4 ms·

The argument is, as has been stated many times between the two posts "fair use". The fact that it obviously came from a copyright image does not disqualify it

The argument is, as has been stated many times between the two posts "fair use". The fact that it obviously came from a copyright image does not disqualify it for fair use; it is required for fair use to even make sense. Commercialness is also not a requirement for fair use. The main argument, that would likely pass in court, is that this use can in no way be mistaken for the original image, nor can it replace it or have any effect on its market value. It's a bit more complicated than that, but that's the gist.

brudgers 15y ago
<IANAL> Given that the image is associated with the same tunes and same album name makes it seem at least plausible that it could have an effect on the market value of the original photograph.</IANAL>
- evilduck 15y ago
  The songs and album name are also slight derivatives as well, he wasn't just slapping new album art on the original.
glhaynes 15y ago
Baio felt he needed to (and did) license the songs from Miles Davis's publisher in order to distribute "low res" recreations of them. I guess I don't understand why he didn't feel like he needed to license the cover image in order to distribute a low res recreation of it.
- masterzora 15y ago
  Section 115 of the Copyright Act of 1976 includes a specific provision mandating a compulsory license for covers of songs.
- chc 15y ago
  What you're missing is that there may be multiple copyrights that apply to any particular piece of recorded music. In particular, there's the copyright covering the song itself (i.e. the notes written on paper), and there's the copyright covering the recording (i.e. the actual performance that you listen to). As far as I can tell, he paid for the song itself. He wasn't paying for the license to distribute a "low-res" version of the original recording — he was paying for the right to record his own versions of the songs. This is why it's OK to sell your own performances of Beethoven's music (which has long been in the public domain) without paying anyone, but you can't freely copy a Vanessa Mae CD and hand it out to people on the street. There's no copyright to the song itself anymore, but the modern recording is still protected. A photograph is more like a recording than it is like sheet music. If I happened to be standing right next to the photographer and intentionally snapped an almost identical shot half a second later, he couldn't sue me for infringing on his copyright. If he had significantly transformed the tune itself, he wouldn't have even needed to pay for that, but AFAICT he produced faithful Nintendo-style performances of the original songs. That's why he needed to pay the rightsholder for the song.

brudgers 15y ago

<IANAL> Given that the image is associated with the same tunes and same album name makes it seem at least plausible that it could have an effect on the market value of the original photograph.</IANAL>

evilduck 15y ago
The songs and album name are also slight derivatives as well, he wasn't just slapping new album art on the original.

glhaynes 15y ago

Baio felt he needed to (and did) license the songs from Miles Davis's publisher in order to distribute "low res" recreations of them. I guess I don't understand why he didn't feel like he needed to license the cover image in order to distribute a low res recreation of it.

masterzora 15y ago
Section 115 of the Copyright Act of 1976 includes a specific provision mandating a compulsory license for covers of songs.
chc 15y ago
What you're missing is that there may be multiple copyrights that apply to any particular piece of recorded music. In particular, there's the copyright covering the song itself (i.e. the notes written on paper), and there's the copyright covering the recording (i.e. the actual performance that you listen to). As far as I can tell, he paid for the song itself. He wasn't paying for the license to distribute a "low-res" version of the original recording — he was paying for the right to record his own versions of the songs. This is why it's OK to sell your own performances of Beethoven's music (which has long been in the public domain) without paying anyone, but you can't freely copy a Vanessa Mae CD and hand it out to people on the street. There's no copyright to the song itself anymore, but the modern recording is still protected. A photograph is more like a recording than it is like sheet music. If I happened to be standing right next to the photographer and intentionally snapped an almost identical shot half a second later, he couldn't sue me for infringing on his copyright. If he had significantly transformed the tune itself, he wouldn't have even needed to pay for that, but AFAICT he produced faithful Nintendo-style performances of the original songs. That's why he needed to pay the rightsholder for the song.