Comment by 6stringmerc | Hacker News Reader

Comment by 6stringmerc | Hacker News Reader

Only fair this would revolve around Prince - keep in mind he ADAMANTLY HATED FAIR USE and wanted it against the law for people to cover his songs without his permission. He said so in interviews. I believe he was very wrong on this point and he would’ve abused copyright worse than the RIAA from beyond the grave.

Warhol’s work is barely transformative to me, as in was there tracing paper involved? Or basically the same concept? That’s not transformative that’s derivative. That term applies and it’s not fair use as derivative. These two concepts are rather clear and those who would argue it’s transformative (probably Masnik who is a quack when it comes to fair use) instead of derivative (correct term) are wrong.

Just like Masnik and Pharrell who chicken little’d the Blurred Lines ruling that it would kill creativity in music! Huh, how about that? Old Town Road paid for its samples and was a smash hit. So, yeah, welcome to a re-run of some tired absolutist arguments that fall apart.

>wanted it against the law for people to cover his songs without his permission

IANAL but note that covering a song is not fair use. However, with music specifically, it is (normally/always?) possible to pay for a mechanical license [1] which allows a musician to pay to cover a song. The same concept does not apply to many other types of creative works. For example, a playwright can (and many do) refuse to allow their work to be performed by amateur theater companies or to have the content modified.

[1] https://en.wikipedia.org/wiki/Mechanical_license

You are correct however there is a grey area if they claim it is parody. As a cover it is not fair use.

Yes, parody/satire is often a difficult case, e.g. https://constitutioncenter.org/blog/dr.-seuss-in-the-land-of...

Just playing off some well-known characters or some defining characteristic of a work doesn't necessarily constitute fair use although judges seem to often disagree on the particulars.

Correct, but Prince also denied each request by Weird Al - Weird Al had every legal right to release them but he chose not to because he is a class act, unlike doctor shopping selfish Prince Rogers Nelson.

Prince wanted the mechanical license mechanism to go away completely for everyone because he didn’t like it. That’s what I’m talking about - he sued over the dancing baby which helped build support for fair use. This article is the same crap Masnik said about Blurred Lines that it would kill creativity and the author should be admonished for such easily disproven pearl clutching FUD.

It is also worth remembering that a mechanical license is limited.

It allows you to perform a work yourself (privately) to create a new audio recording of that work[1]. What is known as a "cover". But other than sell the new cover audio as CD, mp3, etc, or have it get played on the radio or audio streaming services, there is not much more you can do.

It does not allow your cover band to perform the work publicly. (Normally this gets covered by the venue, either via ASCPA/BMI licensing, or via individual negotiation with the rights-holder, but in some cases, like temporary venue fully orgnaized by the band, the band may need to acquire such rights.) Remember that any form of live-streaming is also public performance.

It does not allow your cover band to create a music video, or to use your cover recording as background music in a video you create. (For either of these you need a "synchronization license" that the work holder can simply refuse, and there is no simplified ASCAP-like mechanism for handling these negotiations)

It may also surprise many to learn that recording artists are not technically entitled to royalties for use of their songs over the radio. Indeed, recording artists of any kind[2] only get royalties for digital music transmission when certain exemptions don't apply, and get no protection at all for non-digital transmission.[3]

The whole music copyright system is basically a giant mess, and does not work how a reasonable person would expect it to work.

Footnotes:

[1] Or to duplicate an existing audio recording if you also have permission of owner of the copyright for that particular audio recording.

[2] unless they happen to be the musical work copyright holder as well, which is not uncommon, but hardly universal.

[3] Realistically they were only granted this digital public performance right, because a digital transmission of a digitally recorded phonorecord is hard to distinguish from copying said phonorecord.

I dunno, I prefer the Warhol over the original. Should art like this not exist or be heavily discouraged or controlled by licensing fees? Copyright seems to be stuck in a scarcity mindset. Especially for static images whose market far exceeds the ability of artists to keep up with. The bigger problem seems to me that artists still don’t have a great way to sell directly to their customers.

You need to consider the affect on the original as well though. Without copyright would Lynn Goldsmith have ever taken the original photo? They have a degree in Psychology, in a world without copyright protections why would she pursue photography and filmography rather than becoming a professional psychologist?

Sure she'd probably still own a camera as a hobby, but would she have taken weeks to follow touring bands?

> That’s not transformative that’s derivative. That term applies and it’s not fair use as derivative

Pedantic, but the law is pedantic: fair use works are inherently derivative of the work they're based off of. Fair use is just an exception to the 'must get permission' requirement of creating a derivative work.

No, Fair Use must pass the four factor test, and you are wrong in your interpretation. Go look up the four factor test so you can correct yourself.

You're right about:

> Fair Use must pass the four factor test

but that doesn't make it "not a derivative work".

To make a derivative work, you need permission from the copyright holder.

However, 17 U.S.C 107 states that " the fair use of a copyrighted work... for purposes such as (purposes)...is not an infringement of copyright".

All it does is change what constitutes copyright infringement, it doesn't change the meaning of "derivative work" as defined in 17 U.S.C 101.

Everything Prince ever made was derivative. Without the artists that came before Prince, Prince was nothing. His ego was out of control.

Agreed. He chose opiate addiction over hip surgery because of his personal beliefs which he held more important than his health and eventually life. Not a good guidebook in my opinion.

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