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Comment by reverend_gonzo | Hacker News Reader

Read: http://www.law.cornell.edu/uscode/17/107.html

This was neither criticism, comment, news reporting, teaching, scholarship, or research.

Furthermore, it was commercial use (regardless of whether the work created from the photo was itself sold, it was part of a product that was sold).

Whether it is fair use or not, we don't know, but I'm not a lawyer, I'm going to venture to say you're not a lawyer, he's not a lawyer, and he didn't contact a lawyer before using it.

He had entirely what came to him ... even if it was a bit harsh.

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You could argue that CAMPBELL, AKA SKYYWALKER, ET AL. V. ACUFFROSE MUSIC, INC. [1] wasn't a criticism, comment, news reporting, teaching, scholarship, or research (the court ruled that it was a parody). In CAMPBELL V. ACUFFROSE, the court also ruled that it being a commercial recording didn't stop it from being covered under fair use. There was another case which slips my mind at the moment that found similarly (that commercial use doesn't stop it from being fair use).

IANAL, and I am not familiar with all of the little details that go into determining whether something is fair use. From the reading of the applicable laws and precedents and having an actual lawyer go through those with me (I took a class last semester on IP law), however, I don't see anything that would outright bar this from being fair use.

[1]: http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=searc...

Parody comments on and criticizes the work that it parodies.

Let me clarify. From Baio's original blog post:

My lawyers and I firmly believe that the pixel art is "fair use"

As a courtesy, I am taking his word for this as well as assuming that he held the same belief before the legal trouble.

Given that assumption, we can blame him for making risky assumptions himself and for not contacting a lawyer to make sure, but we cannot blame him for doing "a minimum" of asking permission when he didn't believe that he was using the image in a way that required that minimum.

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