I think "Where do you draw the line?" is a fair question. In that series of increasingly pixelated pics, personally, I say #7 is fair use, #6 is not. That's where I'd draw the line as a layman on the jury.Originally Posted by Ari
...Mike
I think "Where do you draw the line?" is a fair question. In that series of increasingly pixelated pics, personally, I say #7 is fair use, #6 is not. That's where I'd draw the line as a layman on the jury.
...Mike
I'd say the cut off is at image ten in the progressively-pixelated images because it's with image ten that the original image's iconic nature is no longer recognizable - that's the infraction in my mind, capitalizing off of someone's work through recognizable imitation.
Some rather strong words being thrown around here...
Well, apparently the guy did go all out and acquired all of the other rights associated with the project - he just did not clear the rights to an image.
Upon reading through the entire thing, it definitely does NOT sound like an intent to steal. If anything it DOES sound like:
a) A confusion between "derivative" and "transformative" concept on Any's part. Whether he was right or not we will never find out, because he committed a basic mistake of testing the boundary without having enough cash to see the entire fight through. He settled, which is neither here nor there, but just a legal form of extortion.
b) A mean-spirited approach by Jay himself. Given the extent to which Andy went to correctly handle and attribute all the other rights, would it really be too unreasonable to approach him directly and try to settle the matter without the vultures (lawyers)? Either deny the right to use or make a fair settlement.
But no, he "felt violated that his image was pixelated" (sic!) so he decided to send a hit squad and extort somebody's annual salary from the guy.
My bottom line:
Andy might really be completely mistaken, but it still feels like an honest mistake rather than illicit intent.
Jay may be completely legally right, but his entire approach feels anything but morally correct.
Until yesterday, both of them were completely annonymus to me, but after reading all of this, I wish there were more people like Andy doing business on the 'Net (as opposed to the likes of Zuckerberg et al) even if they did make honest mistakes here and there.
I also wish there were fewer mean-spirited and shallow-minded "celebrities" like Andy who don't think twice about squashing somebody out of existence if they dare look cross at them but to whom the entire concept of honesty, mistake or not, seems to be more alien than the guys who do their lawn every morning.
Oh you're just falling for some whining hipster douchebag's characterization of the little poor kid versus some rich guy. Can't you see the manipulation?
Andy probably makes ten times your rate and while $32K isn't chump change, it's a speedbump, not a derailment.
Maisel was once a struggling child artist too. That he bought a decrepit old building for peanuts once he started making a little money doesn't make him Donald Trump. He busted his ass for over fifty years and doesn't deserve this kind of rip-off.
Back before the internet and conceptual art culture made it semi-OK to rip off famous photos, professional artist who stole images risked much more severe penalties... since Andy should have known better and is a popular online figure -- he should pay a significant amount here.
Frank, I didn't say $32K is Andy's rate, I said it was somebody's annual salary.
It doesn't really matter what Andy's rate is (or Jay's for that matter), it's about principle.
Where we differ is the definitions. I still see it as an honest mistake rather than an attempted ripoff on Andy's part. And I still see it as a mean-spirited all-out on Jay's part.
It doesn't mean Andy was right, it only means that it doesn't not seem to me that he was a sleazebag. It doesn't mean that Jay is wrong either, but the way he reacted does make him look like one.
Most of the world exists and operates in the huge continuum of nuances somewhere between the extremes, but internet fora seem to be largely unaware of that.
Thanks. I had a look -- it's clearly a derivative, same as the Obama picture, not to mention Warhal's tomato soup can.
You can get away with it if you're rich/famous enough, otherwise the lawsuits are going to be financially ruinous -- you lose if you fight it, you lose if you settle.
It's blackmail -- the copywrite laws have become for the benefit of those with deep pockets, no longer in the best interests of the public.
Wilhelm (Sarasota)
Ignorance of the law has never been a valid excuse. And if it was really an honest mistake, Andy would (should) have admitted so when the legal proceedings began, and I bet there would have been a different outcome.
Lastly, Jay would have courting more copyright abuse by NOT suing. The act of doing nothing would have jeopardized any future copyright infringement suits he might bring. Letting this one go sets a precedent that could be used against Jay going forward. If you are aware of a possible infringement case, you have to pursue it (whether you win or not) or risk losing future suits due to lack of pursuing a former case.
As I read it he's still claiming he's not wrong, what he did was "fair use", he just didn't want to (or couldn't) finance the legal battle. This implies he'd do it again if it weren't so expensive.Frank, I didn't say $32K is Andy's rate, I said it was somebody's annual salary.
It doesn't really matter what Andy's rate is (or Jay's for that matter), it's about principle.
Where we differ is the definitions. I still see it as an honest mistake rather than an attempted ripoff on Andy's part. And I still see it as a mean-spirited all-out on Jay's part.
It doesn't mean Andy was right, it only means that it doesn't not seem to me that he was a sleazebag. It doesn't mean that Jay is wrong either, but the way he reacted does make him look like one.
Most of the world exists and operates in the huge continuum of nuances somewhere between the extremes, but internet fora seem to be largely unaware of that.
... Mike
Yes, he makes it very clear that he has a clear opinion and that he is sticking to it. And I agree with him. In fact, I agree enough that I am going to buy the album and contribute my $5 to offset his damage.
I just don't think he would win this particular case because the final art is too close to the original one, but I do agree with him that a clearer interpretation of the law IS needed concerning the difference between derivative and transformative works threshold. The fact that the likes of EFF got involved only confirms that.
I also think that Maisel acted like a complete dushbag who went all-in not so much because of the copyright - there are things called cease-and-desist letters - but because he felt like sticking it to the digital crowd.
The fact that there was a settlement means that neither side was completely sure of their legal standing so they both essentially chickened out of a process that could have cost them much more to really prove their case.
That didn't do a thing to really protect neither Maisel's nor anybody else's rights in the future, nor did it solve anything - the entire process only kicked the can further down the road and added some $15-20K to some lawyers' pockets.
I do not understand how you could consider it a "mistake", since Andy is basically still saying that he is right and has not done anything wrong. Andy is also not some poor blogger up against "the big guy", he sold his business upcoming.org to Yahoo 6 years ago and surely has enough money to take it to court. He would have, if he'd have any chance of winning. Instead he can fold, pay a small cost, and make a blog post about how he is the victim. He gets publicity, does not have to lose in court, and a sob story for why he had to pay the settlement.
Fair use would never have covered using a photo in its entirety as album art for something sold commercially. The fact that it was changed to the 8-bit look does not change this, you are not allowed to import any copyrighted photos into a Nintendo 8-bit game and claim "fair use" since the image is simplified, at least not if you intend to sell the game commercially.
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