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). 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.
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-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.
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).
The rules for taking pictures of The Bean were loosened soon after that article. Wikipedia says:
"The city first set a policy of collecting permit fees for photographs. These permits were initially set at $350 per day for professional still photographers, $1,200 per day for professional videographers and $50 per hour for wedding photographers. The policy has been changed so permits are only required for large-scale film, video and photography requiring ten-man crews and equipment"
I hadn't heard of this, wow. Oddly, the last time I was in Chicago I saw a police officer helping out by taking a photo of a group of girls in front of "The Bean" as I was taking photos of it as well.
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.
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.
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.
The burden of proof would be on the photographer to prove that it was a "copy" of their work rather than an independent creation.
At a certain point it comes down to this intangible idea of intent and process.
The Moe's burritos in Tallahassee has a series of photos on the wall that appear to be famous photos of musicians (eg. John Lennon, Slash, Bob Marley), but if you look closely it's a lookalike and there's a small caption beneath that says something like "Bob Smith, from Denver".
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.
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.
Say what you will about the art institute, but they disagree. "You may not reproduce the Art Institute of Chicago’s logo or building image, which are also trademarks, without an express license from the Art Institute of Chicago."
The "moment in time" argument is clearly weak when you compare it to copying from your neighbor's physics final. "No one could copy Feynman's sophomore year final exam! He's dead. It was a performance such as the world will never see again."
I agree with you, photography is art. There is a huge amount of talent luck and preparation required to get that shot. I'm just saying your defense of photography seems weak. It's pretty trivial to create derivative work with photography (hence the releases and licenses).
The reason we're never "forced" to agree, in a math problem sense, is the line between original and derivative is so subjective. A photo of a person is derivative. A photo of a crowd is unique. A photo of this building is a trademark violation, no matter how artfully done. The most pedestrian photo of the building across the street is fine.
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.
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.
A photo is much more than the subject getting photographed. It's also about the creative exposure used (lights, shadows, colors, implying or stopping motion) and about the composition done (the angle, the distance). These elements are used to express or induce a feeling or send a message or make the subject memorable (even though it's quite a boring subject).
photographers who take photos of building are stealing
the architects designs?
Copyright is about protecting the expression of a concept/idea.
Protecting buildings from photographers with copyright is stretching it, but it depends on the context. Also depending on the context, it is also an issue of free speech.
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.
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..
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.
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.
Interesting. So those live performing concerts prohibiting audience recording have no legal standing? But the audience recorded videos have the copyright?
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.
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.
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.
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.
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.
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.
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.
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.
"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.
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?
Completely different cases. The GPL covers binary distributions as well, and if your source compiles to the mostly-the-same binary that doesn't make it different enough, and you're bound by the GPL to release the modified source.
I think the concept of derivative work is more important here. IANAL but I suspect there's a difference between copying someone's Skip List class (maybe modding it a bit) vs. writing your own even if your own compiles to mostly-the-same binary. Your own wasn't derivative even if the end result was very similar.
Interesting hypothetical but mostly not relevant at all in this case. Details are lost making the analogy and when it comes to fair use, the details are often very important.
For example, are you changing the names of all the system calls? That will break lots of software. You have to figure out how important that is.
That's a discussion that really has no analogy in a discussion about transforming a real photograph to appear like it came from a Nintendo game like all the music on the album.
The only way it could really be worth discussing is pointing out how it is different. Your example seems like basically modifying the software for the sole purpose of evading copyright. In the Baio case, it is very clear that he's not simply making superficial changes in order to claim fair use.
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.
(Sorry for replying again)
A better analogy would be: you think porting the Linux kernel to a PDP-11 would be a smashing idea (for the PDP-11 enthusiasts out there). So you painstakingly obtain permission from Linus, etc. and get the kernel ported to the PDP-11 architecture. You put the release on a CD, and use a hand-drawn rendition of RedHat's CD cover as your cover (without asking RedHat).
Then RedHat turns around and sues you for violating their copyright.
[+] [-] grellas|14 years ago|reply
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). 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.
[+] [-] thaumaturgy|14 years ago|reply
("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-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.
[+] [-] wisty|14 years ago|reply
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).
[+] [-] ojbyrne|14 years ago|reply
"The city first set a policy of collecting permit fees for photographs. These permits were initially set at $350 per day for professional still photographers, $1,200 per day for professional videographers and $50 per hour for wedding photographers. The policy has been changed so permits are only required for large-scale film, video and photography requiring ten-man crews and equipment"
http://en.wikipedia.org/wiki/Cloud_Gate#Reception
[+] [-] kragen|14 years ago|reply
In most countries, there's a "panorama exception": http://www.wipo.int/sme/en/documents/ip_photography.htm#1.6
I'm not clear what the situation is in the US.
[+] [-] duck|14 years ago|reply
[+] [-] sunchild|14 years ago|reply
[+] [-] daimyoyo|14 years ago|reply
[+] [-] thegooley|14 years ago|reply
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.
[+] [-] kenjackson|14 years ago|reply
[+] [-] esrauch|14 years ago|reply
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.
[+] [-] FlemishBeeCycle|14 years ago|reply
Reminds me of the "What Color are your Bits" piece http://ansuz.sooke.bc.ca/lawpoli/colour/2004061001.php
[+] [-] JohnnyBrown|14 years ago|reply
[+] [-] kragen|14 years ago|reply
[+] [-] ajays|14 years ago|reply
On a tangential note: this is well worth a watch: http://www.everythingisaremix.info/watch-the-series/ No wonder pop music today is so crappy.
[+] [-] headShrinker|14 years ago|reply
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.
[+] [-] jfoutz|14 years ago|reply
Why would people ever need such a thing as a http://www.google.com/search?&q=photography+release+form if it's not copying someone's likeness?
The "moment in time" argument is clearly weak when you compare it to copying from your neighbor's physics final. "No one could copy Feynman's sophomore year final exam! He's dead. It was a performance such as the world will never see again."
I agree with you, photography is art. There is a huge amount of talent luck and preparation required to get that shot. I'm just saying your defense of photography seems weak. It's pretty trivial to create derivative work with photography (hence the releases and licenses).
The reason we're never "forced" to agree, in a math problem sense, is the line between original and derivative is so subjective. A photo of a person is derivative. A photo of a crowd is unique. A photo of this building is a trademark violation, no matter how artfully done. The most pedestrian photo of the building across the street is fine.
Fuzzy, ambiguous rules kinda piss me off.
[+] [-] nkassis|14 years ago|reply
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|14 years ago|reply
[+] [-] Dramatize|14 years ago|reply
Isn't it the same thing?
[+] [-] Argorak|14 years ago|reply
See, for example, the last paragraph of: http://en.wikipedia.org/wiki/Wikipedia:FAQ/Copyright#Derivat...
[+] [-] bad_user|14 years ago|reply
Protecting buildings from photographers with copyright is stretching it, but it depends on the context. Also depending on the context, it is also an issue of free speech.
[+] [-] stonemetal|14 years ago|reply
[+] [-] minikomi|14 years ago|reply
eg. http://www.jaymaisel.com/v2/wp-content/gallery/recent-work/2...
[+] [-] callmeed|14 years ago|reply
[+] [-] aidenn0|14 years ago|reply
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|14 years ago|reply
[+] [-] ww520|14 years ago|reply
[+] [-] DannoHung|14 years ago|reply
[+] [-] stonemetal|14 years ago|reply
[+] [-] kragen|14 years ago|reply
[+] [-] pash|14 years ago|reply
[+] [-] zwieback|14 years ago|reply
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.
[+] [-] dhughes|14 years ago|reply
[+] [-] guelo|14 years ago|reply
[+] [-] regularfry|14 years ago|reply
[+] [-] regularfry|14 years ago|reply
[+] [-] aptsurdist|14 years ago|reply
[+] [-] virtualritz|14 years ago|reply
[+] [-] ahoyhere|14 years ago|reply
It is telling that Baio got permission for the music but not for the album cover.
[+] [-] georgieporgie|14 years ago|reply
[+] [-] FlemishBeeCycle|14 years ago|reply
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.
[+] [-] Confusion|14 years ago|reply
[+] [-] uriel|14 years ago|reply
[+] [-] rorrr|14 years ago|reply
Nobody allowed Baio to "copy" that photo.
I'm pretty sure Baio will lose, deservingly so.
[+] [-] micks56|14 years ago|reply
Who wins and why? How is this different from or the same as Maisel v. Baio?
[+] [-] Jach|14 years ago|reply
I think the concept of derivative work is more important here. IANAL but I suspect there's a difference between copying someone's Skip List class (maybe modding it a bit) vs. writing your own even if your own compiles to mostly-the-same binary. Your own wasn't derivative even if the end result was very similar.
[+] [-] Goladus|14 years ago|reply
For example, are you changing the names of all the system calls? That will break lots of software. You have to figure out how important that is.
That's a discussion that really has no analogy in a discussion about transforming a real photograph to appear like it came from a Nintendo game like all the music on the album.
The only way it could really be worth discussing is pointing out how it is different. Your example seems like basically modifying the software for the sole purpose of evading copyright. In the Baio case, it is very clear that he's not simply making superficial changes in order to claim fair use.
[+] [-] ajays|14 years ago|reply
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.
[+] [-] ajays|14 years ago|reply
Then RedHat turns around and sues you for violating their copyright.