8 ms·

Photography Is "Copying;" More Fallout from Maisel vs. Baio

107 points by secretwhistle 15y ago

grellas 15y ago
The issues here can be argued endlessly without resolution because the only definitive way to resolve a fair-use dispute where the issues are close is to take it to trial in a federal court. 17 U.S.C. sec. 107 provides that, "in determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include [four factors]" (which factors are the "purpose and character of the work" (including whether it is commercial or non-profit), the "nature of the copyrighted work," "the amount and substantiality of the portion used in relation to the copyrighted work as a whole," and the "effect of the use upon the potential market for or value of the copyrighted work." These factors represent the so-called 4-part test used by courts to determine whether an allegedly infringing use is "fair use" or not. These factors constituting the broad legal test for fair use are very general and can apply in a thousand different ways and combinations to different facts. What is worse, the four statutory factors, though first codified by Congress in the 1976 Copyright Act, had first been developed by courts long before that and were never the exclusive factors to be used in making a fair-use determination. Thus, when Congress codified them, it specifically provided that the fair-use determination was to "include" those factors but was not to be limited to them. Thus, the legal test was deliberately kept vague and was all along intended to be left for final determination, case-by-case, in the courts. Given this legal landscape, anyone who wants to take a copyrighted work and transform it to a new use even while copying it in whole or in part risks an infringement suit and, the closer to the legal line the copying gets, the greater risk that a lawsuit will be filed and will need to be defended all the way to trial (with a substantial 6-figure price tag being inevitable in such a case - see http://news.ycombinator.com/item?id=2688599 http://news.ycombinator.com/item?id=2688599). This is because fair use is not a bar to a lawsuit; it is merely an affirmative defense that one can try to stand upon in defending against an infringement action. In defending, though, you also run the risk of losing on the merits and so you run the risk not only of having to incur hundreds of thousands in legal fees but also that of having to pay huge statutory damages should you lose the case. That is the dilemma in which Mr. Baio found himself. He believed himself right. But he had no way to test it short of incurring large lawyer costs and liability risks. Nor can he ever win the "case" definitively in a court of public opinion because it is too close. He does have a compelling argument (his work can readily be argued to have independent artistic value and to be transformative and not in any way supplanting any market opportunity available to Mr. Maisel). But there is no way to definitively refute the equally compelling argument that Mr. Maisel can make (a substantial part of his work was used, or at least the "heart" of it and the aesthetic additions do not - he would argue - truly transform a work that remains primarily imitative in quality). Yes, good lawyers can sharpen and refine these arguments to the nth degree and that is where the 6-figure price tags come in. Of course, the only way to test who is right is through a trial. And, there being no practical way to get to a trial, the issue will remain unresolvable. Note that a legislative solution to this type of issue is possible. Just as the fair-use statute explicitly says that one form of fair use is for "criticism," it might also say that it is a fair use to take a photograph and to do a pixelated rendering of it that adds artistic elements. Law can always be defined this way if desired. But, just as one does not code well by addressing only a specific case where a broader algorithmic solution is possible, one also does not normally pass laws to deal with isolated, individual cases where broad principles can govern a broad swath of cases. Copyright applies to countless situations and the fair use rules are broad and general. Given this, a dispute such as this will always prove frustrating to litigants and those with deep pockets will inevitably have the advantage.
- ajkessler 15y ago
  You're pretty much spot on. After taking several copyright courses in law school, I can definitively say that the whole area of law is a clusterfuck. Even the seminal cases aren't consistent, let alone those on the periphery. Sadly, most of the closer cases seem to come down the a single judge's gut feeling. If either side has deep enough pockets, they can force the case to come down to a panel of judges' gut feelings, but even the Circuit courts hold wildly inconsistent rulings. I'm not bashing judges here: the law here isn't so much a guideline as it is guide posts. It's not surprising that there's not much consistency. It's really frustrating for anybody trying to create. It can even be frustrating for the lawyers trying to practice in the field. I ran across this insightful, if slightly biased, post by William Patry, a fairly famous copyright lawyer, explaining his decision to shut down his personal copyright-based blog. He explains the decision as being partly motivated by the landscape of copyright law: http://williampatry.blogspot.com/2008/08/end-of-blog.html http://williampatry.blogspot.com/2008/08/end-of-blog.html
- gabrielroth 15y ago
  Good comment; I agree with almost all of it. I would add, though, that it would also be possible to invent a legislative solution that's not absurdly narrow, for instance by providing an inexpensive and reasonably prompt means of arbitration.
aidenn0 15y ago
Photographs are protected not because of the artistic choices per-se (since there are artistic choices e.g. of a model posing as well) but because it is in a fixed form. A live performance is not copyrightable, but a video recording of a live performance is. Even if there was no significant artistic choice in the setup: for example, if you setup a camera on a tripod so that the entire stage is in view and record it, you've got something copyrightable.
- juiceandjuice 15y ago
  It should be noted that a performance can infringe on copyrights though. If you cover a song, even in a much different way at any venue that charges a cover, that venue or the artist is obligated to pay royalties. Not unsurprisingly, many low-budget all-ages venues have been hit hard by lawyers from ASCAP for amounts that would put them out of business. I know a few venues I went to as a teenager had a very, very strict "no covers" policy, as ASCAP went so far as to hire people to visit the 100 person venue and listen for cover songs, and then send a bill for the annual license to the venue if they heard them. I think the annual license was somewhere on the order of 5-6k or for a venue of that size.
  - kragen 15y ago
    "Charging a cover" is not relevant to determining whether the performance is a "public performance" for copyright purposes.
    - juiceandjuice 15y ago
      No, but the amount of royalties you pay is somewhat dependent on it.
  - deleted 15y ago
    [deleted]
- ww520 15y ago
  Interesting. So those live performing concerts prohibiting audience recording have no legal standing? But the audience recorded videos have the copyright?
thegooley 15y ago
An interesting viewpoint, but I think the differentiation here lies in the degree of "artistic" creation. Put 10 photographers in a room with Miles Davis and you'll get 10 pretty distinct photographs of the man. Have 10 people create a pixelated version of a photograph, and you'll have 10 pretty similar results. Creating a pixelated version of this photograph is more akin to taking a photograph of the Mona Lisa - sure you can get a cool angle or do it with infrared film to get a different color palate, but it's still a picture of someone else's original work. You wouldn't say that the Miles Davis cover photo is "based on a Miles Davis concert", but rather it was created _at_ a Miles Davis concert. Similarly, in music, remixing a song can be a very creative process - but it is still a derivative work in that it wouldn't exist without the original which was created "from scratch". (Disclosure: I am/was a photographer who used to earn a living solely from licensing my photos for editorial purposes) Edit: I'm not attempting to discuss copyright laws (which are pretty clear), but rather the philosophy and justification behind the creation and copying of artistic works.
- greendestiny 15y ago
  Oops, I didn't read this thread closely enough when commenting. I've totally stolen you're argument in my reply to another comment here. Don't sue me :)
- chc 15y ago
  On the other hand, one could easily argue that there's a greater degree of artistic and stylistic transformation in creating pixel art than there is in moving two feet to the right and snapping another photograph and hoping this one turns out better than the last one. Heck, just look at the tie in the two versions. It would be hard to make it look that different in two photographs from anything like the same angle. Because the pixel art is an artistic representation of a tie rather than a blind copy of the photograph, the details are radically different even though it gives the same impression. It's a very artistic and skillful work. Additionally, as a newspaper editor and sometimes judge at competitions, I often look at many different photographs from different photographers at the same event. A lot of the time, the photos are barely distinguishable — a speaker saying "think" from one angle doesn't look vastly different from a speaker saying "should" a second later from a slightly different angle — yet none of the photographers would dream of suing the others for copyright infringement, despite the fact that one took the shot first and the other shot looks WAY more similar to the first than "Kind of Bloop" does to "Kind of Blue."
guelo 15y ago
This is a good post that is maybe significant morally but probably irrelevant within the law.
headShrinker 15y ago
I publish software as software developer, publish music as a musician, and 'copy' as photographer... publishing rights are on the top of my mind every time something of mine goes live. The writer tries to make a valid comparison between taking a picture, and taking an already created already popular picture and modifying it. There are a lot of variables involved process of taking a previously published picture and copying it, the writer want us to believe, the variables make it original. If the two art forms were comparable you could take that famous, extraordinary picture of Miles again, just like I could recreate that pixelated pic of the picture of Miles again. There are many problems with this: one, Miles is dead, two, the best photographer could not catch that moment at that time because one thing about photography is every shot is one in a billion trillion, no two shots are the same. Other problems with this comparison go on and on. If you wanted to extend that metaphor to music, 'there are only 88 keys on piano. Every song written is copying some sampling of those 88 keys. No need for music composition copyright anymore.' Obviously, this is not the case. Yet, sampling a segment from a song to use in your song is usually obvious to the listener and is commonly and 'easily' fought in court. photography is not copying and if you think it is, I will hand you my camera, and ask you to take that picture again.
- nkassis 15y ago
  I agree with you on this. I think the article would have been much better if he had focused on the fact that it wasn't just taking the original image directly and modifying it but making a brand new image based on the original. The pixalated image seems to have been hand drawn. I would like to know if taking an image like the one of Miles Davis and making a bust of it would be considered copyright infringment? If that is then the pixalated image is also infringment, if it isn't I don't see why the pixaleted image would also not be infringement. Is it the medium change that is the difference? I find this stuff confusing because then every time someone remakes that famous image of Marilyn Monroe with a look alike they are infringing.
- Xuzz 15y ago
  But just as you could recreate that (pixel art) image yourself, there's nothing stopping you from coming up with an already-created song yourself: the necessary information to create that (a piano, say) isn't dead like Miles Davis. Whether something can be re-created manually or not is not really a sane measure of creativity in the work.
rorrr 15y ago
Except Miles Davis allowed himself to be photographed (or "copied"), he even paid the photographer to use the photo on the cover. Nobody allowed Baio to "copy" that photo. I'm pretty sure Baio will lose, deservingly so.
thaumaturgy 15y ago
I would love to hear an opinion on photographing "The Bean" from a photographer that's defending Maisel. ("The Bean" is a sculpture in a public park which is protected by copyright and, therefore, illegal to take a photograph of. This seems absurd to most people, including photographers. More: http://newurbanist.blogspot.com/2005/01/copyrighting-of-public-space.html http://newurbanist.blogspot.com/2005/01/copyrighting-of-publ...) I wonder if there are photographers that would argue that it should be OK to photograph a copyrighted sculpture and that it should not be OK for another artist to create a derivative work from a photograph ... that would be an interesting argument to hear.
- kragen 15y ago
  TechDirt has covered cases over photography of sculptures a couple of times: http://www.techdirt.com/articles/20090804/0116455762.shtml http://www.techdirt.com/articles/20090804/0116455762.shtml (Di Modica v. North Fork and Di Modica v. Random House, over Charging Bull) and http://www.techdirt.com/articles/20090717/1400565585.shtml http://www.techdirt.com/articles/20090717/1400565585.shtml (Gaylord v. U.S., concerning a postage stamp with a photograph of the Korean War Memorial). In most countries, there's a "panorama exception": http://www.wipo.int/sme/en/documents/ip_photography.htm#1.6 http://www.wipo.int/sme/en/documents/ip_photography.htm#1.6 I'm not clear what the situation is in the US.
- daimyoyo 15y ago
  That seems beyond absurd. Are there any court cases challenging this?
- wisty 15y ago
  Photographers will argue that 90% of a photograph is composition, not the subject. Even though a pixelated adaptation of a photo is different, it's got the same composition. For example, that Miles Davis photo perfectly lines up his head and hands to fill the square CD cover. It also uses light and shade to make the subject's features really stand out. So through a the lens a photographer sees through (horrible pun), it's very derivative. A pixel artist will disagree, of course. They will say that composition isn't as important as getting the pixels just right. (Actually, bean is interesting because it actually changes the composition).
micks56 15y ago
Hypothetical: Baio downloads the latest Linux kernel. He changes all variable and function names to words of his choosing. Baio now says that he has the right to distribute BaioNix code free from GPL copyright restrictions and does so. The Free Software Foundation sues Baio alleging copyright infringement. Who wins and why? How is this different from or the same as Maisel v. Baio?
- ajays 15y ago
  The problem with hypotheticals is that there's no end to them. For every hypothetical you can come up with to show your point, I can come up with another to show mine. Please, just use some common sense: BAIO WAS NOT PUBLISHING THE PHOTOGRAPH! He was publishing the MUSIC ; the photograph was just incidental, to show (at a glance) the relationship between the original music and the remixed Bloop music. Do you REALLY think that people bought the album because of the pixellated artwork? It had absolutely NO impact on the sales. I've bought many a record (and CD) in my lifetime, and I don't recall ever buying a single one because of the cover. I am a hardcore supporter of the rights of the individual artists and musicians, and even I think Maisel was dead wrong.
  - micks56 15y ago
    First, I can't say that I am surprised my post currently sits at 4 downvotes here on HN. A programmer's work is sacred while a photographer's is not. Use some common sense? Baio absolutely published the photograph, which is why we are all having this discussion. It doesn't matter why people buy something or if it had an impact on sales. A copyright holder retains the sole right to publish a work and its derivatives. That is the essence of how we protect works of art fixed in a tangible means of expression.
  - antiterra 15y ago
    Insulting everyone by implying they haven't used common sense simply because they don't agree with you is incredibly fatuous. Chill with the righteous HEY YOU GUYS IF YOU JUST SAW IT MY WAY caps and italics; most of us aren't particularly dumb here. The pixel art was definitely published by any useful meaning of the word publish, 200 copies of the liner version. Also, it was the background of the site, clearly used as promotion. Let's say everyone accepts your argument that you can only violate artist rights if you gain a profit directly driven by the unauthorized use. It'd be perfectly fine to use a struggling unsigned band's best song to sell Volkswagens, since no one would buy a car because of music in an ad. Of course, the unsigned band was just about to license their song to sell cat food and pay the rent, but now the cat food manufacturer doesn't want the same song that's in that damn Volkswagen commercial. Oops! Shoulda moved faster, indie band! If you think that an artist or a musician should have no control over where their work is reproduced or published as long as it can be argued that it wasn't the main draw of any profit, you're not a hardcore supporter of the rights of individual artists and musicians. I wasn't around for any negotiations Maisel's or his attorney had with Baio, but it does see like Maisel was a bit of a jerk about this. A jerk solidly in his rights, however.
ajays 15y ago
I am really disappointed in the reaction of Maisel, and other photographers who're supporting the result of the lawsuit. Even if Baio copied the image pixel-by-pixel, what harm was done? Did anybody buy the Bloop because of the album artwork? Or because of the music? Come on, people! Show some common sense! A fine of a few 100 dollars would have been enough. On a tangential note: this is well worth a watch: http://www.everythingisaremix.info/watch-the-series/ http://www.everythingisaremix.info/watch-the-series/ No wonder pop music today is so crappy.
- anonymous246 15y ago
  I, for one, was glad to see an Internet celebrity whacked by an individual artist. As somebody else pointed out, the $32.5k he got probably went straight to the artist's lawyers. It was pretty telling that Baio licensed the music but not the cover art. The blog article never explains why his chiptune versions of the music don't count as fair use. And he admits he didn't accept the copyright infringement claim immediately but stalled for seven months. I am almost certain a different, happier arrangement could have been worked out if he'd agreed to license the artwork right at the beginning.
  - kenjackson 15y ago
    I am almost certain a different, happier arrangement could have been worked out if he'd agreed to license the artwork right at the beginning. Maisel has said that he would never license this artwork for that purpose. So there would have been no licensing deal. "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." [1] 1. http://waxy.org/2011/06/kind_of_screwed/ http://waxy.org/2011/06/kind_of_screwed/
    - anonymous246 15y ago
      Yes, I was aware of that quote. Baio's article is (intentionally?) vague on when he offered to license the art. Once you cross a certain threshold, emotions take over and the artist might have just felt violated and decided to "take his ball and go home". If he offered to license after a few months of saying "fuck you" (from the artist's perspective), it is easy to imagine a post-fact justification like the above to deny a license. Even if Baio's first respnse itself offered to license, at the very least the "happier arrangement" would have been that $32.5k would have still been in Baio's pocket. In the absence of information about when Baio offered to license, I'd remain unconvinced that no licensing deal would have been possible.
Dramatize 15y ago
Do the people arguing that Baio stole the image also argue that photographers who take photos of building are stealing the architects designs? Isn't it the same thing?
- Argorak 15y ago
  You might or might not be surprised: in some countries, such as Italy and France, taking pictures of copyrighted buildings leads to derivative works. See, for example, the last paragraph of: http://en.wikipedia.org/wiki/Wikipedia:FAQ/Copyright#Derivative_works http://en.wikipedia.org/wiki/Wikipedia:FAQ/Copyright#Derivat...
- minikomi 15y ago
  Interestingly enough, the New Museum tends to feature heavily in Maisel's personal photos (albeit quite zoomed in - he does like his telephotos..). To be fair, it is just down the street from him.. eg. http://www.jaymaisel.com/v2/wp-content/gallery/recent-work/20091122_dp933_0167.jpg http://www.jaymaisel.com/v2/wp-content/gallery/recent-work/2...
- stonemetal 15y ago
  I don't really think so(though I am pretty sure I am wrong legally). One is highly transformitive. A picture of a house can't be lived in like a house can be lived in. A picture transformed in to a slightly different picture isn't all that different.
- callmeed 15y ago
  Building owners can require a property release in order for their structure to appear in a published work.
  - ghaff 15y ago
    As I understand it (IANAL), this is a somewhat controversial point of IP law. However, in the interests of playing it safe, a lot of stock photo agencies do require property releases for certain iconic structures such as the Sydney Opera House. This is in the same vein as model releases however. it's not copyright but the use of a likeness for commercial purposes. I can take a picture of you on the street and use it for any editorial purpose. (Subject to not defaming you in some way.) But if I want to use that picture in an ad, I'd better have a model release.
kenjackson 15y ago
There are people that look like Miles Davis in that picture. If I take a picture of one of them, in the same looking clothes (although certainly not exactly the same) holding a similar trumpet, with similar lighting, would that violate copyright? At a quick glance maybe indistinguishable. At closer side by side inspection, any amateur investigator could spot the differences.
- kragen 15y ago
  If you do it on purpose, yes; see Rogers v. Koons (although Koons's copy was a sculpture, not another photo).
- esrauch 15y ago
  I'm not really convinced that would be sufficient; if you paint a duplication of an existing painting you are really stealing the likeness and profiting solely by distributing someone else's creative work. I think if someone did your example, if they could prove that your intent was simply to reproduce your creative work you would still be infringing even if you don't simply copy paste it. If you paraphrased Harry Potter and published it, it would probably still be copyright infringement even if no single sentence in the novel remains unchanged. It seems to me that it comes down to whether the work you made is a derivative work of someone else, particularly if you are directly taking their creative vision and adding nothing. Reproducing something in another medium easily could be the same thing as photocopying a book or selling prints of someone else's painting.
  - kenjackson 15y ago
    I suspect you are probably right. What this leads me to believe more and more is that there is no natural right to art. I'm really feeling more like copyright needs to just go.
    - jibbit 15y ago
      It has nothing todo with what is 'natural'. There is no natural right to land ownership - it's just the system we choose democratically because we believe that the advantages it brings outweigh the certain misery it causes the impoverished. Few of us believe that abolishing the right to Private Property would, on the whole, bring about a net gain for the majority. Personally, i don't believe that the Maisel case has much to say about abolishing Copyright. That doesn't mean i'm not in favour of doing so, but Maisel is an edge case.
uriel 15y ago
The absurdity of so called "intellectual property" becomes ever more patent.
DannoHung 15y ago
I wish that there was a place where, as an experiment, intellectual property was entirely disallowed. No trademarks, no patents, no copyrights, no trade secrets, nothin'. Just to see what happened.
- kragen 15y ago
  The US was pretty close to this during the 1800s. While there were trademarks, patents, and copyrights, they were mostly notable for their weakness and absence compared to other countries at the time and the US today.
- stonemetal 15y ago
  That is easy just look at China. Little original content worth anything and a huge black market, though I guess in this case it would be a regular market. Everything would be driven to the cost of reproduction pretty quickly.
  - danking00 15y ago
    This isn't a fair comparison. The cultures of the United States and the PRC are quite different on many levels. Copyright law is one of many variables. Furthermore, there actually are some good mainland musical acts. I'd like a more detailed analysis of the volume of original content before I passed it off as worthless.
    - stonemetal 15y ago
      PRC invented the free to play video game model because they learned early how worthless it was to actually ask their fellow citizens to pay for content. good mainland musical acts Good or not they aren't making money in a way that scales. edit: Worth in terms of getting paid not artistic worth.
  - deleted 15y ago
    [deleted]
- pash 15y ago
georgieporgie 15y ago
Meh. IMO the 'pixelated' 'art' isn't nearly pixelated enough, and not unique enough to qualify as art. Arguments based upon particularly bad selections of photoshop filters are not sufficient. The photo in question was beautifully captured, and the flippant way it's being treated is rather sad.
- FlemishBeeCycle 15y ago
  "Uniqueness" isn't a qualification for determining whether something is "art". Most art is not unique, and certainly not most photographs. Calling the pixelated version a "flippant" capturing is disingenuous, as it seems to be a reflection of your (apparent) dislike of pixel art rather than the artist's intentions.
  - georgieporgie 15y ago
    Uniqueness is a qualification of artiness as far as I'm concerned. Merely reproducing something is not art, it's direct reproduction. Introducing unique style would be art. This slight pixelation is insufficient to qualify as such. I never called the pixelated version flippant. Rather, I called the treatment of the original flippant. Also, don't project a dislike of pixel art onto me.
    - FlemishBeeCycle 15y ago
      > Merely reproducing something is not art, it's direct reproduction. Introducing unique style would be art. One could then argue that photographs are merely reproduction of reality, and therefore not art. I fail to see why you think photographs introduce unique style but pixel art does not. > The photo in question was beautifully captured, and the flippant way it's being treated is rather sad. I apologize for suggesting that you dislike pixel art, but that's how I this sentence reads to me.
      - georgieporgie 15y ago
        One could then argue that photographs are merely reproduction of reality, and therefore not art. I fail to see why you think photographs introduce unique style but pixel art does not. Because that photography does not merely reproduce reality. The camera, lens, film type, lighting, everything produced an entirely unique image[1]. Furthermore, if you were sitting there, observing his playing, you would not have seen what came out in that photograph. That's what makes photography something other than mere reproduction. That's where the art comes from. Regarding pixel art, I don't really consider this piece to even be pixel art. It's just a somewhat blocky rendition of a photograph. Great pixel art is more akin to Picasso's deconstruction of a bull: http://www.artyfactory.com/art_appreciation/animals_in_art/pablo_picasso/pablo_picasso.htm http://www.artyfactory.com/art_appreciation/animals_in_art/p... Great pixel art deconstructs an image into the minimal set of elements necessary to convey the original idea. The 'pixel art' in question really does just looks like a few photoshop filters applied to a very well-known photograph. Or a bad resizing of a thumbnail. [1] I get the impression that the "photography is reproduction" crowd don't understand technical aspects of photography, like lens selection, aperture, dynamic range, the effect that film selection makes, etc. Yes, a midday, f/16 snapshot of "The Bean" may not entail meaningful artistic qualities, but that sort of distinction tends to be along the fuzzy line we draw between 'snapshots' and 'photography'.
dhughes 15y ago
I wonder what Andy Warhol would say about this situation, half his stuff was "theft".
- pyre 15y ago
  That was my thought too. Especially to the "it's theft if you can recognize the original" argument. Did Andy 'steal' the Campbell's soup can? You can obviously recognize it in his art, right? Someone should sue his estate!
regularfry 15y ago
I hope everyone on all sides can recognise how absurd the "it's theft if you can recognise the original" argument is. For starters, photographers have a long tradition of claiming copyright in reference photos of fine art, where the whole point is to create an image which is as alike the original as possible.
- regularfry 15y ago
  Just replying to myself to clarify, here: the situation seems to be different in the US and in the UK. In the US, there is explicitly no copyright in a mechanical reproduction of an original artwork. It would appear that there is in the UK.
ahoyhere 15y ago
If you ask me, this is a pretty open & shut case: he copied the photograph exactly, as much as exactitude was allowed for the medium. Baio brought barely anything new to the table at all. A tie pattern? That doesn't seem like enough to me to make it a true derivative work, and moreover, it was for a commercial purpose. It is telling that Baio got permission for the music but not for the album cover.
virtualritz 15y ago
I wrote a similar essay a while back: http://www.virtualritz.com/archive/on-plagiarism-creativity-in-the-digital-age/ http://www.virtualritz.com/archive/on-plagiarism-creativity-...
aptsurdist 15y ago
Some alternative album covers that are hopefully a show of support for Baio. Copyrights: kind of screwed. 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...
zwieback 15y ago
From a photography point of view I can see both sides of the argument, even though the article says it's not just a pixelation filter to me it's not modified enough to see any artistic effort. On the other hand, I don't really see the damage done to the photographer so many years after taking the picture. However, my first thought was "that's the Kind of Blue cover" not "that's the famous photo of Miles Davis". Kind of Blue is one of the greatest records of all times so if anyone should get compensated it's Columbia or Miles' estate. I just checked my vinyl version of the record and the photographer isn't even mentioned. No doubt it's a great photo but without Miles it would be just a photo of a guy with a trumpet and none of this would have happened.

107 points by secretwhistle 15y ago

The issues here can be argued endlessly without resolution because the only definitive way to resolve a fair-use dispute where the issues are close is to take it to trial in a federal court. 17 U.S.C. sec. 107 provides that, "in determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include [four factors]" (which factors are the "purpose and character of the work" (including whether it is commercial or non-profit), the "nature of the copyrighted work," "the amount and substantiality of the portion used in relation to the copyrighted work as a whole," and the "effect of the use upon the potential market for or value of the copyrighted work." These factors represent the so-called 4-part test used by courts to determine whether an allegedly infringing use is "fair use" or not. These factors constituting the broad legal test for fair use are very general and can apply in a thousand different ways and combinations to different facts. What is worse, the four statutory factors, though first codified by Congress in the 1976 Copyright Act, had first been developed by courts long before that and were never the exclusive factors to be used in making a fair-use determination. Thus, when Congress codified them, it specifically provided that the fair-use determination was to "include" those factors but was not to be limited to them. Thus, the legal test was deliberately kept vague and was all along intended to be left for final determination, case-by-case, in the courts. Given this legal landscape, anyone who wants to take a copyrighted work and transform it to a new use even while copying it in whole or in part risks an infringement suit and, the closer to the legal line the copying gets, the greater risk that a lawsuit will be filed and will need to be defended all the way to trial (with a substantial 6-figure price tag being inevitable in such a case - see http://news.ycombinator.com/item?id=2688599 http://news.ycombinator.com/item?id=2688599). This is because fair use is not a bar to a lawsuit; it is merely an affirmative defense that one can try to stand upon in defending against an infringement action. In defending, though, you also run the risk of losing on the merits and so you run the risk not only of having to incur hundreds of thousands in legal fees but also that of having to pay huge statutory damages should you lose the case. That is the dilemma in which Mr. Baio found himself. He believed himself right. But he had no way to test it short of incurring large lawyer costs and liability risks. Nor can he ever win the "case" definitively in a court of public opinion because it is too close. He does have a compelling argument (his work can readily be argued to have independent artistic value and to be transformative and not in any way supplanting any market opportunity available to Mr. Maisel). But there is no way to definitively refute the equally compelling argument that Mr. Maisel can make (a substantial part of his work was used, or at least the "heart" of it and the aesthetic additions do not - he would argue - truly transform a work that remains primarily imitative in quality). Yes, good lawyers can sharpen and refine these arguments to the nth degree and that is where the 6-figure price tags come in. Of course, the only way to test who is right is through a trial. And, there being no practical way to get to a trial, the issue will remain unresolvable. Note that a legislative solution to this type of issue is possible. Just as the fair-use statute explicitly says that one form of fair use is for "criticism," it might also say that it is a fair use to take a photograph and to do a pixelated rendering of it that adds artistic elements. Law can always be defined this way if desired. But, just as one does not code well by addressing only a specific case where a broader algorithmic solution is possible, one also does not normally pass laws to deal with isolated, individual cases where broad principles can govern a broad swath of cases. Copyright applies to countless situations and the fair use rules are broad and general. Given this, a dispute such as this will always prove frustrating to litigants and those with deep pockets will inevitably have the advantage.

ajkessler 15y ago
You're pretty much spot on. After taking several copyright courses in law school, I can definitively say that the whole area of law is a clusterfuck. Even the seminal cases aren't consistent, let alone those on the periphery. Sadly, most of the closer cases seem to come down the a single judge's gut feeling. If either side has deep enough pockets, they can force the case to come down to a panel of judges' gut feelings, but even the Circuit courts hold wildly inconsistent rulings. I'm not bashing judges here: the law here isn't so much a guideline as it is guide posts. It's not surprising that there's not much consistency. It's really frustrating for anybody trying to create. It can even be frustrating for the lawyers trying to practice in the field. I ran across this insightful, if slightly biased, post by William Patry, a fairly famous copyright lawyer, explaining his decision to shut down his personal copyright-based blog. He explains the decision as being partly motivated by the landscape of copyright law: http://williampatry.blogspot.com/2008/08/end-of-blog.html http://williampatry.blogspot.com/2008/08/end-of-blog.html
gabrielroth 15y ago
Good comment; I agree with almost all of it. I would add, though, that it would also be possible to invent a legislative solution that's not absurdly narrow, for instance by providing an inexpensive and reasonably prompt means of arbitration.

aidenn0 15y ago

Photographs are protected not because of the artistic choices per-se (since there are artistic choices e.g. of a model posing as well) but because it is in a fixed form. A live performance is not copyrightable, but a video recording of a live performance is. Even if there was no significant artistic choice in the setup: for example, if you setup a camera on a tripod so that the entire stage is in view and record it, you've got something copyrightable.

juiceandjuice 15y ago
It should be noted that a performance can infringe on copyrights though. If you cover a song, even in a much different way at any venue that charges a cover, that venue or the artist is obligated to pay royalties. Not unsurprisingly, many low-budget all-ages venues have been hit hard by lawyers from ASCAP for amounts that would put them out of business. I know a few venues I went to as a teenager had a very, very strict "no covers" policy, as ASCAP went so far as to hire people to visit the 100 person venue and listen for cover songs, and then send a bill for the annual license to the venue if they heard them. I think the annual license was somewhere on the order of 5-6k or for a venue of that size.
- kragen 15y ago
  "Charging a cover" is not relevant to determining whether the performance is a "public performance" for copyright purposes.
  - juiceandjuice 15y ago
    No, but the amount of royalties you pay is somewhat dependent on it.
- deleted 15y ago
  [deleted]
ww520 15y ago
Interesting. So those live performing concerts prohibiting audience recording have no legal standing? But the audience recorded videos have the copyright?

thegooley 15y ago

An interesting viewpoint, but I think the differentiation here lies in the degree of "artistic" creation. Put 10 photographers in a room with Miles Davis and you'll get 10 pretty distinct photographs of the man. Have 10 people create a pixelated version of a photograph, and you'll have 10 pretty similar results. Creating a pixelated version of this photograph is more akin to taking a photograph of the Mona Lisa - sure you can get a cool angle or do it with infrared film to get a different color palate, but it's still a picture of someone else's original work. You wouldn't say that the Miles Davis cover photo is "based on a Miles Davis concert", but rather it was created _at_ a Miles Davis concert. Similarly, in music, remixing a song can be a very creative process - but it is still a derivative work in that it wouldn't exist without the original which was created "from scratch". (Disclosure: I am/was a photographer who used to earn a living solely from licensing my photos for editorial purposes) Edit: I'm not attempting to discuss copyright laws (which are pretty clear), but rather the philosophy and justification behind the creation and copying of artistic works.

greendestiny 15y ago
Oops, I didn't read this thread closely enough when commenting. I've totally stolen you're argument in my reply to another comment here. Don't sue me :)
chc 15y ago
On the other hand, one could easily argue that there's a greater degree of artistic and stylistic transformation in creating pixel art than there is in moving two feet to the right and snapping another photograph and hoping this one turns out better than the last one. Heck, just look at the tie in the two versions. It would be hard to make it look that different in two photographs from anything like the same angle. Because the pixel art is an artistic representation of a tie rather than a blind copy of the photograph, the details are radically different even though it gives the same impression. It's a very artistic and skillful work. Additionally, as a newspaper editor and sometimes judge at competitions, I often look at many different photographs from different photographers at the same event. A lot of the time, the photos are barely distinguishable — a speaker saying "think" from one angle doesn't look vastly different from a speaker saying "should" a second later from a slightly different angle — yet none of the photographers would dream of suing the others for copyright infringement, despite the fact that one took the shot first and the other shot looks WAY more similar to the first than "Kind of Bloop" does to "Kind of Blue."

guelo 15y ago

This is a good post that is maybe significant morally but probably irrelevant within the law.

headShrinker 15y ago

I publish software as software developer, publish music as a musician, and 'copy' as photographer... publishing rights are on the top of my mind every time something of mine goes live. The writer tries to make a valid comparison between taking a picture, and taking an already created already popular picture and modifying it. There are a lot of variables involved process of taking a previously published picture and copying it, the writer want us to believe, the variables make it original. If the two art forms were comparable you could take that famous, extraordinary picture of Miles again, just like I could recreate that pixelated pic of the picture of Miles again. There are many problems with this: one, Miles is dead, two, the best photographer could not catch that moment at that time because one thing about photography is every shot is one in a billion trillion, no two shots are the same. Other problems with this comparison go on and on. If you wanted to extend that metaphor to music, 'there are only 88 keys on piano. Every song written is copying some sampling of those 88 keys. No need for music composition copyright anymore.' Obviously, this is not the case. Yet, sampling a segment from a song to use in your song is usually obvious to the listener and is commonly and 'easily' fought in court. photography is not copying and if you think it is, I will hand you my camera, and ask you to take that picture again.

nkassis 15y ago
I agree with you on this. I think the article would have been much better if he had focused on the fact that it wasn't just taking the original image directly and modifying it but making a brand new image based on the original. The pixalated image seems to have been hand drawn. I would like to know if taking an image like the one of Miles Davis and making a bust of it would be considered copyright infringment? If that is then the pixalated image is also infringment, if it isn't I don't see why the pixaleted image would also not be infringement. Is it the medium change that is the difference? I find this stuff confusing because then every time someone remakes that famous image of Marilyn Monroe with a look alike they are infringing.
Xuzz 15y ago
But just as you could recreate that (pixel art) image yourself, there's nothing stopping you from coming up with an already-created song yourself: the necessary information to create that (a piano, say) isn't dead like Miles Davis. Whether something can be re-created manually or not is not really a sane measure of creativity in the work.

rorrr 15y ago

Except Miles Davis allowed himself to be photographed (or "copied"), he even paid the photographer to use the photo on the cover. Nobody allowed Baio to "copy" that photo. I'm pretty sure Baio will lose, deservingly so.

thaumaturgy 15y ago

I would love to hear an opinion on photographing "The Bean" from a photographer that's defending Maisel. ("The Bean" is a sculpture in a public park which is protected by copyright and, therefore, illegal to take a photograph of. This seems absurd to most people, including photographers. More: http://newurbanist.blogspot.com/2005/01/copyrighting-of-public-space.html http://newurbanist.blogspot.com/2005/01/copyrighting-of-publ...) I wonder if there are photographers that would argue that it should be OK to photograph a copyrighted sculpture and that it should not be OK for another artist to create a derivative work from a photograph ... that would be an interesting argument to hear.

kragen 15y ago
TechDirt has covered cases over photography of sculptures a couple of times: http://www.techdirt.com/articles/20090804/0116455762.shtml http://www.techdirt.com/articles/20090804/0116455762.shtml (Di Modica v. North Fork and Di Modica v. Random House, over Charging Bull) and http://www.techdirt.com/articles/20090717/1400565585.shtml http://www.techdirt.com/articles/20090717/1400565585.shtml (Gaylord v. U.S., concerning a postage stamp with a photograph of the Korean War Memorial). In most countries, there's a "panorama exception": http://www.wipo.int/sme/en/documents/ip_photography.htm#1.6 http://www.wipo.int/sme/en/documents/ip_photography.htm#1.6 I'm not clear what the situation is in the US.
daimyoyo 15y ago
That seems beyond absurd. Are there any court cases challenging this?
wisty 15y ago
Photographers will argue that 90% of a photograph is composition, not the subject. Even though a pixelated adaptation of a photo is different, it's got the same composition. For example, that Miles Davis photo perfectly lines up his head and hands to fill the square CD cover. It also uses light and shade to make the subject's features really stand out. So through a the lens a photographer sees through (horrible pun), it's very derivative. A pixel artist will disagree, of course. They will say that composition isn't as important as getting the pixels just right. (Actually, bean is interesting because it actually changes the composition).

micks56 15y ago

Hypothetical: Baio downloads the latest Linux kernel. He changes all variable and function names to words of his choosing. Baio now says that he has the right to distribute BaioNix code free from GPL copyright restrictions and does so. The Free Software Foundation sues Baio alleging copyright infringement. Who wins and why? How is this different from or the same as Maisel v. Baio?

ajays 15y ago
The problem with hypotheticals is that there's no end to them. For every hypothetical you can come up with to show your point, I can come up with another to show mine. Please, just use some common sense: BAIO WAS NOT PUBLISHING THE PHOTOGRAPH! He was publishing the MUSIC ; the photograph was just incidental, to show (at a glance) the relationship between the original music and the remixed Bloop music. Do you REALLY think that people bought the album because of the pixellated artwork? It had absolutely NO impact on the sales. I've bought many a record (and CD) in my lifetime, and I don't recall ever buying a single one because of the cover. I am a hardcore supporter of the rights of the individual artists and musicians, and even I think Maisel was dead wrong.
- micks56 15y ago
  First, I can't say that I am surprised my post currently sits at 4 downvotes here on HN. A programmer's work is sacred while a photographer's is not. Use some common sense? Baio absolutely published the photograph, which is why we are all having this discussion. It doesn't matter why people buy something or if it had an impact on sales. A copyright holder retains the sole right to publish a work and its derivatives. That is the essence of how we protect works of art fixed in a tangible means of expression.
- antiterra 15y ago
  Insulting everyone by implying they haven't used common sense simply because they don't agree with you is incredibly fatuous. Chill with the righteous HEY YOU GUYS IF YOU JUST SAW IT MY WAY caps and italics; most of us aren't particularly dumb here. The pixel art was definitely published by any useful meaning of the word publish, 200 copies of the liner version. Also, it was the background of the site, clearly used as promotion. Let's say everyone accepts your argument that you can only violate artist rights if you gain a profit directly driven by the unauthorized use. It'd be perfectly fine to use a struggling unsigned band's best song to sell Volkswagens, since no one would buy a car because of music in an ad. Of course, the unsigned band was just about to license their song to sell cat food and pay the rent, but now the cat food manufacturer doesn't want the same song that's in that damn Volkswagen commercial. Oops! Shoulda moved faster, indie band! If you think that an artist or a musician should have no control over where their work is reproduced or published as long as it can be argued that it wasn't the main draw of any profit, you're not a hardcore supporter of the rights of individual artists and musicians. I wasn't around for any negotiations Maisel's or his attorney had with Baio, but it does see like Maisel was a bit of a jerk about this. A jerk solidly in his rights, however.

ajays 15y ago

I am really disappointed in the reaction of Maisel, and other photographers who're supporting the result of the lawsuit. Even if Baio copied the image pixel-by-pixel, what harm was done? Did anybody buy the Bloop because of the album artwork? Or because of the music? Come on, people! Show some common sense! A fine of a few 100 dollars would have been enough. On a tangential note: this is well worth a watch: http://www.everythingisaremix.info/watch-the-series/ http://www.everythingisaremix.info/watch-the-series/ No wonder pop music today is so crappy.

anonymous246 15y ago
I, for one, was glad to see an Internet celebrity whacked by an individual artist. As somebody else pointed out, the $32.5k he got probably went straight to the artist's lawyers. It was pretty telling that Baio licensed the music but not the cover art. The blog article never explains why his chiptune versions of the music don't count as fair use. And he admits he didn't accept the copyright infringement claim immediately but stalled for seven months. I am almost certain a different, happier arrangement could have been worked out if he'd agreed to license the artwork right at the beginning.
- kenjackson 15y ago
  I am almost certain a different, happier arrangement could have been worked out if he'd agreed to license the artwork right at the beginning. Maisel has said that he would never license this artwork for that purpose. So there would have been no licensing deal. "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." [1] 1. http://waxy.org/2011/06/kind_of_screwed/ http://waxy.org/2011/06/kind_of_screwed/
  - anonymous246 15y ago
    Yes, I was aware of that quote. Baio's article is (intentionally?) vague on when he offered to license the art. Once you cross a certain threshold, emotions take over and the artist might have just felt violated and decided to "take his ball and go home". If he offered to license after a few months of saying "fuck you" (from the artist's perspective), it is easy to imagine a post-fact justification like the above to deny a license. Even if Baio's first respnse itself offered to license, at the very least the "happier arrangement" would have been that $32.5k would have still been in Baio's pocket. In the absence of information about when Baio offered to license, I'd remain unconvinced that no licensing deal would have been possible.

Dramatize 15y ago

Do the people arguing that Baio stole the image also argue that photographers who take photos of building are stealing the architects designs? Isn't it the same thing?

Argorak 15y ago
You might or might not be surprised: in some countries, such as Italy and France, taking pictures of copyrighted buildings leads to derivative works. See, for example, the last paragraph of: http://en.wikipedia.org/wiki/Wikipedia:FAQ/Copyright#Derivative_works http://en.wikipedia.org/wiki/Wikipedia:FAQ/Copyright#Derivat...
minikomi 15y ago
Interestingly enough, the New Museum tends to feature heavily in Maisel's personal photos (albeit quite zoomed in - he does like his telephotos..). To be fair, it is just down the street from him.. eg. http://www.jaymaisel.com/v2/wp-content/gallery/recent-work/20091122_dp933_0167.jpg http://www.jaymaisel.com/v2/wp-content/gallery/recent-work/2...
stonemetal 15y ago
I don't really think so(though I am pretty sure I am wrong legally). One is highly transformitive. A picture of a house can't be lived in like a house can be lived in. A picture transformed in to a slightly different picture isn't all that different.
callmeed 15y ago
Building owners can require a property release in order for their structure to appear in a published work.
- ghaff 15y ago
  As I understand it (IANAL), this is a somewhat controversial point of IP law. However, in the interests of playing it safe, a lot of stock photo agencies do require property releases for certain iconic structures such as the Sydney Opera House. This is in the same vein as model releases however. it's not copyright but the use of a likeness for commercial purposes. I can take a picture of you on the street and use it for any editorial purpose. (Subject to not defaming you in some way.) But if I want to use that picture in an ad, I'd better have a model release.

kenjackson 15y ago

There are people that look like Miles Davis in that picture. If I take a picture of one of them, in the same looking clothes (although certainly not exactly the same) holding a similar trumpet, with similar lighting, would that violate copyright? At a quick glance maybe indistinguishable. At closer side by side inspection, any amateur investigator could spot the differences.

kragen 15y ago
If you do it on purpose, yes; see Rogers v. Koons (although Koons's copy was a sculpture, not another photo).
esrauch 15y ago
I'm not really convinced that would be sufficient; if you paint a duplication of an existing painting you are really stealing the likeness and profiting solely by distributing someone else's creative work. I think if someone did your example, if they could prove that your intent was simply to reproduce your creative work you would still be infringing even if you don't simply copy paste it. If you paraphrased Harry Potter and published it, it would probably still be copyright infringement even if no single sentence in the novel remains unchanged. It seems to me that it comes down to whether the work you made is a derivative work of someone else, particularly if you are directly taking their creative vision and adding nothing. Reproducing something in another medium easily could be the same thing as photocopying a book or selling prints of someone else's painting.
- kenjackson 15y ago
  I suspect you are probably right. What this leads me to believe more and more is that there is no natural right to art. I'm really feeling more like copyright needs to just go.
  - jibbit 15y ago
    It has nothing todo with what is 'natural'. There is no natural right to land ownership - it's just the system we choose democratically because we believe that the advantages it brings outweigh the certain misery it causes the impoverished. Few of us believe that abolishing the right to Private Property would, on the whole, bring about a net gain for the majority. Personally, i don't believe that the Maisel case has much to say about abolishing Copyright. That doesn't mean i'm not in favour of doing so, but Maisel is an edge case.

uriel 15y ago

The absurdity of so called "intellectual property" becomes ever more patent.

DannoHung 15y ago

I wish that there was a place where, as an experiment, intellectual property was entirely disallowed. No trademarks, no patents, no copyrights, no trade secrets, nothin'. Just to see what happened.

kragen 15y ago
The US was pretty close to this during the 1800s. While there were trademarks, patents, and copyrights, they were mostly notable for their weakness and absence compared to other countries at the time and the US today.
stonemetal 15y ago
That is easy just look at China. Little original content worth anything and a huge black market, though I guess in this case it would be a regular market. Everything would be driven to the cost of reproduction pretty quickly.
- danking00 15y ago
  This isn't a fair comparison. The cultures of the United States and the PRC are quite different on many levels. Copyright law is one of many variables. Furthermore, there actually are some good mainland musical acts. I'd like a more detailed analysis of the volume of original content before I passed it off as worthless.
  - stonemetal 15y ago
    PRC invented the free to play video game model because they learned early how worthless it was to actually ask their fellow citizens to pay for content. good mainland musical acts Good or not they aren't making money in a way that scales. edit: Worth in terms of getting paid not artistic worth.
- deleted 15y ago
  [deleted]
pash 15y ago

georgieporgie 15y ago

Meh. IMO the 'pixelated' 'art' isn't nearly pixelated enough, and not unique enough to qualify as art. Arguments based upon particularly bad selections of photoshop filters are not sufficient. The photo in question was beautifully captured, and the flippant way it's being treated is rather sad.

FlemishBeeCycle 15y ago
"Uniqueness" isn't a qualification for determining whether something is "art". Most art is not unique, and certainly not most photographs. Calling the pixelated version a "flippant" capturing is disingenuous, as it seems to be a reflection of your (apparent) dislike of pixel art rather than the artist's intentions.
- georgieporgie 15y ago
  Uniqueness is a qualification of artiness as far as I'm concerned. Merely reproducing something is not art, it's direct reproduction. Introducing unique style would be art. This slight pixelation is insufficient to qualify as such. I never called the pixelated version flippant. Rather, I called the treatment of the original flippant. Also, don't project a dislike of pixel art onto me.
  - FlemishBeeCycle 15y ago
    > Merely reproducing something is not art, it's direct reproduction. Introducing unique style would be art. One could then argue that photographs are merely reproduction of reality, and therefore not art. I fail to see why you think photographs introduce unique style but pixel art does not. > The photo in question was beautifully captured, and the flippant way it's being treated is rather sad. I apologize for suggesting that you dislike pixel art, but that's how I this sentence reads to me.
    - georgieporgie 15y ago
      One could then argue that photographs are merely reproduction of reality, and therefore not art. I fail to see why you think photographs introduce unique style but pixel art does not. Because that photography does not merely reproduce reality. The camera, lens, film type, lighting, everything produced an entirely unique image[1]. Furthermore, if you were sitting there, observing his playing, you would not have seen what came out in that photograph. That's what makes photography something other than mere reproduction. That's where the art comes from. Regarding pixel art, I don't really consider this piece to even be pixel art. It's just a somewhat blocky rendition of a photograph. Great pixel art is more akin to Picasso's deconstruction of a bull: http://www.artyfactory.com/art_appreciation/animals_in_art/pablo_picasso/pablo_picasso.htm http://www.artyfactory.com/art_appreciation/animals_in_art/p... Great pixel art deconstructs an image into the minimal set of elements necessary to convey the original idea. The 'pixel art' in question really does just looks like a few photoshop filters applied to a very well-known photograph. Or a bad resizing of a thumbnail. [1] I get the impression that the "photography is reproduction" crowd don't understand technical aspects of photography, like lens selection, aperture, dynamic range, the effect that film selection makes, etc. Yes, a midday, f/16 snapshot of "The Bean" may not entail meaningful artistic qualities, but that sort of distinction tends to be along the fuzzy line we draw between 'snapshots' and 'photography'.

dhughes 15y ago

I wonder what Andy Warhol would say about this situation, half his stuff was "theft".

pyre 15y ago
That was my thought too. Especially to the "it's theft if you can recognize the original" argument. Did Andy 'steal' the Campbell's soup can? You can obviously recognize it in his art, right? Someone should sue his estate!

regularfry 15y ago

I hope everyone on all sides can recognise how absurd the "it's theft if you can recognise the original" argument is. For starters, photographers have a long tradition of claiming copyright in reference photos of fine art, where the whole point is to create an image which is as alike the original as possible.

regularfry 15y ago
Just replying to myself to clarify, here: the situation seems to be different in the US and in the UK. In the US, there is explicitly no copyright in a mechanical reproduction of an original artwork. It would appear that there is in the UK.

ahoyhere 15y ago

If you ask me, this is a pretty open & shut case: he copied the photograph exactly, as much as exactitude was allowed for the medium. Baio brought barely anything new to the table at all. A tie pattern? That doesn't seem like enough to me to make it a true derivative work, and moreover, it was for a commercial purpose. It is telling that Baio got permission for the music but not for the album cover.

virtualritz 15y ago

I wrote a similar essay a while back: http://www.virtualritz.com/archive/on-plagiarism-creativity-in-the-digital-age/ http://www.virtualritz.com/archive/on-plagiarism-creativity-...

aptsurdist 15y ago

Some alternative album covers that are hopefully a show of support for Baio. Copyrights: kind of screwed. 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...

zwieback 15y ago

From a photography point of view I can see both sides of the argument, even though the article says it's not just a pixelation filter to me it's not modified enough to see any artistic effort. On the other hand, I don't really see the damage done to the photographer so many years after taking the picture. However, my first thought was "that's the Kind of Blue cover" not "that's the famous photo of Miles Davis". Kind of Blue is one of the greatest records of all times so if anyone should get compensated it's Columbia or Miles' estate. I just checked my vinyl version of the record and the photographer isn't even mentioned. No doubt it's a great photo but without Miles it would be just a photo of a guy with a trumpet and none of this would have happened.