Jay Maisel is a tool.

[kaboom]

The guy that put together the tribute album, Kind Of Bloop, got sued for copyright infringement for using a pixel version of the photo on the original album cover. he settled out of court for $32,000 instead of trying to defend the work under fair use because $32,000 plus legal fees is cheaper than proving you are within your legal right to pay tribute to a work of art for fun.
http://gizmodo.com/5814820/kind-of-a-dick-move

[dubkitty]

you're assuming that he could have proved that he was within the bounds of fair use, which IMO is doubtful; Fairey had to settle out of court because he was certain to lose. you just don't get to appropriate other people's images for your profit-making ventures without the permission of the original owner. "fair use" doesn't mean that you can take someone's copyrighted work, make minor stylistic alterations to it that still leave it recognizable (and, in the case of the Miles photo, iconic), and then claim it as your own.

there's also a circular, self-contradicting quality to the artist's arguments: on the one hand, he wants to claim fair use, which is the doctrine that you have the right to use excerpts of copyrighted material e.g. for discussion in reviews, commentary, etc.; on the other hand, he also tries to claim that he's altered the image sufficiently that he's entitled to the sort of protection given to comedic parodies under Federal court holdings in the 1970s. it's no wonder, given his incoherent legal footing, that he settled out of court...he wasn't going to get the time of day from a judge.

[bigchiefbc]

I'm not sure you're correct there. Parody is within the purview of fair use. And just the fact that something is for commercial purposes does not blow a fair use claim out of the water. The SC has upheld fair use in cases where the use was for commercial gain. That is not the dispositive question. Take a look at Campbell v. Acuff-Rose

However, 32 grand is definitely less than it would cost for a good, established IP attorney to defend this case through the initial judgment, and the subsequent appeal that would definitely happen if he won at trial.

[unownunown]

you're assuming that he could have proved that he was within the bounds of fair use, which IMO is doubtful; Fairey had to settle out of court because he was certain to lose. you just don't get to appropriate other people's images for your profit-making ventures without the permission of the original owner. "fair use" doesn't mean that you can take someone's copyrighted work, make minor stylistic alterations to it that still leave it recognizable (and, in the case of the Miles photo, iconic), and then claim it as your own.

there's also a circular, self-contradicting quality to the artist's arguments: on the one hand, he wants to claim fair use, which is the doctrine that you have the right to use excerpts of copyrighted material e.g. for discussion in reviews, commentary, etc.; on the other hand, he also tries to claim that he's altered the image sufficiently that he's entitled to the sort of protection given to comedic parodies under Federal court holdings in the 1970s. it's no wonder, given his incoherent legal footing, that he settled out of court...he wasn't going to get the time of day from a judge.

well, 32,000 settled out of court is a lot less than the amount it would've taken to prove that he was within the bounds of fair use. i think it would've made a very interesting case had it gone to trial. it's hard to say what would've happened in court, but it's my personal opinion that baio's use of the photo was in the right. fair use covers works of art in the case that they are transformative. i'd say this pixellated recreation is, especially considering the album's theme.

and also like, dude lives in a mansion with 72 rooms in new york. it's not like baio's use of the photo was cutting into his already obese pockets.

i think if anything at all, this is just another reminder that the system only works if you can afford it.

[plhogan]

you're assuming that he could have proved that he was within the bounds of fair use, which IMO is doubtful; Fairey had to settle out of court because he was certain to lose. you just don't get to appropriate other people's images for your profit-making ventures without the permission of the original owner. "fair use" doesn't mean that you can take someone's copyrighted work, make minor stylistic alterations to it that still leave it recognizable (and, in the case of the Miles photo, iconic), and then claim it as your own.

there's also a circular, self-contradicting quality to the artist's arguments: on the one hand, he wants to claim fair use, which is the doctrine that you have the right to use excerpts of copyrighted material e.g. for discussion in reviews, commentary, etc.; on the other hand, he also tries to claim that he's altered the image sufficiently that he's entitled to the sort of protection given to comedic parodies under Federal court holdings in the 1970s. it's no wonder, given his incoherent legal footing, that he settled out of court...he wasn't going to get the time of day from a judge.

I disagree, and I don't think I could offer any better refutation than the article itself:

The Supreme Court has weighed in on fair use and said it's okay in the case of "transformative" works noting the judgement should focus "on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is controversially transformative, altering the original with new expression, meaning, or message. The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use."

He had a good chance of winning the case in my opinion, but given the average cost of copyright litigation at $300,000(!)
it makes perfect sense why he settled out of court. The paradox you created about claiming fair use and claiming the image has been altered sufficiently actually makes perfect sense from a legal standpoint.

[plhogan]

More importantly, "artist" living in huge new york mansion is a tool and copyright troll, and the real bullshit isn't even whether or not Fair Use Doctrine applies, it's that it should be decided by a judge not by the overwhelming cost of litigation.

[dubkitty]

you need to look at source material other than an article written by/for the guy playing victim here.

[plhogan]

Compelling argument.

[unownunown]

what other source material are you looking at?

here's a source on that figure btw

"Perhaps the most obvious incentive for mediating copyright disputes is the opportunity to curb the unusually high cost of copyright litigation. According to a recent study, the median cost of a copyright infringement suit is $100,000 through discovery and $200,000 through trial."
http://www.mediate.com/articles/anways.cfm#18

[plhogan]

Seriously though, I dont think it matters what we think of the application of Fair Use, the fact is if there really is a conflict both artists deserve their day in court. Let a judge decide what's right or wrong, not who has the bigger pocketbook. It's just bullshit that the costs are so astronomical that it becomes "settle or get ready for hell", that's extortion plain and simple and the definition of copyright trolling.

[dubkitty]

seems to me that if he and his attorney were so convinced of the ineffable rightness of his cause, they could have come to some arrangement that would have lessened the costs. if they actually wanted to go to court.

[plhogan]

Ok, that's simply not true. Christ, if all you had to do was ask your lawyer to charge you less wouldn't everyone do it? It seems more like you just want to paint this guy as "playing the victim" without any information to that effect.

[dubkitty]

and it seems to me that you and others are rushing to embrace Baio because of his "oh poor me" presentation, and because y'all by and large accept the modern notions that copyright means nothing and that it's basically OK, as multiple people have said explicitly here, to steal from the rich.

[dubkitty]

you've never negotiated rates with a professional? i've negotiated rates with attorneys.

[plhogan]

No I don't believe any of that shit. Just that it's crap to be forced to settle because court fees are so expensive. Come on man, why does everything have to become about our group acceptance of evil modern notions? It makes it hard to have any kind of conversation, and I know you have important stuff to say but don't make us wade through the unnecessary generalizations.

Why say we "explicitly stated" it's ok to steal from the rich, that's just something you're inferring and while that may seem like semantics it's the difference between having a debate and having a one-sided argument with an imaginary foe that doesnt even exist here.