Fair use isn’t much good if you can’t afford it

I don't know why the above post is getting down-modded. The point is definitely a good one, even if it was stated flippantly. As has been stated in previous threads on this subject, the image captures the creative work of the creator of the horn, the creator of the suit, etc. The photo is itself a mechanical transcription of a handful of other people's creative works. For the photographer to insist that his arrangement of other people's creative works is original, while somebody else's re-interpretation of the photo is not, is just wrong.

Good observation. And exactly correct. Lucky for Maisel, the barber, wardrobe stylist, tailor, and lighting designer can't (and wouldn't) sue him for derivative use of their efforts.

I absolutely agree, but I think that the creative part of photography comes from having "the eye" for knowing what a good photo will be, before it's taken. The photo would not have existed to be as good if the photographer did not apply his creative insight in capturing the photo.

But in my opinion, for photographers to dictate the terms of their photos' usage is nothing but hiding behind the status quo (the current copyright laws) to stroke their own egos. They don't want anyone else to be mistaken for as the "creator" of the photo, because that is just too damaging to their ego. They can't just capture an image for people to enjoy (by seeing, or by remixing, or whatever), they have to make sure their name is attached to it and in people's faces for all eternity.

It's really childish, but it's human behavior. We evolved in a world of finite resources where ownership of and the ability to defend those finite resources meant survival and status. Now we have this new medium where we can create resources and duplicate them nearly infinitely, but we're still hard-wired to try to control every one of those infinite copies, because they're MINEMINEMINEMINE. But we obviously can't watch what everyone is doing, so we just mercilessly beat down anyone who looks like they're getting any attention from using a copy.

Sorry for the wall of text, as a digital artist I feel pretty passionate about the subject.

> You know, where you put some light sensors in front of something you did not create yourself and pretty much just collect the photons that bounce off it.

You're forgetting the editing that almost all commercial photographs get.

> You know, where you put some light sensors in front of something you did not create yourself and pretty much just collect the photons that bounce off it.

I'm going to go out on a limb and guess the original in this case was a studio shot, in which the lighting, background, angle of photography, and positioning of the subject were all chosen by the photographer in service of the vision that yielded the artifact generated by "collecting photons". Even outside a studio, a photographer has a lot of control over all of the variables. Weather is about the only thing they don't.

To reduce photography to such extremes is akin to saying coding is pretty much typing. By the time that happens, a lot of creativity has already been spent.

Is this legal advice?

It's from the Jay Maisel Wikipedia article, which is a lot more notable than the Facebook page for him.

It's there because it was uploaded from Andy Baio's article and described as his own CC-licensed work despite his assertion that it was fair use of Maisel's copyrighted image. I wouldn't count on it being there for too long given the level of scrutiny Wikipedia images endure.

Where do you get this impression Jay Maisel is trying to suppress the album? He settled for a substantial amount of money and got the image pulled, so he has no reason to be unhappy at this point.

Buying the album is support for Andy and this project, not a way to frustrate Maisel.

Twitter isn't really amplifying it, people are. It's the dynamics of an angry mob. Twitter just facilitates communication that's closer to a group of people in real-time than previously possible.

That's a fairly good sign that the legal system has been co-opted to the point where reasonable settlements are no longer possible.

In this case, it's worth noting that the troll (who is very VERY rich) was, himself, making absurd threats of ruinous financial violence. Indeed, that's what has infuriated so many people. The gag-order that Maisel tried (and failed) to attach to the settlement only underscored (a) his odious personal nature and (b) the sense that, shrill arguments aside, he was knowingly in the wrong. That is to say, nobody who wins a fair fight fairly feels any need to hush up the details.

It's also worth noting that unlike, say, an actual witch-hunt, or a mob interested in keeping a marginalized group on the outs, the most well-known cases are focused - almost exclusively - on egregious bullies, this example being a case-in-point. It's almost as though the body politic is developing an autoimmune response after excessive exposure to a dangerous pathogen.

The core of the issue is that we have a system of "public" law that has been transformed into a tool for private abuse by the rare few who can afford to use it. As such, it is no longer available for more widespread and lower-stake dispute resolution. This civic loss is considered "unacceptable collateral damage" by those few who'd restrict use of the courts to their own enrichment. The growing presence of justifiably angry mobs who are willing to target bullies suggests that isn't the case.

A democracy is only as good as it's justice system. Ours, quite frankly, is a mess. If the street is the only source of protection for the majority of people, we've lurched a step closer to open class warfare, and that's a very sorry state indeed.

First, neither you, nor I, nor, indeed lawyers, get to decide "fair use". It has to go to trial. That's part of the point of the article.

Second, the test for fair use doesn't include some percentage of copying. Here (http://arstechnica.com/tech-policy/news/2011/03/copyright-tr...) is a case where copying an entire article got ruled "fair use".

Third, in my judgement, the transformation was quite extensive. Compare representations of neckties in both images. Lots of transformation. Is my judgement better or worse than yours?

While the transformation was minor, the visual change was quite drastic, and moreover is an incredibly apt description of the album he created.

IANAL, but for real, it looks a great deal like fair use to me.

To me, it does look like fair use. But I'm not a lawyer. I found this argument pretty compelling, though:

http://mrgan.tumblr.com/post/6840184364/hand-pixelated

"That cover is NOT the original photo, downsampled. It’s a hand-crafted, precisely drawn interpretation of the source. Anyone who’s ever seriously put pixels to screen will tell you that this is an actual artistic method, one with its own challenges, tricks, and yes, an aesthetic."

That's not the point. It's possible what he did should be protected by fair use. It's also possible that it shouldn't be and that he owed money. The point is, there was never a trial to decide it one way or another, he had to settle, not because he thought his case was weak, but because it was cheaper than if he did take it to court, win or lose.

The problem is that attempting the fair use defense results in an "I win or you lose" case, where either the defendant wins the case and loses some money, or the defendant loses the case and loses some more money.

Get a prepaid card, use it.

The argument is, as has been stated many times between the two posts "fair use". The fact that it obviously came from a copyright image does not disqualify it for fair use; it is required for fair use to even make sense. Commercialness is also not a requirement for fair use.

The main argument, that would likely pass in court, is that this use can in no way be mistaken for the original image, nor can it replace it or have any effect on its market value. It's a bit more complicated than that, but that's the gist.

That tin hat of yours comfortable?

Asserting that the government is going to make thinking illegal makes regular ol 2012 alarmists look good in comparison.