Kind of Screwed (2011) | Hacker News Reader

Kind of Screwed (2011)

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76 pointsbrunoc16 comments

Fair Use is not a right; it's an affirmative defense (https://en.wikipedia.org/wiki/Affirmative_defense) that needs to be used in court.

Here's a recent (long) video on fair use that I enjoyed, and might be interesting for some of you here who are interested in this sort of thing: https://www.youtube.com/watch?v=SyucXC6pWug

Not that I agree with lawyers suing over this, but one problem is that the pixel-art nature of the Miles Davis cover is very subtle rather than obvious chunky pixels as is typically done. At one level I applaud that as historically accurate; graphics even in the 1980s weren't as awful as a lot of pixelart implies, but on the other hand I can understand the argument that the pixel art and the original were too close.

It would be interesting to hear why he paid royalties to get a license for the songs but not for the cover art.

Hiring artists to create retro versions of the music and hiring an artist to create a retro version of the album cover seem like pretty analogous situations.

Can't speak for him myself, but there are clear and well-established rules and the songwriting industry has a well-defined and straightforward process for paying royalties for publishing cover versions of songs. And there's no question either legally or ethically whether publishing a cover version of a song without paying a license fee is fair use of the songwriting IP.

There's no similar existing framework or precedent for photographs, and the rights involved are much less clear. There's plenty of evidence of other similarly transformative artwork based on photographs (described in the article) is considered fair use in the artistic community. I find most convincing the fact that the photograph is primarily documentation of a factual situation (Miles Davis playing trumpet), something which many other people saw, and which in and of itself is not copyrightable. Whereas the songwriting involved in creating the music for the album is entirely creative and not documentary in the slightest.

I think there are plenty of other good arguments about why his use of the photograph was Fair Use in the article.

Thanks for that insight.

FYI: https://observer.com/2011/06/andy-baio-jay-maisel-kind-of-bl...

> "It breaks my heart that a project I did for fun, on the side, and out of pure love and dedication to the source material ended up costing me so much — emotionally and financially."

It seems like he just overlooked the cover art piece. That sucks how much damage to a project an unmalicious seemingly small mistake can make on the legal side. In that regard, it's valuable to have access to lawyers and legal resources just to avoid all the BS that comes along with lawsuits and legalese. It's not just a matter of being intelligent or capable, but also able to jump through all the hoops the right way in the legal system, which puts most non-lawyers at a disadvantage.

> "Anyone can file a lawsuit and the costs of defending yourself against a claim are high, regardless of how strong your case is. Combined with vague standards, the result is a chilling effect for every independent artist hoping to build upon or reference copyrighted works."

As can be popularly seen vis-a-vis DCMA takedown requests, the trivial-ness of of sending a C&D or demand letter out to virtually anyone makes this process a money-making machine for law firms. It's a win-win for them. You settle and they make a profit, or you draw out a legal battle at a higher cost and they make a bigger profit. Honestly, it's a tarnish on our legal system that it so often rewards those with bigger wallets.

Not all lawyers are bad, and there are times where the 'little guy' may be thankful IP law exists, but it's when someone like this gets screwed that the legal system seems unfair. It's one thing to speak softly and carry a big stick, and another to pick a fight for lunch money.

If he'd created an anonymous persona for his pixel artwork, Maisel would have been left pounding sand. So if there's no reason to link stuff to your meatspace identity, why risk it?

This. But in a softcore version of the same way that you shouldn't be using your real name while advocating for gay rights in Saudi Arabia: it's a solution eliding a larger problem.

Back in the day, when I was discovering Usenet, it was common advice. But of course, tools for ~anonymity were primitive then. No Tor. No VPNs. Remailers were about it.

How do you mean exactly, can you explain pls? If I create a fake person with Gmail account and tumblr blog, this fake persona posts the artwork, I use it (crediting the fake persona), they can't sue me. But they can problably force me to take down the image anyway?

> ... I use it (crediting the fake persona) ...

No. There is no "I use it". Only the fake persona does.

> But they can problably force me to take down the image anyway?

If you created an anonymous Tor onion site, they'd have a hard time forcing you. But of course, then it's less accessible. So you might just use hosting that caters to spammers and worse.

It sucks that this happened and I'm glad he found a tolerable payout and resolved the issue with the owner of the photograph.

All that said, this chiptune record is a beautiful homage to the source material. I highly recommend anyone that's interested to find it and give it a listen.

So where is the list of people who give money to Jay Maisel so I can opt not to do business with them anymore? Do you really change anyone's opinion on most issues other than giving a hint which behaviors are unprofitable because they piss people off?

How about a ublock origin filter that auto removes anything created by the artist? Obviously no content filter belongs in default but it could be offered.

That's a waste of time. It won't affect the artist in the slightest.

And the artist is so old he's unlikely to live much longer, he's probably years past the point where he cares. He probably doesn't even know how to use / care about the Internet.

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