Photography Is "Copying;" More Fallout from Maisel vs. Baio | Hacker News Reader

Photography Is "Copying;" More Fallout from Maisel vs. Baio

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107 pointssecretwhistle104 comments

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.

You're pretty much spot on. After taking several copyright courses in law school, I can definitively say that the whole area of law is a clusterfuck. Even the seminal cases aren't consistent, let alone those on the periphery. Sadly, most of the closer cases seem to come down the a single judge's gut feeling. If either side has deep enough pockets, they can force the case to come down to a panel of judges' gut feelings, but even the Circuit courts hold wildly inconsistent rulings. I'm not bashing judges here: the law here isn't so much a guideline as it is guide posts. It's not surprising that there's not much consistency.

It's really frustrating for anybody trying to create. It can even be frustrating for the lawyers trying to practice in the field. I ran across this insightful, if slightly biased, post by William Patry, a fairly famous copyright lawyer, explaining his decision to shut down his personal copyright-based blog. He explains the decision as being partly motivated by the landscape of copyright law: http://williampatry.blogspot.com/2008/08/end-of-blog.html

Good comment; I agree with almost all of it. I would add, though, that it would also be possible to invent a legislative solution that's not absurdly narrow, for instance by providing an inexpensive and reasonably prompt means of arbitration.

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).

I think the pixel version of this artwork is much more derivative than an 8-bit cover version of the music, yet they sort permission from Mile Davis's estate to use his music. Then they settled out of court. I have no idea why this is the internet's latest crusade.

If they'd have given 1000 artists (including photographers) the brief of an album cover of Kind of Blue, I doubt any would have been so similar to Maisel's. Give 1000 pixel artists Kind of Blue and ask then to do a straight pixel version and they'd all be indistinguishable. And despite the supposed outrage for the rights and artistic merit of pixel art, I haven't seen any pixel artists stand up for this straight copy of a photograph. I don't think any of them would consider it a particularly enlightening representation of their art form.

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"

http://en.wikipedia.org/wiki/Cloud_Gate#Reception

TechDirt has covered cases over photography of sculptures a couple of times: http://www.techdirt.com/articles/20090804/0116455762.shtml (Di Modica v. North Fork and Di Modica v. Random House, over Charging Bull) and http://www.techdirt.com/articles/20090717/1400565585.shtml (Gaylord v. U.S., concerning a postage stamp with a photograph of the Korean War Memorial).

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.

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.

It's probably worth reading up on this topic: http://www.wipo.int/sme/en/documents/ip_photography.htm

That seems beyond absurd. Are there any court cases challenging this?

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.

On the other hand, one could easily argue that there's a greater degree of artistic and stylistic transformation in creating pixel art than there is in moving two feet to the right and snapping another photograph and hoping this one turns out better than the last one.

Heck, just look at the tie in the two versions. It would be hard to make it look that different in two photographs from anything like the same angle. Because the pixel art is an artistic representation of a tie rather than a blind copy of the photograph, the details are radically different even though it gives the same impression. It's a very artistic and skillful work.

Additionally, as a newspaper editor and sometimes judge at competitions, I often look at many different photographs from different photographers at the same event. A lot of the time, the photos are barely distinguishable — a speaker saying "think" from one angle doesn't look vastly different from a speaker saying "should" a second later from a slightly different angle — yet none of the photographers would dream of suing the others for copyright infringement, despite the fact that one took the shot first and the other shot looks WAY more similar to the first than "Kind of Bloop" does to "Kind of Blue."

> 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.

Interesting because I would have said exactly the opposite. 10 photographers (all using the same pose from the same location of course) would make nearly identical photos. But the pixel artists would have been totally different.

Take a look at how the cuff or the diamonds on the tie were drawn - you really think everyone would have done it exactly the same?

There are many pictures of Miles Davis but all are different to the one on the kind of blue album. That was the point of the OP.

How about if you gave the photo to 10 people and told them to do whatever they wanted to in Photoshop. You would definitely have 10 unique pieces then right?

Sure, but I bet you could still look at all 10 photoshop manipulations and say "yep, those are all based on that original photo".

I don't follow your argument.

If a painter and a photographer both depict the same scene, your argument seems to be suggesting that the "degree of 'artistic' creation" from the photographer would somehow be greater than that of the painter? How would that work? Although painting from real life allows for perhaps better capture of a scene, it is arguably similar to painting from a photograph of the same scene.

There's a much higher degree of creativity / variability inherent in drawing / painting / pixelating over than in photography simply by the mechanical process alone.

> "There's a much higher degree of creativity / variability inherent in drawing / painting / pixelating over than in photography simply by the mechanical process alone."

I'd argue you don't understand photography at all if you're making this claim, particular when one is talking about fine art photographers (as opposed to, say, sports). This is especially true today, where photographers are making pixel-level adjustments after squeezing the shutter.

Photography is not as simple as pointing the camera at something and pressing the shutter. Hell, just off the top of my head:

- What sensor size/film size? Your choice influences the depth of field, resolution, sharpness, and dynamic range of the result.

- What film? Your choice influences the color balance, reproduction opportunities, dynamic range, grain structure of the final image.

- What lens? Your choice determines the perspective of the image, as well as the requisite warping or flattening that comes with it. It also determines contrast (both macro and micro), sharpness, not to mention specialty lenses where you're determining the shift and orientation of your plane of focus. Lens selection also determines the look of bokeh (out of focus areas of the image) and flare - controlled by the size and shape of the diaphragm.

- What filters? Polarizers alter your composition significantly by eliminating certain forms of reflections. Neutral density filters allow for longer exposures to increase the effect of motion blur (or other creative uses). Colorized filters allow for a conscious control of particular tones in monochrome images (think of it like a transfer function).

- What shutter speed? This controls the amount of blur you have, the sharpness of the final image, and creative use of it can be used to isolate subjects in motion, freeze them, or any combination of the above (and that's just one common use of fine shutter speed control).

- What aperture? This determines the sharpness of the final image, as well as contrast, and the depth of field (e.g., the blurry "out of focus" areas of the image). A skilled photographer controls depth of field precisely, including exactly the things he/she wants, and nothing that is unwanted.

Nooow we get beyond gear selection into composition:

- Perspective. Where are you shooting from, where are you shooting to?

- Exposure. How is the image lit? What is the dynamic range of light? (the range from brightest to darkest portion of image) - the decision here affects the look of the image in a huge way.

- Framing. This is self explanatory really. What subject(s) do we include and how?

- Focus. How thick is our depth of field? What do we want to include in focus? What do we want to exclude?

And nowadays you have the litany of tools (Photoshop being just the beginning) where photographers are exercising a great deal of control over their images, often at the pixel level.

I highly object to your claim that photography is inherently less creative/variable than drawing, painting, or pixelating. This reflects a complete ignorance of what is required to create a photograph. The fact that modern DSLR cameras have essentially thrown all of the above on full-auto doesn't remove the fact that professionals and serious practitioners are using all of these creative variables to their benefit.

Your view of photography is akin to looking at a photocopier and saying "well, drawing isn't that creative".

I understand your position, and perhaps I should have better clarified my own. I did not mean to imply that photography was not a technical or creative field, rather by "mechanical process", I meant the physical act of creation.

I put a brush to canvas, or a pencil to paper. My gestures are effected by micro muscle movements, the interplay between the grain of the canvas and the camelhair in my brush, the way I personally perceive my subject. No two lines drawn by my hand, no two drops of ink flecked from my pen will ever be the same. My emotional state at the time will felt in my brush strokes.

All your points I agree with, but ultimately photography (by its process) has less potential for a physically variable and personal experience (for example the connectedness that a sculptor feels with the work physically formed by their hands) specifically in the dimension that I am talking about.

Also, your points on composition (perspective, framing,focus,exposure) are present in other visual mediums (although focus and exposure aren't generally terms that I hear a lot of painters use, it's still there), and arguably more under your creative control.

Finally, with photography you are limited to that which exists already in this world (once you start getting heavily into post-processing, it's hard to call keep calling it "photography").

Oops, I didn't read this thread closely enough when commenting. I've totally stolen you're argument in my reply to another comment here. Don't sue me :)

> 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.

Bad analogy, you're assuming that each of the 10 people is recreating a single image and getting 10 similar pixilated results -- this is akin to the 10 photographers being in the room with Miles and being told to stand in the same spot and shoot at the same angle at the same time... you'd end up with 10 similar but not identical results then too.

Instead; pair your 10 photographers with 10 pixilators, and you end up with 20 pieces of art.

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.

I suspect you are probably right. What this leads me to believe more and more is that there is no natural right to art. I'm really feeling more like copyright needs to just go.

It has nothing todo with what is 'natural'. There is no natural right to land ownership - it's just the system we choose democratically because we believe that the advantages it brings outweigh the certain misery it causes the impoverished. Few of us believe that abolishing the right to Private Property would, on the whole, bring about a net gain for the majority. Personally, i don't believe that the Maisel case has much to say about abolishing Copyright. That doesn't mean i'm not in favour of doing so, but Maisel is an edge case.

Actually, the most prominent scholars in this field often do include land ownership as a natural right. John Locke, the modern father of natural law, described natural rights as, "life, liberty, and estate". I think its largely settled philosophy now.

Copyrights are still much more debatable. The main defense for pro-copyright activists are that they're necessary for the economy. I tend more and more to the belief that the economy will change as a result -- a freer economy, but a different one.

It was explained to me that big companies can't simply copy ideas/concepts. Example: They ask for an expose of work and then don't hire the original artist but reproduce it inhouse. Also think publishers or even Hollywood: Scripts are advertised by their authors to many producer (like the proverbial taxi driver who tells every prominent passenger of his movie idea) but this only can work if manuscripts are protected. The other example is something like GNU: If you kill copyright the GNU Public license would cease to exist.

    there is no natural right to art

As a hobbyist photographer I can tell you - good photography is freaking hard.

And IMHO, there are 2 kinds of people in this debate - the ones that can make good photos and the ones that bitch about the existence of copyright.

There is probably at least one person in the world that not only looks like Miles Davis, but wears the same type of clothes, plays the same kind of instrument and can be photographed in the same posture. People in real life tend to duplicate each other: you don't even need to try to recreate the situation: it already exists multiple times.

I don't doubt that, and photographs of that person aren't infringing unless you are deliberately reproducing the original work. I think the burden would fall onto the copyright holder to prove that the elements of the new work are lifted from the original work beyond reasonable doubt that it was just a coincidence.

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.

Reminds me of the "What Color are your Bits" piece http://ansuz.sooke.bc.ca/lawpoli/colour/2004061001.php

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".

If you do it on purpose, yes; see Rogers v. Koons (although Koons's copy was a sculpture, not another photo).

I remember that a rap band had to make a studio re-enactment of George Benson's "give me the night" to use as a sample in a song because Benson simply would ask to much. However using the cover version went OK.

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.

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.

I think you missed the point of Everything is a Remix. He's not positing that remixes are bad... He's describing out how art gets created.

I, for one, was glad to see an Internet celebrity whacked by an individual artist. As somebody else pointed out, the $32.5k he got probably went straight to the artist's lawyers. It was pretty telling that Baio licensed the music but not the cover art. The blog article never explains why his chiptune versions of the music don't count as fair use. And he admits he didn't accept the copyright infringement claim immediately but stalled for seven months.

I am almost certain a different, happier arrangement could have been worked out if he'd agreed to license the artwork right at the beginning.

I am almost certain a different, happier arrangement could have been worked out if he'd agreed to license the artwork right at the beginning.

Maisel has said that he would never license this artwork for that purpose. So there would have been no licensing deal.

"And it's worth noting that trying to license the image would have been moot. When asked how much he would've charged for a license, Maisel told his lawyer that he would never have granted a license for the pixel art. "He is a purist when it comes to his photography," his lawyer wrote." [1]

1. http://waxy.org/2011/06/kind_of_screwed/

Of course he's going to say there's no price he'd have licensed the image at - he was trying to get damages out of Baio, so why put a limit on how much his damages were?

I remember when Kanye West could not license the THX sound, used it anyway and got sued. Can't really remember the internet outrage back then.

Yes, I was aware of that quote. Baio's article is (intentionally?) vague on when he offered to license the art. Once you cross a certain threshold, emotions take over and the artist might have just felt violated and decided to "take his ball and go home". If he offered to license after a few months of saying "fuck you" (from the artist's perspective), it is easy to imagine a post-fact justification like the above to deny a license.

Even if Baio's first respnse itself offered to license, at the very least the "happier arrangement" would have been that $32.5k would have still been in Baio's pocket. In the absence of information about when Baio offered to license, I'd remain unconvinced that no licensing deal would have been possible.

You have a point about the music. The songs were handcrafted by musicians and still needed a license. It is logical that the same is true for the cover, even if it was handcrafted by a painter.

That said Maisel is still a jerk.

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."

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.

"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."

Solid point.

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.

Do the people arguing that Baio stole the image also argue that photographers who take photos of building are stealing the architects designs?

Isn't it the same thing?

You might or might not be surprised: in some countries, such as Italy and France, taking pictures of copyrighted buildings leads to derivative works.

See, for example, the last paragraph of: http://en.wikipedia.org/wiki/Wikipedia:FAQ/Copyright#Derivat...

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?

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..

eg. http://www.jaymaisel.com/v2/wp-content/gallery/recent-work/2...

Building owners can require a property release in order for their structure to appear in a published work.

As I understand it (IANAL), this is a somewhat controversial point of IP law. However, in the interests of playing it safe, a lot of stock photo agencies do require property releases for certain iconic structures such as the Sydney Opera House. This is in the same vein as model releases however. it's not copyright but the use of a likeness for commercial purposes.

I can take a picture of you on the street and use it for any editorial purpose. (Subject to not defaming you in some way.) But if I want to use that picture in an ad, I'd better have a model release.

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.

"Charging a cover" is not relevant to determining whether the performance is a "public performance" for copyright purposes.

No, but the amount of royalties you pay is somewhat dependent on it.

Interesting. So those live performing concerts prohibiting audience recording have no legal standing? But the audience recorded videos have the copyright?

Their standing is that they sell you a ticket on the condition that you will not record the performance (or that you're not allowed to have a recording device on your person).

Possibly, but the music being played (and, thus, the audio recording of said music) is copyrighted. Maybe if you disabled the microphone?

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.

This isn't a fair comparison. The cultures of the United States and the PRC are quite different on many levels. Copyright law is one of many variables. Furthermore, there actually are some good mainland musical acts. I'd like a more detailed analysis of the volume of original content before I passed it off as worthless.

PRC invented the free to play video game model because they learned early how worthless it was to actually ask their fellow citizens to pay for content. good mainland musical acts Good or not they aren't making money in a way that scales.

edit: Worth in terms of getting paid not artistic worth.

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.

You mean like China?

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 wonder what Andy Warhol would say about this situation, half his stuff was "theft".

That was my thought too. Especially to the "it's theft if you can recognize the original" argument. Did Andy 'steal' the Campbell's soup can? You can obviously recognize it in his art, right? Someone should sue his estate!

This is a good post that is maybe significant morally but probably irrelevant within the law.

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.

Some alternative album covers that are hopefully a show of support for Baio. Copyrights: kind of screwed. http://aptsurdist.wordpress.com/2011/06/23/a-story-by-waxy-o...

I wrote a similar essay a while back: http://www.virtualritz.com/archive/on-plagiarism-creativity-...

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.

Uniqueness is a qualification of artiness as far as I'm concerned. Merely reproducing something is not art, it's direct reproduction. Introducing unique style would be art. This slight pixelation is insufficient to qualify as such.

I never called the pixelated version flippant. Rather, I called the treatment of the original flippant. Also, don't project a dislike of pixel art onto me.

> Merely reproducing something is not art, it's direct reproduction. Introducing unique style would be art.

One could then argue that photographs are merely reproduction of reality, and therefore not art. I fail to see why you think photographs introduce unique style but pixel art does not.

> The photo in question was beautifully captured, and the flippant way it's being treated is rather sad.

I apologize for suggesting that you dislike pixel art, but that's how I this sentence reads to me.

One could then argue that photographs are merely reproduction of reality, and therefore not art. I fail to see why you think photographs introduce unique style but pixel art does not.

Because that photography does not merely reproduce reality. The camera, lens, film type, lighting, everything produced an entirely unique image[1]. Furthermore, if you were sitting there, observing his playing, you would not have seen what came out in that photograph. That's what makes photography something other than mere reproduction. That's where the art comes from.

Regarding pixel art, I don't really consider this piece to even be pixel art. It's just a somewhat blocky rendition of a photograph. Great pixel art is more akin to Picasso's deconstruction of a bull:

http://www.artyfactory.com/art_appreciation/animals_in_art/p...

Great pixel art deconstructs an image into the minimal set of elements necessary to convey the original idea. The 'pixel art' in question really does just looks like a few photoshop filters applied to a very well-known photograph. Or a bad resizing of a thumbnail.

[1] I get the impression that the "photography is reproduction" crowd don't understand technical aspects of photography, like lens selection, aperture, dynamic range, the effect that film selection makes, etc. Yes, a midday, f/16 snapshot of "The Bean" may not entail meaningful artistic qualities, but that sort of distinction tends to be along the fuzzy line we draw between 'snapshots' and 'photography'.

If we are lazy for a second and combine the concepts of art and originality/copyrightability (which I'm guessing from your comments is broadly your position), why would gallery shots of fine art accrue their own copyright, and not this pixelated example?

why would gallery shots of fine art accrue their own copyright

I don't know what this means. Examples?

Here's an example (from http://www.tate.org.uk/about/media/copyright/):

" In terms of artistic works, if the artist is alive, or has been dead for less than 70 years, there will be a separate copyright in the work itself that is additional to the copyright in the photographic reproduction."

Here you have a gallery stating that there is copyright in the photograph of a work of art, distinct from that in the work of art itself. As I understand it, this is standard for reproduction photos.

In that photo, the gallery art in question occupies less than 1/4 of the frame, and is partly obscured. The photo is composed primarily of green background, contrasted with a blonde girl in red.

I don't understand how that is a 'reproduction' photo at all.

I don't understand how you can have read the page I linked to and have come away with the impression that I was in any way referring to that specific photo.

Here's a simpler example of the type of work which I, and the Tate, are primarily talking about: http://www.tate-images.com/results.asp?image=N01543

See the "Digital image (c) Tate, London" watermark on the image? Given that the original painting is 122 years old and therefore well out of copyright itself, the gallery are asserting that there is copyright in the photograph of the painting.

Here's another one: http://www.tate-images.com/results.asp?image=N06032

In this case, the painting itself is only 61 years old, so the original is still in copyright, as indicated by the "© The estate of L.S. Lowry/DACS 2011" entry on the right; note that there is still a "Digital image © Tate, London" watermark on the reproduction photo: one "orginal" work, two copyrights.

Having a quick google around, there's an interesting short article at http://www.museumscopyright.org.uk/bridge.htm about a US case brought by a UK company which seems to clarify that the position is different in the US and in the UK: in the UK, there is still presumed to be copyright in photographs of artwork, while there is not in the US, so it's a little more complicated than I thought (who knew?).

Look at the tie. This was handmade.

The absurdity of so called "intellectual property" becomes ever more patent.

Except Miles Davis allowed himself to be photographed (or "copied"), he even paid the photographer to use the photo on the cover.

Nobody allowed Baio to "copy" that photo.

I'm pretty sure Baio will lose, deservingly so.

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.

I think your attempt at a distinction in paragraph 1 actually proves my point. Yes, GPL covers binaries, or however else the code is distributed. Just like how copyright law protects a Miles Davis picture on an album cover, a CD liner, and on a web page when it is "mostly-the-same."

Baio was mostly the same. Koons was not. See these. http://newsgrist.typepad.com/underbelly/images/silksandals.j... http://newsgrist.typepad.com/underbelly/images/koonsniagara_...

The second picture by Koons is transformative. Baio's is not even close to Koons.

People seem to like downvoting you. Anyway, I agree with you on the mostly-the-same part, and I think it's a derivative work anyway. The article's "You're just copying what was copied" is an interesting argument that I agree with but it's not really relevant to the copyright laws--again applying to a programming example, just because you bought a licensed copy doesn't mean someone can copy your copy without a license.

Do I think people should be able to make pixelized versions of photos for whatever purpose? Sure. Do I think the current law would be okay with that? No.

If you're talking about fair use, context matters. Two pictures out of context don't really prove anything.

Those two pictures are not out of context. They are from the case that Baio cited himself. On Baio's blog (http://waxy.org/2011/06/kind_of_screwed/) he cites an "influential paper on fair use" as his reasoning and authority for his own fair use argument.

These pictures show what the paper writer is actually using as the "transformativeness" example. Baio never bothered to dig into the writer's citations to figure out the details. Trying to claim his own work is similar to the Blanch v. Koons case is a mistake. They aren't alike at all.

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.

I don't think that your distinctions are fair.

Source code changes that I am suggesting will allow the new BaioNix to functionally "work" just as Linux does, just like how Baio created a picture but it "works" as a homage to an earlier Miles Davis photo.

And I am not suggesting trivial code modifications for the sole purpose of evading copyright. The changes that BaioNix has produce a simpler naming convention that enables programmers to understand the code easier.

People are acting like Baio has a slam dunk case but had to settle because he doesn't have money to defend. In reality Maisel has a slam dunk case and Baio wisely settled and cut his losses.

Is this a just result? As with everything, that is up for debate. But if you want to change the law to allow Baio-works one needs to consider what else it affects.

It's not a slam dunk case, it's a 50/50 case. What we know for sure is that it was a dick move on the part of Maisel. Sort of like calling the cops on your neighbor because their dog barks a lot, even though you don't actually hear it when you're sleeping or working or doing anything else important.

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.

Insulting everyone by implying they haven't used common sense simply because they don't agree with you is incredibly fatuous. Chill with the righteous HEY YOU GUYS IF YOU JUST SAW IT MY WAY caps and italics; most of us aren't particularly dumb here.

The pixel art was definitely published by any useful meaning of the word publish, 200 copies of the liner version. Also, it was the background of the site, clearly used as promotion.

Let's say everyone accepts your argument that you can only violate artist rights if you gain a profit directly driven by the unauthorized use. It'd be perfectly fine to use a struggling unsigned band's best song to sell Volkswagens, since no one would buy a car because of music in an ad.

Of course, the unsigned band was just about to license their song to sell cat food and pay the rent, but now the cat food manufacturer doesn't want the same song that's in that damn Volkswagen commercial. Oops! Shoulda moved faster, indie band!

If you think that an artist or a musician should have no control over where their work is reproduced or published as long as it can be argued that it wasn't the main draw of any profit, you're not a hardcore supporter of the rights of individual artists and musicians.

I wasn't around for any negotiations Maisel's or his attorney had with Baio, but it does see like Maisel was a bit of a jerk about this. A jerk solidly in his rights, however.

First, I can't say that I am surprised my post currently sits at 4 downvotes here on HN. A programmer's work is sacred while a photographer's is not.

Use some common sense? Baio absolutely published the photograph, which is why we are all having this discussion.

It doesn't matter why people buy something or if it had an impact on sales. A copyright holder retains the sole right to publish a work and its derivatives. That is the essence of how we protect works of art fixed in a tangible means of expression.

(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.

The PDP-Linux maker should be sued for copyright (and trademark) infringement. Buyers may believe they are getting RedHat Linux because that is what the cover is, but they are not getting Red Hat Linux.

Once again, the programmer's work is sacred and we need Linus's permission, but an artist who creates cover art did trivial work and deserves no protection.

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