36 ms·

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 t

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.
    - CountSessine 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. It's completely different. Look at clauses 1 & 4 of the Copyright Act as sited in the article. The spirit of this 'derivative work' concept rests on the contribution of the derivative work to the general state of the art (does it add anything?), and the effect on the existing works (does is take food out of the original artists's mouth?). Taking source code and recompiling it and redistributing it without making any contribution yourself is completely outside the idea of a derivative work. Even modifying it in some significant way, if it deprives me of my livelihood, probably doesn't work. Pixelating a Miles Davis picture is absolutely a derivative work, especially as an adjunct to an 8-bit rework of one of the man's albums. There's no substitutability at all between this pixelated version and the original picture - it would have exactly 0 (zero) effect on the demand or availability of the original photo of Davis. 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. Yes - and I'm against requiring licensing for music resampling as well. The test should be substitutability and contribution, not establishing arbitrary control over the way intellectual property is allowed to evolve and who is allowed to reshape it.
    - enneff 15y ago
      A more apt comparison: Say you're a game programmer and you wrote an addictive platformer for the 486-era IBM PC. It's a game that brings warm nostalgia to the average 30-something gamer. It's the best game you ever wrote, but a lot of time has passed since then. Some guy comes along and writes a remake for the ZX Spectrum 48k and releases it for a nominal charge. How do you feel? What can you do?
    - Confusion 15y ago
      You know, in forty years, when my reputation is firmly established and your reformatting doesn't threaten my commercial interests in any way, I will send you my best code. See my other comments for why these kinds of analogies are too far off to make a useful point.
  - chernevik 15y ago
    As art, it doesn't seem particularly interesting or clever or striking. Which is really too bad, because Davis of all people might have appreciated a roughened, technially imperfected image that somehow did something new. But this looks to me like a very low-resolution duplicate. Only on inspection do I see elements that say "pixel", and these aren't particularly important or interesting. All the examples cited by the OP are considerably more different from the original than the image in question. To get more clearly into the category of "fair use", I would think the art would need more significant differentiation. To an unexpert eye, these might be things like: - Variation of the palette into something typical of an NES game - Revisit the perspective to make it more two-dimensional, as an older video game would (the image clearly depicts Davis at an angle in a way we wouldn't have expected in an 80s game console) - More exaggerated usage of "pixelized" elements - Introduction of elements / themes /motifs from other pixel art pieces - Turn the image upside down, put curious, "where the hell am I?" look on Davis' face - Pixelized chipmunk - Pixelized Thelonious Monk If the idea here wasn't to invest a lot of time into the image itself, and have some that plays the marketing role of 1950s cover art, then do something evocative but more clearly distinct. Finding the line between "derivative" and "creative" is not a computable problem. But it gets a lot easier with the quality of the art. But it seems to me the photographer has a point. Especially when I consider that the image real does look like a low-res JPEG -- if he tolerates that, the next question will be the difference between this and an actual low-res JPEG. Now, could he have been nicer about it? I would certainly think it better to start with "hey knock it off". But maybe I don't everything that went before the settlement.
- nazgulnarsil 15y ago
  don't feed something to the leviathan if you can't stand to see it get chewed up.
- tbrownaw 15y ago
  So what exactly entitles someone to exclusive control/ownership over a particular arrangement of bits, just because they happened to be the one to produce the first copy of that arrangement?
  - aristus 15y ago
    Copyright law. And in Europe at least a deeper moral right to be identified as the author of a work and to have a say in how it's used. For example, I would be very upset if my work was used in advertising, or a political campaign that I violently disagreed with. It's not a black and white issue and that's why this went to the lawsuit stage.
  - deleted 15y ago
    [deleted]
    - wingo 15y ago
      The question is ill-posed. In Europe there is a legal concept of moral rights, which does not exist in the US.
      - dhs 15y ago
        It does, at least for visual artists: http://en.wikipedia.org/wiki/Visual_Artists_Rights_Act http://en.wikipedia.org/wiki/Visual_Artists_Rights_Act
  - benologist 15y ago
    "bits" is a very disingenuous way to look at creative work. The end product is "just" 1s and 0s in the same sense a Porsche is "just" atoms.
    - jonknee 15y ago
      This would be like making a Porsche out of Legos for an art project and then getting sued. No one is confusing one with the other.
    - 15y ago
- halo 15y ago
  Should it? Why?
  - DrJokepu 15y ago
    Because it's the product of his or her hard work? I really don't understand the question.
    - CamperBob 15y ago
      What are your thoughts on the question he asks at the bottom of the blog entry ("Where would you draw the line?")
- eftpotrm 15y ago
  And the intersection of these two viewpoints is where Fair Use doctrine comes in. I'm not even remotely a lawyer and this isn't my country's legal system anyway, but the case as to whether this was covered by fair use was felt to be arguable by both sides. The real story here isn't 'unreasonable artist sued me' but 'lawsuits used as scare tactic'.
  - devonrt 15y ago
    Was it really a scare tactic in this case, though? The copyright holder felt that his copyright had been infringed, so he sent a cease and desist, backed up with the threat of legal action. What should the copyright holder have done instead? Sent a polite note? Threaten violence? Like it or not the court is where Fair Use is decided. Just because the threat of a lawsuit is scary doesn't always mean it's being used as a scare tactic. The real, real story here is, as the author asks, where do you draw the line? Personally I don't think the author had much of a leg to stand on given that the image was being used to sell an album and was easily recognizable as a simulacrum of the original work.
    - jonknee 15y ago
      It wasn't a cease and desist--Andy had to pay Maisel $32k for him to go away. Perhaps a polite note or actual C&D would have been the way to go.
    - eftpotrm 15y ago
      $32k is an awful lot of money to have handed over for something like this, on the scare of it being potentially a lot more. That's what I mean; on an arguable point, the cost of defending the lawsuit and facing costs - let alone the potential damages - meant that the smaller party simply rolled over. That's the scare tactic.
      - devonrt 15y ago
        Yes, but that's not specific to copyright law, it's a problem with tort law in the US in general (although, admittedly, its abuse is pretty prevalent when it comes to copyrights).
- mortenjorck 15y ago
  It is an annoyingly 20th-Century notion that one's original work must be untouchable and sacrosanct. It is an annoyingly 21st-Century notion that one's original work must be free-for-all and a commodity.
  - makmanalp 15y ago
    So what is your timeless solution?
    - wtvanhest 15y ago
      The court figured that out. $32,500.
      - bricestacey 15y ago
        Not really. Settlements aren't really decisions of the court.
        wtvanhest 15y ago
        Settlements may not technically be in court, but they are the result of the court existing. (my comment about the $32,500 should have been attached to the comment above) Not sure how I clicked the wrong link.
        masterzora 15y ago
        > Settlements may not technically be in court, but they are the result of the court existing. I want to begin by explicitly letting you know that this is not an attack on you, but rather a suggestion that is applicable to many, many HN members. Being wrong is not a crime. If you happen to be wrong some time, it is better to admit your mistake than to try to twist your original words to be right from a certain point of view. The need to always be right, to argue until some point of view can be reached where you are established as right, is just ridiculous and unbecoming. I struggle with this, too, because I'm far from perfect, but letting go of that "need" is a big step toward more productive conversation. In this case, the settlement may be the result of the court existing, but that does not, in any way, mean that the court figured it out.
- drunkpotato 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. Why? You seem to think you have scored a point by using "should" and uppercasing THEIR. I disagree that how THEIR work is used "should" be the artist's choice. The artist's choice is in whether to release the work, and then whether to use applicable copyright laws to control distribution of derivative works for the duration of copyright.
- mycroftiv 15y ago
  I wonder how the photographer would feel if the company that manufactured the trumpet played by Miles Davis had claimed that his photograph violated the copyright of their "sculpture" and the tailor Miles got his suit from also protested. Of all art forms, photography has some of the least claim on being an entirely original creation of the artist.
  - kenjackson 15y ago
    You'd be surprised how often stuff like that happens. It's not uncommon for "artists" to sue for their works being caught on film. And in many cases this art is on public display, for example, in a park.
    - Lagged2Death 15y ago
      And in general, those artists are laughed right out of court, as they should be. A photo of a sculpture is in no way a substitute for the sculpture. The pixel art is in no way a substitute for the original photo, either.
      - jellicle 15y ago
        > those artists are laughed right out of court Not at all. ALL architectural works constructed after 1990 are now copyrighted in the U.S., so any photography of any vaguely new buildings/structures is an infringement. (Sculptures have long been protected.) Give it another 50 years and it won't be possible to legally take a photograph outdoors in any location where humans have built anything. Since I'm certain people will downvote or post snarky "CITATION???" comments without googling, here's your preemptive cite: http://en.wikipedia.org/wiki/Copyright_in_architecture_in_the_United_States http://en.wikipedia.org/wiki/Copyright_in_architecture_in_th...
        slapshot 15y ago
        > so any photography of any vaguely new buildings/structures is an infringement. (Sculptures have long been protected.) Give it another 50 years and it won't be possible to legally take a photograph outdoors in any location where humans have built anything. Total misunderstanding of how copyright in architecture works. If you build a new building, I can't copy your design and build an identical building across the street. But I can take all the photos I want of it. From _your own link_: "First, when a building is ordinarily visible from a public place, its protection as an 'architectural work' does not include the right to prevent the making, distributing, or public display of pictures, photographs, or other pictorial representations of the work. The architect will not be able to prevent people from taking photographs or otherwise producing pictorial representations of the building."
- jmcqk6 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. So... down with fair use? Everything created is copying something else in same way or another. An artist that expects complete control over their work is more than just delusional in their expectations, but also ignoring how their creation is riffing on previous works by other people.
- benihana 15y ago
  Agreed. But it's such a dick move. Instead of just saying, "hey, please don't do this," he hurts the guy. http://daringfireball.net/linked/2011/06/23/maisel-mansion http://daringfireball.net/linked/2011/06/23/maisel-mansion
  - bonzoesc 15y ago
    A reputation for hurting someone for tens of thousands of dollars is like saying "hey, please don't do this" in advance to everyone who hears about it.
    - Confusion 15y ago
      Maisel is in the comfortable position where he doesn't need to do that anymore and hasn't needed to for a long time. That is why this was wrong of him. He doesn't need to protect his reputation or commercial interests against some tiny project doing an 8-bit tribute to Miles Davis. He gains nothing: the net effect is that this guy, that tried to do something nice that made a few people happy, get slapped. Nothing else has come of this lawsuit.
      - bonzoesc 15y ago
        People will continue to not fuck with him or his estate. You don't get rich by writing a lot of checks.
- benihana 15y ago
  Agreed. But it's such a dick move. Instead of just saying, "hey, please don't do this," he hurts the guy. http://daringfireball.net/linked/2011/06/23/maisel-mansion http://daringfireball.net/linked/2011/06/23/maisel-mansion
- Lagged2Death 15y ago
  And yet it should be the artist's choice on how THEIR work is used... The question, really, is "Is this pixel-art thing even the same picture, legally speaking?" And the answer is: "We'll never know, because a legal decision is too expensive for one of the parties to obtain."
- jellicle 15y ago
  Why would you think so? Do you think Toyota should only permit particular uses of their vehicles? That Dell should only permit particular uses of their computers?
- tjogin 15y ago
  It's not the photographer's work, really, since the pixelated version was hand made by a pixel artist, using the photo only as inspiration.
- notatoad 15y ago
  yes, it should be the artist's choice how their work is used. that's not the question. the question is when it stops being their work, and starts being the work of the artist influenced by it.
- wazoox 15y ago
  Absolutely not. A well-known piece of art belongs to the public more than to the artist. Here are two quotes from famous creators illustrating that: Le droit d'auteur, vraiment c'est pas possible. Un auteur n'a aucun droit. Je n'ai aucun droit. Je n'ai que des devoirs. Jean-Luc Godard. (Copyright, really, that isn't possible. An author has no rights. I have no rights. I have only duties). Le livre, comme livre, appartient à l'auteur, mais comme pensée, il appartient - le mot n'est pas trop vaste - au genre humain. Toutes les intelligences y ont droit. Si l'un des deux droits, le droit de l'écrivain et le droit de l'esprit humain, devait être sacrifié, ce serait, certes, le droit de l'écrivain, car l'intérêt public est notre préoccupation unique, et tous, je le déclare, doivent passer avant nous. Victor Hugo. (The book as such, belongs to its author, but as a thought belongs - the word isn't too vast - to mankind. All intelligences have a right to it. If one of two rights, the writer's right and the human mind's right, should be sacrificed, it would surely be the writer's right, because public interest is our unique preoccupation, and all, I declare it, must pass before us).
- true_religion 15y ago
  I ascribe to the notion known to a few other countries that an artistic work belongs to the culture that produced it, and not the individual artist. The only thing the artist may be protected from is duplication for the mere purpose of profit, not further cultural benefit. Thus everyone is free to make derivative works, so long as they're not so closely associated with the original that its considered mere duplication. Duplication, if not for profit, can be allowed for individual consumers but not businesses. --- I think writing off this admittedly socialistic view on artistic work as "self entitlement" is short sighted.
- spiffxp 15y ago
  No. It should be the artist's choice on how their work is released, but beyond that, they can do nothing. Once an artist has released their work, the details of how it is consumed, how it is interpreted, and how it is used will always be well beyond their control. Much like a startup must pivot, so too must an artist live in the world within which they create their work.
- kelnos 15y ago
  And yet it should be the artist's choice on how THEIR work is used Why? Seriously, I'm genuinely interested in why you believe this statement should be true. If this were actually the case, there would be no such thing as a fair use defense.
- Goladus 15y ago
  Not me. In this case the inflated ego leading to unreasonable aggressiveness is far more distasteful than the relatively mild sense of self-entitlement. The more derivative a work is, the less it belongs to the original artist. In this case, the work was derivative enough for there to be a legitimate legal case either way. It's easily understood as an honest mistake, though it clearly was a mistake not to check the art ahead of time. It's understandable for the artist to be upset. But it's conflict that reasonable, respectful human beings should be able to resolve without a full-blown lawsuit. The vengeful attempt to inflict punitive damage on the guy who, at worst, made an honest mistake? That's worse, in my book.
- domador 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. If an artist makes a work of art and nobody ever pays any attention to it, is the work still valuable? To a certain extent, the attention that people give to a work of art gives it value (in my opinion). People's attention is a limited resource, one that certain artists fail to duly acknowledge when they attempt tyrannical control over their works. Artists: if you want absolute control over your works, keep them to yourselves and never show them to anyone else, ever (please!). Otherwise acknowledge your debt to the (mostly-free) cultural environment(s) you drew inspiration from and to the public mindspace your works occupy. At least pay back our attention with your gratitude, instead of IP-thuggery.
- guelo 15y ago
  The problem is that, thanks to Disney, copyrights last eleventy million years nowadays. Culture works by building on previous achievements, copyrights stop that. Ideally copyrights should be as short amount a time as possible while still giving an artist a chance to make a living. Actually up to 120 years in the US.
afterburner 15y ago
You mention luck plays a part. Having a recognizable image increases your odds. That's why people get sued for this kind of thing, because art has so much luck and every little reference or connection helps. It's unfortunate the author didn't think the cover art would be a problem. It's a pretty iconic image, and the very fact that he really wanted to copy it because it would fit so well should have set off some alarms. It's like a brand name, it could be seen to increase the value of the product. (I don't even know if he sold Kind of Bloop or reaped any kind of financial reward, but sometimes even that's not important. If he didn't, then man does that penalty suck.)
- jonknee 15y ago
  > I don't even know if he sold Kind of Bloop or reaped any kind of financial reward, but sometimes even that's not important. If he didn't, then man does that penalty suck. Did you not read the post? He explains this in the very first paragraph: "Remember Kind of Bloop, the chiptune tribute to Miles Davis' Kind of Blue that I produced? 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 and giving the total profits from the Kickstarter fundraiser to the five musicians that participated."
  - enjo 15y ago
    I'm not familiar with the project.. did he go on to sell the actual album?
    - jonknee 15y ago
      Yes, it's for sale right now. http://kindofbloop.com/ http://kindofbloop.com/
  - afterburner 15y ago
    I did read the post. Your other repliers covered the qualifiers.
- Confusion 15y ago
  You are completely right, but for Maisel, this isn't a concern anymore and for any artist of moderate stature, it isn't a concern if some tiny project as this one uses an image. The overlap between audiences is vanishingly small.
kbutler 15y ago
This is a fundamental problem with the implementation of fair use in the US legal system. Fair use is a limitation of copyright (not a violation of copyright), and the law defines guidelines for establishing fair use, but it may cost you tens of thousands of dollars and a lot of heartache if the copyright holder disagrees with your interpretation of the guidelines, regardless of whether you are right or wrong. Copyright in the US exists to promote the progress of science and the useful arts (US Constitution), not to protect the "purity" of an artist's work. Parody is one well-recognized, legally protected form of fair use - and no doubt it would cause this photographer to feel "violated".
russell 15y ago
My GF is an artist so I am biased on the subject, but my take is that this is a direct copy for commercial purposes, not even as much originality as the Obama poster. My GF would certainly be pissed if one of her paintings were used in such a manner, particularly since one of her trademarks is attention to detail. Notice that he got permission to use the music, but didnt bother with the artwork. A couple of my GS's paintings have been used on people's blogs as illustrations to accompany the postings. She didnt mind because the use was appropriate (in the sense of enhancing the writing), attribution was given, and it was non-commercial. Making a copy of someone's work is always tricky. The point at which it becomes your own work and not just a rip-off is very subjective. She made a painting that she wont sell because it was derived from a couple in a portion of a larger picture in an ad. I maintain that she is silly because she copied only the pose and even the original photographer wouldnt recognize that it is a derivative work. Asking permission is always appropriate and sometimes you get turned down. As an artist she asks for model's release for anything that might result in a recognizable portrait.
- Confusion 15y ago
  Your GF is not an artist whose reputation has been rock solid for decades and who doesn't have any commercial interests to protect. I am not arguing a general case; I'm arguing specifically that Maisel should not have complained, let alone started a lawsuit, about this specific use of one of his works, in part because he is in the position to do so. He can let a thousand derivative suns, making a few handfuls of people happy each time, bloom without any negative effects for him. But really, if this guy had used a picture by your girlfriend as the cover art, she would have been pissed? Why? Because a couple of dozen people now have a CD with some version of her art on the cover? Because some guy on the internet has that version on his website? I don't understand that at all. Even unknown artists are supremely unlikely to suffer any negative consequences as a result of this tiny project using one of their images. It isn't like this is a serious commercial effort: it was born out of love, not out of a quest for cash.
  - pckhoi 15y ago
    I don't know about photography but I do know how much effort a painter has to put into each of his painting, especially for those who's great at "attention to detail". And the 8-bit derivative is but a thin layer on top of enormous work. Think of someone who add 10 lines of code on top of your 10,000 lines of code and publish it without asking for permission. The artist definitely have the right to be pissed at least.
Angostura 15y ago
The only merit that the pixellated version had was that it was a (not very) processed version of an iconic image. I'm with the photographer on this one.
- stephen_g 15y ago
  It was actually re-drawn by a pixel-artist. It's a completely remade version of the image, which is why fair use should apply -it's not like he's taken the image into Photoshop and used some filter.

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.
  - CountSessine 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. It's completely different. Look at clauses 1 & 4 of the Copyright Act as sited in the article. The spirit of this 'derivative work' concept rests on the contribution of the derivative work to the general state of the art (does it add anything?), and the effect on the existing works (does is take food out of the original artists's mouth?). Taking source code and recompiling it and redistributing it without making any contribution yourself is completely outside the idea of a derivative work. Even modifying it in some significant way, if it deprives me of my livelihood, probably doesn't work. Pixelating a Miles Davis picture is absolutely a derivative work, especially as an adjunct to an 8-bit rework of one of the man's albums. There's no substitutability at all between this pixelated version and the original picture - it would have exactly 0 (zero) effect on the demand or availability of the original photo of Davis. 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. Yes - and I'm against requiring licensing for music resampling as well. The test should be substitutability and contribution, not establishing arbitrary control over the way intellectual property is allowed to evolve and who is allowed to reshape it.
  - enneff 15y ago
    A more apt comparison: Say you're a game programmer and you wrote an addictive platformer for the 486-era IBM PC. It's a game that brings warm nostalgia to the average 30-something gamer. It's the best game you ever wrote, but a lot of time has passed since then. Some guy comes along and writes a remake for the ZX Spectrum 48k and releases it for a nominal charge. How do you feel? What can you do?
  - Confusion 15y ago
    You know, in forty years, when my reputation is firmly established and your reformatting doesn't threaten my commercial interests in any way, I will send you my best code. See my other comments for why these kinds of analogies are too far off to make a useful point.
- chernevik 15y ago
  As art, it doesn't seem particularly interesting or clever or striking. Which is really too bad, because Davis of all people might have appreciated a roughened, technially imperfected image that somehow did something new. But this looks to me like a very low-resolution duplicate. Only on inspection do I see elements that say "pixel", and these aren't particularly important or interesting. All the examples cited by the OP are considerably more different from the original than the image in question. To get more clearly into the category of "fair use", I would think the art would need more significant differentiation. To an unexpert eye, these might be things like: - Variation of the palette into something typical of an NES game - Revisit the perspective to make it more two-dimensional, as an older video game would (the image clearly depicts Davis at an angle in a way we wouldn't have expected in an 80s game console) - More exaggerated usage of "pixelized" elements - Introduction of elements / themes /motifs from other pixel art pieces - Turn the image upside down, put curious, "where the hell am I?" look on Davis' face - Pixelized chipmunk - Pixelized Thelonious Monk If the idea here wasn't to invest a lot of time into the image itself, and have some that plays the marketing role of 1950s cover art, then do something evocative but more clearly distinct. Finding the line between "derivative" and "creative" is not a computable problem. But it gets a lot easier with the quality of the art. But it seems to me the photographer has a point. Especially when I consider that the image real does look like a low-res JPEG -- if he tolerates that, the next question will be the difference between this and an actual low-res JPEG. Now, could he have been nicer about it? I would certainly think it better to start with "hey knock it off". But maybe I don't everything that went before the settlement.
nazgulnarsil 15y ago
don't feed something to the leviathan if you can't stand to see it get chewed up.
tbrownaw 15y ago
So what exactly entitles someone to exclusive control/ownership over a particular arrangement of bits, just because they happened to be the one to produce the first copy of that arrangement?
- aristus 15y ago
  Copyright law. And in Europe at least a deeper moral right to be identified as the author of a work and to have a say in how it's used. For example, I would be very upset if my work was used in advertising, or a political campaign that I violently disagreed with. It's not a black and white issue and that's why this went to the lawsuit stage.
- deleted 15y ago
  [deleted]
  - wingo 15y ago
    The question is ill-posed. In Europe there is a legal concept of moral rights, which does not exist in the US.
    - dhs 15y ago
      It does, at least for visual artists: http://en.wikipedia.org/wiki/Visual_Artists_Rights_Act http://en.wikipedia.org/wiki/Visual_Artists_Rights_Act
- benologist 15y ago
  "bits" is a very disingenuous way to look at creative work. The end product is "just" 1s and 0s in the same sense a Porsche is "just" atoms.
  - jonknee 15y ago
    This would be like making a Porsche out of Legos for an art project and then getting sued. No one is confusing one with the other.
  - 15y ago
halo 15y ago
Should it? Why?
- DrJokepu 15y ago
  Because it's the product of his or her hard work? I really don't understand the question.
  - CamperBob 15y ago
    What are your thoughts on the question he asks at the bottom of the blog entry ("Where would you draw the line?")
eftpotrm 15y ago
And the intersection of these two viewpoints is where Fair Use doctrine comes in. I'm not even remotely a lawyer and this isn't my country's legal system anyway, but the case as to whether this was covered by fair use was felt to be arguable by both sides. The real story here isn't 'unreasonable artist sued me' but 'lawsuits used as scare tactic'.
- devonrt 15y ago
  Was it really a scare tactic in this case, though? The copyright holder felt that his copyright had been infringed, so he sent a cease and desist, backed up with the threat of legal action. What should the copyright holder have done instead? Sent a polite note? Threaten violence? Like it or not the court is where Fair Use is decided. Just because the threat of a lawsuit is scary doesn't always mean it's being used as a scare tactic. The real, real story here is, as the author asks, where do you draw the line? Personally I don't think the author had much of a leg to stand on given that the image was being used to sell an album and was easily recognizable as a simulacrum of the original work.
  - jonknee 15y ago
    It wasn't a cease and desist--Andy had to pay Maisel $32k for him to go away. Perhaps a polite note or actual C&D would have been the way to go.
  - eftpotrm 15y ago
    $32k is an awful lot of money to have handed over for something like this, on the scare of it being potentially a lot more. That's what I mean; on an arguable point, the cost of defending the lawsuit and facing costs - let alone the potential damages - meant that the smaller party simply rolled over. That's the scare tactic.
    - devonrt 15y ago
      Yes, but that's not specific to copyright law, it's a problem with tort law in the US in general (although, admittedly, its abuse is pretty prevalent when it comes to copyrights).
mortenjorck 15y ago
It is an annoyingly 20th-Century notion that one's original work must be untouchable and sacrosanct. It is an annoyingly 21st-Century notion that one's original work must be free-for-all and a commodity.
- makmanalp 15y ago
  So what is your timeless solution?
  - wtvanhest 15y ago
    The court figured that out. $32,500.
    - bricestacey 15y ago
      Not really. Settlements aren't really decisions of the court.
      - wtvanhest 15y ago
        Settlements may not technically be in court, but they are the result of the court existing. (my comment about the $32,500 should have been attached to the comment above) Not sure how I clicked the wrong link.
        masterzora 15y ago
        > Settlements may not technically be in court, but they are the result of the court existing. I want to begin by explicitly letting you know that this is not an attack on you, but rather a suggestion that is applicable to many, many HN members. Being wrong is not a crime. If you happen to be wrong some time, it is better to admit your mistake than to try to twist your original words to be right from a certain point of view. The need to always be right, to argue until some point of view can be reached where you are established as right, is just ridiculous and unbecoming. I struggle with this, too, because I'm far from perfect, but letting go of that "need" is a big step toward more productive conversation. In this case, the settlement may be the result of the court existing, but that does not, in any way, mean that the court figured it out.
drunkpotato 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. Why? You seem to think you have scored a point by using "should" and uppercasing THEIR. I disagree that how THEIR work is used "should" be the artist's choice. The artist's choice is in whether to release the work, and then whether to use applicable copyright laws to control distribution of derivative works for the duration of copyright.
mycroftiv 15y ago
I wonder how the photographer would feel if the company that manufactured the trumpet played by Miles Davis had claimed that his photograph violated the copyright of their "sculpture" and the tailor Miles got his suit from also protested. Of all art forms, photography has some of the least claim on being an entirely original creation of the artist.
- kenjackson 15y ago
  You'd be surprised how often stuff like that happens. It's not uncommon for "artists" to sue for their works being caught on film. And in many cases this art is on public display, for example, in a park.
  - Lagged2Death 15y ago
    And in general, those artists are laughed right out of court, as they should be. A photo of a sculpture is in no way a substitute for the sculpture. The pixel art is in no way a substitute for the original photo, either.
    - jellicle 15y ago
      > those artists are laughed right out of court Not at all. ALL architectural works constructed after 1990 are now copyrighted in the U.S., so any photography of any vaguely new buildings/structures is an infringement. (Sculptures have long been protected.) Give it another 50 years and it won't be possible to legally take a photograph outdoors in any location where humans have built anything. Since I'm certain people will downvote or post snarky "CITATION???" comments without googling, here's your preemptive cite: http://en.wikipedia.org/wiki/Copyright_in_architecture_in_the_United_States http://en.wikipedia.org/wiki/Copyright_in_architecture_in_th...
      - slapshot 15y ago
        > so any photography of any vaguely new buildings/structures is an infringement. (Sculptures have long been protected.) Give it another 50 years and it won't be possible to legally take a photograph outdoors in any location where humans have built anything. Total misunderstanding of how copyright in architecture works. If you build a new building, I can't copy your design and build an identical building across the street. But I can take all the photos I want of it. From _your own link_: "First, when a building is ordinarily visible from a public place, its protection as an 'architectural work' does not include the right to prevent the making, distributing, or public display of pictures, photographs, or other pictorial representations of the work. The architect will not be able to prevent people from taking photographs or otherwise producing pictorial representations of the building."
jmcqk6 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. So... down with fair use? Everything created is copying something else in same way or another. An artist that expects complete control over their work is more than just delusional in their expectations, but also ignoring how their creation is riffing on previous works by other people.
benihana 15y ago
Agreed. But it's such a dick move. Instead of just saying, "hey, please don't do this," he hurts the guy. http://daringfireball.net/linked/2011/06/23/maisel-mansion http://daringfireball.net/linked/2011/06/23/maisel-mansion
- bonzoesc 15y ago
  A reputation for hurting someone for tens of thousands of dollars is like saying "hey, please don't do this" in advance to everyone who hears about it.
  - Confusion 15y ago
    Maisel is in the comfortable position where he doesn't need to do that anymore and hasn't needed to for a long time. That is why this was wrong of him. He doesn't need to protect his reputation or commercial interests against some tiny project doing an 8-bit tribute to Miles Davis. He gains nothing: the net effect is that this guy, that tried to do something nice that made a few people happy, get slapped. Nothing else has come of this lawsuit.
    - bonzoesc 15y ago
      People will continue to not fuck with him or his estate. You don't get rich by writing a lot of checks.
benihana 15y ago
Agreed. But it's such a dick move. Instead of just saying, "hey, please don't do this," he hurts the guy. http://daringfireball.net/linked/2011/06/23/maisel-mansion http://daringfireball.net/linked/2011/06/23/maisel-mansion
Lagged2Death 15y ago
And yet it should be the artist's choice on how THEIR work is used... The question, really, is "Is this pixel-art thing even the same picture, legally speaking?" And the answer is: "We'll never know, because a legal decision is too expensive for one of the parties to obtain."
jellicle 15y ago
Why would you think so? Do you think Toyota should only permit particular uses of their vehicles? That Dell should only permit particular uses of their computers?
tjogin 15y ago
It's not the photographer's work, really, since the pixelated version was hand made by a pixel artist, using the photo only as inspiration.
notatoad 15y ago
yes, it should be the artist's choice how their work is used. that's not the question. the question is when it stops being their work, and starts being the work of the artist influenced by it.
wazoox 15y ago
Absolutely not. A well-known piece of art belongs to the public more than to the artist. Here are two quotes from famous creators illustrating that: Le droit d'auteur, vraiment c'est pas possible. Un auteur n'a aucun droit. Je n'ai aucun droit. Je n'ai que des devoirs. Jean-Luc Godard. (Copyright, really, that isn't possible. An author has no rights. I have no rights. I have only duties). Le livre, comme livre, appartient à l'auteur, mais comme pensée, il appartient - le mot n'est pas trop vaste - au genre humain. Toutes les intelligences y ont droit. Si l'un des deux droits, le droit de l'écrivain et le droit de l'esprit humain, devait être sacrifié, ce serait, certes, le droit de l'écrivain, car l'intérêt public est notre préoccupation unique, et tous, je le déclare, doivent passer avant nous. Victor Hugo. (The book as such, belongs to its author, but as a thought belongs - the word isn't too vast - to mankind. All intelligences have a right to it. If one of two rights, the writer's right and the human mind's right, should be sacrificed, it would surely be the writer's right, because public interest is our unique preoccupation, and all, I declare it, must pass before us).
true_religion 15y ago
I ascribe to the notion known to a few other countries that an artistic work belongs to the culture that produced it, and not the individual artist. The only thing the artist may be protected from is duplication for the mere purpose of profit, not further cultural benefit. Thus everyone is free to make derivative works, so long as they're not so closely associated with the original that its considered mere duplication. Duplication, if not for profit, can be allowed for individual consumers but not businesses. --- I think writing off this admittedly socialistic view on artistic work as "self entitlement" is short sighted.
spiffxp 15y ago
No. It should be the artist's choice on how their work is released, but beyond that, they can do nothing. Once an artist has released their work, the details of how it is consumed, how it is interpreted, and how it is used will always be well beyond their control. Much like a startup must pivot, so too must an artist live in the world within which they create their work.
kelnos 15y ago
And yet it should be the artist's choice on how THEIR work is used Why? Seriously, I'm genuinely interested in why you believe this statement should be true. If this were actually the case, there would be no such thing as a fair use defense.
Goladus 15y ago
Not me. In this case the inflated ego leading to unreasonable aggressiveness is far more distasteful than the relatively mild sense of self-entitlement. The more derivative a work is, the less it belongs to the original artist. In this case, the work was derivative enough for there to be a legitimate legal case either way. It's easily understood as an honest mistake, though it clearly was a mistake not to check the art ahead of time. It's understandable for the artist to be upset. But it's conflict that reasonable, respectful human beings should be able to resolve without a full-blown lawsuit. The vengeful attempt to inflict punitive damage on the guy who, at worst, made an honest mistake? That's worse, in my book.
domador 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. If an artist makes a work of art and nobody ever pays any attention to it, is the work still valuable? To a certain extent, the attention that people give to a work of art gives it value (in my opinion). People's attention is a limited resource, one that certain artists fail to duly acknowledge when they attempt tyrannical control over their works. Artists: if you want absolute control over your works, keep them to yourselves and never show them to anyone else, ever (please!). Otherwise acknowledge your debt to the (mostly-free) cultural environment(s) you drew inspiration from and to the public mindspace your works occupy. At least pay back our attention with your gratitude, instead of IP-thuggery.
guelo 15y ago
The problem is that, thanks to Disney, copyrights last eleventy million years nowadays. Culture works by building on previous achievements, copyrights stop that. Ideally copyrights should be as short amount a time as possible while still giving an artist a chance to make a living. Actually up to 120 years in the US.

afterburner 15y ago

You mention luck plays a part. Having a recognizable image increases your odds. That's why people get sued for this kind of thing, because art has so much luck and every little reference or connection helps. It's unfortunate the author didn't think the cover art would be a problem. It's a pretty iconic image, and the very fact that he really wanted to copy it because it would fit so well should have set off some alarms. It's like a brand name, it could be seen to increase the value of the product. (I don't even know if he sold Kind of Bloop or reaped any kind of financial reward, but sometimes even that's not important. If he didn't, then man does that penalty suck.)

jonknee 15y ago
> I don't even know if he sold Kind of Bloop or reaped any kind of financial reward, but sometimes even that's not important. If he didn't, then man does that penalty suck. Did you not read the post? He explains this in the very first paragraph: "Remember Kind of Bloop, the chiptune tribute to Miles Davis' Kind of Blue that I produced? 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 and giving the total profits from the Kickstarter fundraiser to the five musicians that participated."
- enjo 15y ago
  I'm not familiar with the project.. did he go on to sell the actual album?
  - jonknee 15y ago
    Yes, it's for sale right now. http://kindofbloop.com/ http://kindofbloop.com/
- afterburner 15y ago
  I did read the post. Your other repliers covered the qualifiers.
Confusion 15y ago
You are completely right, but for Maisel, this isn't a concern anymore and for any artist of moderate stature, it isn't a concern if some tiny project as this one uses an image. The overlap between audiences is vanishingly small.

kbutler 15y ago

This is a fundamental problem with the implementation of fair use in the US legal system. Fair use is a limitation of copyright (not a violation of copyright), and the law defines guidelines for establishing fair use, but it may cost you tens of thousands of dollars and a lot of heartache if the copyright holder disagrees with your interpretation of the guidelines, regardless of whether you are right or wrong. Copyright in the US exists to promote the progress of science and the useful arts (US Constitution), not to protect the "purity" of an artist's work. Parody is one well-recognized, legally protected form of fair use - and no doubt it would cause this photographer to feel "violated".

russell 15y ago

My GF is an artist so I am biased on the subject, but my take is that this is a direct copy for commercial purposes, not even as much originality as the Obama poster. My GF would certainly be pissed if one of her paintings were used in such a manner, particularly since one of her trademarks is attention to detail. Notice that he got permission to use the music, but didnt bother with the artwork. A couple of my GS's paintings have been used on people's blogs as illustrations to accompany the postings. She didnt mind because the use was appropriate (in the sense of enhancing the writing), attribution was given, and it was non-commercial. Making a copy of someone's work is always tricky. The point at which it becomes your own work and not just a rip-off is very subjective. She made a painting that she wont sell because it was derived from a couple in a portion of a larger picture in an ad. I maintain that she is silly because she copied only the pose and even the original photographer wouldnt recognize that it is a derivative work. Asking permission is always appropriate and sometimes you get turned down. As an artist she asks for model's release for anything that might result in a recognizable portrait.

Confusion 15y ago
Your GF is not an artist whose reputation has been rock solid for decades and who doesn't have any commercial interests to protect. I am not arguing a general case; I'm arguing specifically that Maisel should not have complained, let alone started a lawsuit, about this specific use of one of his works, in part because he is in the position to do so. He can let a thousand derivative suns, making a few handfuls of people happy each time, bloom without any negative effects for him. But really, if this guy had used a picture by your girlfriend as the cover art, she would have been pissed? Why? Because a couple of dozen people now have a CD with some version of her art on the cover? Because some guy on the internet has that version on his website? I don't understand that at all. Even unknown artists are supremely unlikely to suffer any negative consequences as a result of this tiny project using one of their images. It isn't like this is a serious commercial effort: it was born out of love, not out of a quest for cash.
- pckhoi 15y ago
  I don't know about photography but I do know how much effort a painter has to put into each of his painting, especially for those who's great at "attention to detail". And the 8-bit derivative is but a thin layer on top of enormous work. Think of someone who add 10 lines of code on top of your 10,000 lines of code and publish it without asking for permission. The artist definitely have the right to be pissed at least.

Angostura 15y ago

The only merit that the pixellated version had was that it was a (not very) processed version of an iconic image. I'm with the photographer on this one.

stephen_g 15y ago
It was actually re-drawn by a pixel-artist. It's a completely remade version of the image, which is why fair use should apply -it's not like he's taken the image into Photoshop and used some filter.