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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-develop
by 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 agoAnd 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 agoDo 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 agoDo 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 agoA 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 agoYou 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 agoAs 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 agodon't feed something to the leviathan if you can't stand to see it get chewed up.
- tbrownaw 15y agoSo 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 agoCopyright 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]
- 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 agoThis 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 agoShould it? Why?
- eftpotrm 15y agoAnd 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 agoWas 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 agoIt 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 agoYes, 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 agoIt 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 agoSo what is your timeless solution?
- wtvanhest 15y agoThe court figured that out. $32,500.
- bricestacey 15y agoNot really. Settlements aren't really decisions of the court.
- wtvanhest 15y agoSettlements 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 agoI 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 agoYou'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 agoAnd 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 agoAgreed. 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 agoA 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 agoMaisel 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 agoPeople will continue to not fuck with him or his estate. You don't get rich by writing a lot of checks.
- benihana 15y agoAgreed. 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 agoAnd 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 agoWhy 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 agoIt'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 agoyes, 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 agoAbsolutely 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 agoI 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 agoNo. 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 agoAnd 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 agoNot 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 agoThe 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.