getting it, what's the connection between that website and the post?
- th0ma5 15y ago
  That is the ad network for the site.
  - roel_v 15y ago
    OK so I'm dense I guess, but how does that relate to your two points? Is the OP more or less credible for using that ad network? I assume you feel less somehow?
    - th0ma5 15y ago
      No no no, Andy is amazing and does wonders for promoting the interesting and relevant out on the net every day ... I'm just trying to bring up the point that he has an art, he is paid for that art, and I think that's a subtly in a lot of fair use issues. Arguably the iconic nature of the photograph was at least in part, because of there being sponsorship of the site capitalized on. It's fair use, I'm sure, or at least it should be, I'm not a lawyer... the point I guess I'm making is what I posted which is to elaborate 1) that money is changing hands during these publishing acts 2) you can support this sort of fight or possibly be complicit if it is not deemed a fair use, and to me that's just a weird spot to be in, and I wonder what those lines are, or what they should be, or some way to codify fair use, or a way to codify that it shouldn't be codified, or some way to monetize the problem, and hence conversely a big part of that is that fair use should be incredibly clear in cases where there is no profit motive, but this is a sponsored site, so that specific aspect of my own inner debate doesn't apply, and really should it make a difference?
      - sorbus 15y ago
        Wait, so what does the ad network have to do with the fact that he's selling an album on a website with no advertisements?
        th0ma5 15y ago
        I see advertisements on his website, perhaps you run an adblocker or something? Specifically I see an ad for an upcoming conference. Plus the selling of it then I guess gets to the heart of the transaction point anyway, I thought the album was free.
        sorbus 15y ago
        He's selling the album on another website - there's a link towards the end of his post ( http://kindofbloop.com/ http://kindofbloop.com/ ). I admit that I do have an adblocker, but I still don't see how it's relevant that he has advertisements on his blog - unless you're saying that he's profiting off this blog post, and that that affects his opinion?
        th0ma5 15y ago
        Hrmmm... yes, but it doesn't affect his opinion, it merely exists, and should be considered related to the facts of his former threat of a case against him, or or should be a situation that is considered a subtle something ... anyway, someone already put my point much better than this, see elsewhere.
jonknee 15y ago
"The thirty-three ads each month are in rotation across all fifty-six sites and services." I'd imagine it's not an entirely even split either...
th0ma5 15y ago
Not sure why I'm being down voted, just trying to acknowledge that there is a flow of money surrounding this issue?
- leftnode 15y ago
  What are you not understanding? He's an influential blogger who has ads on his site and is writing about something that happened in his life. There's a flow of money around every Tech Crunch article that is posted here, yet I don't see the same comments.
  - th0ma5 15y ago
    Step 1. Challenge fair use Step... Step 2. Be challenged back .... Step 2a, keep covering the fight ... Step 3. Profit. I think Boing Boing has or still does this. I don't see Tech Crunch really doing this, they're more just like Fox in the matter and blurring the lines of the "challenge" as trying to assert opinion as fact, and they bemoaning that when challenged. I don't think my day is complete without seeing links from him, but I mean, this same thing happened with Danger Mouse, and that was really testing fair use, and I don't think was even trying to, but this was another copyright issue promoted by his site. So, I mean, I'm not commenting on the substance of the specific settlement, I'm talking about the whole issue the post is describing as to what went on. He promoted a derived work, often does, it was challenged, but didn't fight it but settled, and yes that's an issue that should concern us all because that's the current fight over copyright. Part of that fight includes was the value of the creative work directly the result of the success of the original material, without any value added or interpretation of new art, and I would say sure. I agree with the fight, and I agree that works like this should be cool to do. But you put your shoes on of the rights holder of the original, and I think it is very clear that a guy makes money, with essentially low-res photo of my client's property. Now, that's completely ignorant of the 8-bit technology social history hat tip, I know, but I guess I don't know how clearer to put it that I'm not coming out of left field with trying to provide some kind of subtle issue around the subject that I don't read very much about... has challenging fair use for community ideals become just another method of capitalization? Is that why the lawyers thought that their claims would be honored in court? Because that's the only thing I could barely think could be an issue for anyone. Anyway... was hoping to see at least some kind of critical analysis. Perhaps it is forth coming by someone who can articulate maybe what I'm after better. Andy rocks, tho, for sure.

Confusion 15y ago

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. "He is a purist when it comes to his photography," his lawyer wrote. "With this in mind, I am certain you can understand that he felt violated to find his image of Miles Davis, one of his most well-known and highly-regarded images, had been pixellated , without his permission, and used in a number of forms including on several websites accessible around the world." The pixelated version was incredibly appropriate for a chiptune tribute and anyone that claims to care about art should applaud such a use of an imitation, mockup or inspired work. I don't like artists who think their work is so special that any change ruins it. 99.999% of people don't care about his original 'masterpiece' in any way, but a few more may care now that there was a different rendition of it. Artists should recognize there is a bit of luck involved in them and their art becoming famous. For every well known great artist, there are ten who were better, but simply didn't become known.

nettdata 15y ago
And yet it should be the artist's choice on how THEIR work is used, regardless of how you, or 99.999% of the people feel. Personally, I find the overly-developed sense of self-entitlement to be way more unlikable than an artist's overly inflated ego.
- CountSessine 15y ago
  And yet it should be the artist's choice on how THEIR work is used, regardless of how you, or 99.999% of the people feel. For the original photograph? Yes, of course. For a derivative work, which the pixel-art reproduction clearly is in my mind? Of course not.
  - nettdata 15y ago
    Do you code? How about you send me the source to your best known, commercial product, and then I'll reformat the source, call it a derivative work, and sell it. That's cool, right? Of course not. I see this as being not that different. Which really brings up the key to this, which is what is considered "derivative". Everyone has a different concept of it, I'm sure, and it's not cut and dried. To me, simply taking a picture someone else took, and digitizing or pixellating it, is not something that I would consider "derivative". I liken it to sampling music to be used in a "derivative" work. In the vast majority of those cases, the samples have to pass through the proper licensing and be released for use before they are resold. And while the guy might not have created the content of the picture, he spent the time and effort to actually go and take the picture. Doesn't matter if he spent a month setting up the content and lighting to get the perfect shot, or sat on his cel-phone camera and it took a great picture as a result of blind luck, it's his picture. If he wants to sell that picture for profit, and has cleared the rights of the content of it, that is his prerogative. I think that the pixellated image would require something similar to a mechanical license that you find in the music industry, where someone creates the song, but then gives the rights for another band to record and sell their version of it.

VMG 15y ago

mirror?

Stwerner 15y ago
http://webcache.googleusercontent.com/search?sclient=psy&hl=en&authuser=0&biw=1440&bih=805&source=hp&q=cache%3Ahttp%3A%2F%2Fwaxy.org%2F2011%2F06%2Fkind_of_screwed%2F&pbx=1&oq=cache%3Ahttp%3A%2F%2Fwaxy.org%2F2011%2F06%2Fkind_of_screwed%2F&aq=f&aqi=g5&aql=&gs_sm=e&gs_upl=656l3763l0l7l5l0l0l0l0l258l810l2.1.2l5 http://webcache.googleusercontent.com/search?sclient=psy&#38...
sbhat7 15y ago
http://waxy.org.nyud.net/2011/06/kind_of_screwed/ http://waxy.org.nyud.net/2011/06/kind_of_screwed/

deleted 15y ago

[deleted]

smackfu 15y ago

Maybe if it wasn't also being used for an album cover it would have flown under the radar more. Also using photos as your source material gets you more attention since photographers are constantly having to track down copycats.

pinko 15y ago

The "extra credit" question at the end is a fascinating one, I think. I would /love/ to hear the opposing side's answer, since we know the first image is not acceptable to them and presumably the final image would have to be.

skue 15y ago
Well, just because it's hard to decide exactly where to draw the line doesn't mean he can't cross it. I actually had the opposite take on this question. As I read, I wondered where the author would draw the line -- a grayscale version, one with pixels half as small as his, a 16-bit version? He didn't include intermediate images between his and the original, just between his and the extreme. The truth is that his version just wasn't that different than the original iconic image. He used the image in exactly the same context, derived value from the similarity (that was the whole point), and derived revenue from the sales. So how is this okay?
- zmmmmm 15y ago
  > I wondered where the author would draw the line I wondered the same thing. For example, what if I took his 8-bit music and painstakingly recreated by hand a 4 bit version by exactly copying the notes from his version. And what if that started appearing all over the internet and swamped the references to his own work? I think he'd be pissed off. I feel bad for him because he did go out of his way to do the right thing on all other counts and this was an oversight - receiving a $32k punishment for a simple mistake is a tough break. However from his description he knew up front he was trading on a very fluid definition of fair use and he had to know it was a risk.
smackfu 15y ago
OTOH, If you started that question from the original, I bet most people would draw the line below the pixelated version that was sued over. And most people would draw a line at some point, so the idea that it is clearly fair use seems very debatable.

natural219 15y ago

This is way off-topic, but that last frame of the extra credit looks like a beautiful color scheme for a website. Not that I'm going to steal it, you know, or anything..

hammock 15y ago
That inherent beauty and balance which you pick up on is a part of why the original photograph is such a great one.
- Lagged2Death 15y ago
  Speaking as an amateur photographer, that strikes me as ridiculous. Look what happens if you reduce the original picture to four pixels algorithmically: http://i.imgur.com/q2z3w.png http://i.imgur.com/q2z3w.png Point being, the final four-squares image in the pixel series bears no relationship at all to the original photograph beyond a color scheme which is only reminiscent of (not identical to) the original. And the color scheme wasn't the original photographer's invention, anyway. If there's any "inherent beauty" or "balance" in that last picture, with just four squares of color, it was put there by the artist who made the series of pixel versions.
  - hammock 15y ago
    I was referring to the colors in the original picture, not the four-square thing. The four-square is merely a distillation of the original photo (and no it is not algo-correct but who cares?)

Spines11 15y ago

It sure seems like fair use to me, especially since he had his friend draw it, rather than deriving it from the original by putting the original through a pixelating program or something. It's sad that since the potential losses of going to court are so high, most people have no option other than to settle.

Fooman 15y ago
Just because a reproduction is by hand versus machine doesn't change the fact that it is a copy.
- CamperBob 15y ago
  What are your thoughts on the question at the bottom of the blog entry, where he gradually reduces the 'copy' to a 2x2-pixel mipmap and asks where the bright line of copyright should be drawn?
  - varjag 15y ago
    Reductio ad absurdum. Despite the Latin name, it's not a proof technique.
    - ajuc 15y ago
      Yes it is. http://en.wikipedia.org/wiki/Reductio_ad_absurdum http://en.wikipedia.org/wiki/Reductio_ad_absurdum Examples in math abounds.
      - varjag 15y ago
        You live and you learn. I only knew it as proof by contradiction, didn't realize it's actually the same thing.

figital 15y ago

Now you'll be sued by Yahoo: http://www.delicious.com/favicon.ico http://www.delicious.com/favicon.ico

Kwpolska 15y ago
http://en.wikipedia.org/wiki/Threshold_of_originality http://en.wikipedia.org/wiki/Threshold_of_originality He willn't.

uptown 15y ago

So he agrees to a settlement where he pays a fine, and agrees to never use the artwork again … and then he goes and uses the same image as well as a variety of other variations of that image as part of his blog-post on a website at least partially supported by ads?

ceejayoz 15y ago
> (Note: This post was reviewed by both my and Jay Maisel's legal counsel.)
FiddlerClamp 15y ago
In that case, I'd say fair use applies.
deleted 15y ago
[deleted]
potatolicious 15y ago
The laws covering editorial usage (for which a blog certainly applies) are very different than the laws surrounding putting a derivative work on a commercial product and selling it.

Fooman 15y ago

If I took his album "Kind of Bloop" and compressed it by 50%, could I start selling it as my own? Andy sez that is cool. I don't see Andy's side at all. The artwork is a copy, used for commercial purposes and without permission. Copyright restricts copying. This isn't fair use. It isn't a parody or an even an homage – which can blur the line.

nollidge 15y ago
> If I took his album "Kind of Bloop" and compressed it by 50%, could I start selling it as my own? Not the same thing at all. Look closer, like at the tie. They didn't just reduce the color palette and resolution. He describes the process of creating it: > I tried to draw it myself, but if you've ever attempted pixel art, you know how demanding it is. After several failed attempts, I asked a talented friend to do it.

gallerytungsten 15y ago

You can read the seeds of the downfall in his own words: "I went out of my way to make sure the entire project was above board, licensing all the cover songs from Miles Davis's publisher..." All well and good; or mostly well and good, as he didn't seek to license the cover shot. Therefore, the "entire project" wasn't "above board" and the statement above is disingenuous. So why didn't he try to license the cover shot? Apparently, he thought that wasn't necessary. Leading to this conclusion: "If you're borrowing inspiration from any copyrighted material, even if it seems clear to you that your use is transformational, you're in danger. If your use is commercial and/or potentially objectionable, seek permission." As a visual artist, I don't like getting ripped off. It's happened any number of times, on a small scale. So I can sympathize with Maisel, even if he comes across as a hardass. I can also sympathize with Baio, but not as much, because he explains pretty clearly how he did it to himself. I should also note that the US Congress ratified the Berne Copyright Convention, which includes protection of the "moral right of the artist." This includes explicit protection against someone else modifying one's work. One person's "transformation" is another's "mutilation."

amirmc 15y ago
So why didn't he try to license the cover shot? Because he believed (and still believes) that it was fair use: "My lawyers and I firmly believe that the pixel art is 'fair use' and Maisel and his counsel firmly disagree."
- natch 15y ago
  Even though I also believe that it is fair use, I would still defer to the artist's judgment on this, because it is their right to decide where the line gets drawn, not mine. That's why it's smart to ask for permission for these kinds of things. Two sides disagree - the tiebreaker should be the fact that one side created the original work on which the clearly recognizably derived work was based. That side gets more weight.
  - timmaah 15y ago
    Huh? Tiebreaker goes to the creator? Then you would have no fair use, parody or any of the sorts.

tensafefrogs 15y ago

Wow. To add some other interesting info to this, Jay Maisel is the owner of (and lives in) a large building in lower manhattan 190 Bowery. If you've ever walked past this building you'd recognize it as it's covered in street art all the time, and is constantly changing as more art is added and falls apart. I always though Jay was a good guy for letting artists use that space (even if it was a silent agreement), but maybe that's not the case... Not that it directly involves this case of fair use, but that building is worth millions of dollars, so Jay was doing this for the sake of "artistic purity" or whatever you want to call it, not because he's a starving photographer... An article about his building a few years back: http://nymag.com/realestate/vu/2008/09/50481/ http://nymag.com/realestate/vu/2008/09/50481/

thomasgerbe 15y ago
"Not that it directly involves this case of fair use, but that building is worth millions of dollars, so Jay was doing this for the sake of "artistic purity" or whatever you want to call it, not because he's a starving photographer..." I could see it being a mix of both. I don't think it makes him less of a good guy.
tptacek 15y ago
The magazine leads one to believe that the "street art" isn't really condoned (and may actually be a legal hassle for him), it's just inevitable in that area of Manhattan. Gruber made, I think, a somewhat asinine point about this being an example of how spectacularly well-off Maisel is and how much of a dick that makes him for enforcing his IP rights. But Maisel bought the place for a pittance in the '70s and doesn't collect rents on it. I'm sure he's much better off than Baio, but he's not a mogul.
- jonknee 15y ago
  He could be a mogul though, that building would sell for many tens of millions. He's a very wealthy man.
  - deleted 15y ago
    [deleted]

noahc 15y ago

Would have putting this project into its own LLC (or other business structure) have been beneficial in anyway?

grellas 15y ago

The legal process will grind you in any serious dispute against a determined adversary. Get a supremely optimal outcome and get the case dismissed right out the gate because it is legally defective even assuming all the facts alleged are true? Sticker price: $10K and up (more likely $25K to $50K to make it definitive after several opportunities to amend are given to the adversary). Go through discovery to find out what witnesses will say on deposition, dig through all key documents, and then move for and get a summary judgment before trial by which a case is tossed on grounds that the law allows only one result based on material facts that are undisputed bearing on the legal point? Sticker price: $100K and up, with a year or more of grief thrown in as a bonus. Go through trial and get vindicated by a judge or jury based on a complete presentation of evidence? Sticker price: $250K and up, after a year or two (or more) of wrangling. And don't forget the appeals. Most cases never get to trial and cost is a major factor prompting litigants to settle even though they are not particularly happy with an outcome. Charles Dickens, though he exaggerated for dramatic effect, got the spirit of this right in Bleak House (http://en.wikipedia.org/wiki/Jarndyce_and_Jarndyce http://en.wikipedia.org/wiki/Jarndyce_and_Jarndyce), and little has changed since. This, by the way, doesn't mean that you can't defend against cease-and-desist demands. Costs cut both ways. But it is sad how many times parties who are right nonetheless must fold because the costs of engaging (monetary and otherwise) are just not worth it.

imajes 15y ago
It's cliché, but totally on point: Only sue if you have nothing to lose, or your opponents are ridiculously rich. (preferably: both).
- daychilde 15y ago
  If you have nothing to lose, you probably can't afford lawyers in the first place. Not quite your point, I know, but it seems to apply here.
  - InclinedPlane 15y ago
    If you're going after a target with deep pockets you will have no problems with lawyers who will work for a share of the settlement. Edit: changed my wording to be more accurate.

swilliams 15y ago

What would the reaction be if, for the sake of argument, EMI took a photo that a small independent photographer made, ran it through what looks like a basic Photoshop filter, and slapped it on the next Coldplay album? Internet outrage right? And then what would happen if the photographer sued EMI and Coldplay, and won a $32K settlement? I'm guessing the Internet would either be satisfied or angry that $32K is too little for such deep pockets. I understand and agree that Jay was too vicious in this, but how is he in the wrong again?

jonknee 15y ago
It's not too surprising that we often root for the little guy, but this wasn't a Coldplay album or a Photoshop filter. This was a very limited release art project to celebrate Miles Davis, early computers and talented electronic musicians. The case is especially interesting because no large faceless corporation was involved, it was one (very wealthy) artist going after other (not very wealthy) artists.
- swilliams 15y ago
  My understanding of the argument is that someone, or some entity, with a certain amount of money should not sue a significantly smaller person for another amount of money that would cause a hardship on the smaller person. Is there a point at which those values of money make it acceptable to take some one else's work, alter it, and re-sell it? If Maisel had settled for $10,000 would we be having this issue? What about $1000? Nothing at all? Litigation is unfairly tilted towards those with money. Fortunately for Jay he has some. He obviously felt that Kind of Bloop's cover unfairly used his art, so he sued. I am assuming that the settlement will cover _his_ legal costs. My wild-ass guess is that $32.5K would be about right to cover filing, and negotiating a settlement with a good NY attorney. So, if an artist feels that their work was ripped off (whether or not that is ACTUALLY the case), and they have the means to do so, do they not have the right seek litigation against the offender?
  - jonknee 15y ago
    It's not an argument, I'm just stating that it's not surprising to see push back when a wealthy person or organization goes after someone who's not wealthy. Regardless of the merit (I believe it's fair use), Maisel was not harmed by this remixed album. Purely sending a cease and desist would have done the trick, there's no reason to try and squeeze cash out of it. That's why I think he comes out looking like a dick.

ChrisLTD 15y ago

It's ridiculous that a photograph from 50 years ago is still under copyright. Copyright law is supposed to encourage artists to create new work. However, it's been perverted to let artists (but mostly large corporations) milk money from a single cow in perpetuity.

Semiapies 15y ago
I went into this article expecting to see some horrible abuse, but...this is silly. "Copyright law is supposed to encourage artists to create new work" By discouraging other people from reproducing their work without permission and/or compensation, yes. Someone got jumped on for reproducing a work at a lower quality. Whether it was a photoshop filter and/or hand placement of a few pixels doesn't matter; it was recognizably reproducing the work. This wasn't some new piece of art that got them sued, this was a particular reproduction of a 50-year-old photograph. There's a significant difference between something like this and, well, covering a song as a chiptune. If you cover a song and try to sell that, you have to make arrangements to compensate the songwriter or rights owner. This is just appropriating an original work and hoping nobody notices.
- jeffgreco 15y ago
  You didn't address his point at all. Is it really necessary to protect these works for 50, 60, 70 years?
- scarmig 15y ago
  No, no, a thousand times no. It's not "reproducing a work at a lower quality." That would imply that the artist was trying to copy the original but could only get those dang pixels because all he had was a 1980s era computer and couldn't do any better. That's clearly not the case. It's a different work of art inspired by the original, meant to evoke it but clearly apart in purpose, aim, and audience. It's like saying that "Pride, Prejudice, and Zombies" was a poor attempt at copying "Pride and Prejudice."
- lutorm 15y ago
  Yeah, I'm really sure that 50 years ago the photographer thought "F. it, if I take this picture, in 50 years some dude will be able to make a pixelated impression of it, so it's not worth my time. Oh no, wait. Copyright will protect my work from that, so I'm good to go." The purpose of Copyright law is to "promote the Progress of Science and useful Arts", not make creators feel like they are entitled to total control over their work. The question is whether the progress of the Arts, as a whole, is promoted by preventing people from creating derivative works. You act like copyright is all promotion, but there is of course an opposite effect, too, by preventing people from creating derivative works. Why do you think the copyright clause explicitly specifies that copyrights are "for a limited time"?

aptsurdist 15y ago

A couple little images that are hopefully a show of support: http://aptsurdist.wordpress.com/2011/06/23/a-story-by-waxy-org-kind-of-screwed/ http://aptsurdist.wordpress.com/2011/06/23/a-story-by-waxy-o...

6ren 15y ago

It's unpopular, but I tend to side with the creator in copyright cases. I like creators. But in this case, they're both creators. One point: I think a mechanically produced low-resolution version of the image would not be "transformational". The image here does look mostly like that - an exception is the tie, which is rendered as if flat, to preserve the pattern. I think if all or most or enough of it was like that - a sort of cubist version - it would be transformational. It really sucks to pay tens of thousands of dollars. And the experience itself sucks even more. The guy should have just got an injunction, not damages etc. Though I guess, many had been sold already - it was too late to prevent the problem. The only justification I can think of for the artist is to cover his own legal costs. I wonder if he would have just asked Maisel to stop, with no lawyers involved, if he'd known in time? OTOH, Maisel firmly believes he was in the right - so I also wonder if he would have stopped? Maybe lawyers - and their costs - had to be involved

afterburner 15y ago

I wonder here if a "loser pays" rule, where the loser pays the other party's legal bill in part or in full, would have encouraged the author to pursue his defense longer.

akronim 15y ago
I'm guessing he did pay.
- afterburner 15y ago
  He settled, and he did so because of his rising legal costs, which is to say even if he won he would still pay those large legal costs. Under loser-pays rules, if he'd pressed on and won, he would not have paid his legal costs, the other guy would have covered them.
  - akronim 15y ago
    No. Once his own costs reached a limit where he had to settle, the other side would have had similar if not greater legal costs racked up. Continuing at that point is a double or nothing bet, which might make sense if the odds are in your favour (i.e. you think you'll win) and you can diversify over many such bets. But for a single individual in a single case, it's a huge risk.
    - afterburner 15y ago
      The other side was rich. The defendant was not. Don't you think that makes a difference? They weren't on equal footing, that's the whole point.

jianshen 15y ago

I've always been curious about how many Etsy-type stores sell video game trinkets referring to classic video games without asking for permission from the original game makers. Somebody recently told me that the general rule is "if they havent't made a similar product in the market, then go right ahead", which didn't comfort me much. Are there any landmark cases that have set good precedence for fair use online beyond allowing for parodies of works?

BasDirks 15y ago

When you sell things make sure they are yours, or you'll get burned by the decadent dinosaurs they belong to.

jellicle 15y ago

Every time copyright comes up, there are always small, independent artists/programmers/writers who chime in and say "I love copyright! It protects me!" and every time I point out, no, actually, you only get screwed by copyright maximization. I want to forcefeed this article to all of them.

marckremers 15y ago

That's your new cover right there: http://marckremers.com/hn/md.png http://marckremers.com/hn/md.png

SoftwareMaven 15y ago

I know this will be an unpopular viewpoint here, but the pixel representation looked really similar to the original, to the point that I wouldn't be able to tell the difference at 5 feet. I appreciate what the author was trying to accomplish, and my geek side totally understands the transformative nature, my photographer side thinks it is too close, especially for a commercial work. I don't think this was a case of "Internet entitlement", but rather a case of two cultures clashing, which is unfortunate, because the cover fit the album so well.

Tiomaidh 15y ago
I agree entirely. I've seen some remarkably creative, unique, quality pixel art, but this was not it. When I saw it, my first thought was, "Well, I guess it was kinda creative to use a cross pattern on the tie instead of diamonds..." Apart from that, the only difference is the resolution.

njharman 15y ago

Definitely seems clearly to be a derivative work and a copyright violation.

wnoise 15y ago
Yes, it's clearly a derivative work. That doesn't necessarily make it a copyright violation. My reading of the fair use exceptions make this clearly not a copyright violation. The problem is that you can't know for certain until a judge agrees or disagrees. The guy folded, yes, but not because he thought he would lose, but because even fighting and winning would be too expensive.
- njharman 15y ago
  Read my original "... derivative work and copyright violation" as two distinct statements not cause and effect. Looks to be to be clearly a derivative work and clearly a copyright violation based on it not meeting any fair use requirements.
  - wnoise 15y ago
    There are no specific requirements to be considered fair use. There are four factors that are weighed: the purpose and character of the new work, the amount copied from the old work, the impact on the market for the original work, and the nature of the old work. None of them are binary yes/no requirements. The purpose of the new work is commercial (point against fair use) but it's also a transformative commentary on the old work, bringing new aesthetics to it (point for it). (In fact, one of Maisel's complaints seems to be that it has been transformed [1]). The amount of the old work used is the entire work (point against it). The impact on the market for the old work is minimal -- it's not an adequate substitute (point for fair use). The final factor, the character of the old work is a factor that is very hard to predict how a court will analyze. One common distinction is "fact or fiction". A photograph of person is closer to the factual category than fiction, though the category division doesn't make much sense to apply here. It is well known and iconic, so this use doesn't "preempt" the first public presentation, which some courts have considered as relevant. Overall, I'd say this factor argues in favor of fair use, though not necessarily strongly. It clearly meets some fair use factors, contra your claim. Enough? Well, as I said, that's not going to be determined outside a courtroom. [1]: Maisel told his lawyer that he would never have granted a license for the pixel art. "He is a purist when it comes to his photography," his lawyer wrote. "With this in mind, I am certain you can understand that he felt violated to find his image of Miles Davis, one of his most well-known and highly-regarded images, had been pixellated, without his permission, and used in a number of forms including on several websites accessible around the world."

jordanb 15y ago

It strikes me that very few people would have seen the remixed artwork had Maisel not insisted on extracting his "pound of flesh" from Andy. Now it's going to be spread all over the internet -- along with the story of Maisel's self-righteous ego. Could this be a new variation of the Streisand Effect? Lawyering up on some inconsequential copyright violation and getting your poor behavior broadcast across the entire internet? Should it be the Maisel Effect or does Sony already have trademark?

mgeraci 15y ago

For what it's worth, if any of you haven't heard Kind of Bloop yet, it is fantastic. Seems like HNers are basically the target market for it, too. Coming from knowing Kind of Blue very well, it's fascinating to hear what other people take from Miles' songs, and I've caught things from Kind of Bloop that I had never noticed in the original. Highly recommended.

JacobIrwin 15y ago

Valid point are made throughout. I suppose we must keep in mind the balance that must be maintained: 1.) Protecting the rights of artists - those who dedicate their resources to CREATE 2.) And along the same lines, offering the freedom of expression to newcomers; re-creating art through new mediums.

kanamekun 15y ago

Andy could do a new Kickstarter to fund a short documentary about digital reinterpretations of copyrighted works. The profits could be used to raise money to pay off the settlement. If you're reading this Andy: just make sure that you don't use the same image in your documentary! :-)

andrewf 15y ago

Is anyone brave enough to put the most-degraded image (the four squares) on a tshirt?

puredemo 15y ago

It was fair use and you shouldn't have settled. Simple as that.

Produce 15y ago

Anyone who's ever created anything knows that it has little to do with money and everything to do with love. The love of the action, the love of seeing other people appreciate it and the love of self-expression. Copyright enforces monopolies, it does not protect the ability or motive to create.