That's my biggest issue -- the case didn't "go past" a cease and desist, because that was never the option. Fair use is not a bright line test, and we'll never know whether Baio's use was "fair" or not. All we know is Maisel had an issue with it, and the current legal system basically allows him to enforce that by threatening ruinous costs even if you win.
What Maisel did certainly wasn't illegal. Even if the use is a fair one, he's allowed to sue to find out. But to go directly to that step without trying to solve it in other ways seems meanspirited and counterproductive. Parker On Jun 27, 2011 9:39 PM, "Andre G Sirois" <[email protected]> wrote: > Sure, but isn't the digital image a cover of the OG photograph? I agree > that it's a fair use, in fact using the "idea" of the original photo and > not the expression of the idea in the actual transformation. But, i > guess, there are measures for doing covers of music in the system, but > not for other expressions that use the underlying structure. But, I'm > surprised that this whole case went past a cease and desist.... > > On Mon, 27 Jun 2011 12:17:57 -0700, Alex Leavitt wrote: >> He explained that discrepancy in a tweet, where he said it came down >> to a mechanical licensing fee. >> >> I couldn't find the tweet, but I found a blog post that c/p-ed it: >> _"Good question! The U.S. Copyright Act of 1909 allows anyone the >> right to record a cover song, as long as you pay a standard >> mechanical >> license, which I happily did; fair use doesn’t apply at all. But >> for the cover art, it’s an original illustration commenting on a >> famous photograph, which has a strong fair use defense. The problem, >> of course, is that fair use is far too ambiguous and actually affords >> very little legal protection to creators."_ >> >> On Mon, Jun 27, 2011 at 12:05 PM, Andre G Sirois wrote: >> >>> Just wonder why he licensed the music compositions and nothing for >>> the art? Because this is a graphic rendering, not necessarily >>> "sampling" in the traditional sense, how do you go about licensing >>> the underlying composition for a photograph? Should you have to? >>> Someone said it would have been ideal to take a picture just like >>> the original, and then base the digital render upon that instead of >>> Maisel's pic. But yeah, the chillin' effect on expression here is >>> waaaay cold. Well, at least Baio made this public.... >>> >>> On Mon, 27 Jun 2011 11:54:36 -0700, Alex Leavitt wrote: >>> >>>> I thought the pushback against Baio's interpretation was >>>> interesting. >>>> I was keyed into it on Twitter, where someone said they didn't >>>> see a >>>> right/wrong in the situation. There was also a large thread on >>>> Reddit >>>> where a lot of comments sided with Maisel. >>>> >>>> Alex >>>> >>>> --- >>>> Alexander Leavitt >>>> PhD Student >>>> USC Annenberg School for Communication & Journalism >>>> http://alexleavitt.com [4] [5] >>>> Twitter: @alexleavitt >>>> >>>> On Mon, Jun 27, 2011 at 10:42 AM, Ryan Prior wrote: >>>> >>>>> On Thu, Jun 23, 2011 at 6:25 PM, Parker Higgins wrote: >>>>> > In case you missed it, Andy Baio posted a long, smart, and >>>>> extremely sad >>>>> > blog post about fair use and his experience making a cool >>>>> piece >>>>> of art, >>>>> > going above and beyond to try to make sure everything was >>>>> above >>>>> board, and >>>>> > then getting screwed on a copyright issue and paying a ,500 >>>>> >>>>> (!!!) >>>>> > settlement. >>>>> >>>>> Oh no! I bought Kind of Bloop when it came out and then bought >>>>> it >>>>> again as a gift for my brother. So disappointed to hear he was >>>>> nailed. >>>>> _______________________________________________ >>>>> Discuss mailing list >>>>> [email protected] [1] [2] >>>>> http://lists.freeculture.org/mailman/listinfo/discuss [2] [3] >>>>> FAQ: http://wiki.freeculture.org/Fc-discuss [3] [4] >>>> >>>> Links: >>>> ------ >>>> [1] mailto:[email protected] [5] >>>> [2] mailto:[email protected] [6] >>>> [3] http://lists.freeculture.org/mailman/listinfo/discuss [7] >>>> [4] http://wiki.freeculture.org/Fc-discuss [8] >>>> [5] http://alexleavitt.com [9] >>>> [6] mailto:[email protected] [10] >>> >>> _______________________________________________ >>> Discuss mailing list >>> [email protected] [11] >>> http://lists.freeculture.org/mailman/listinfo/discuss [12] >>> FAQ: http://wiki.freeculture.org/Fc-discuss [13] >> >> >> >> Links: >> ------ >> [1] mailto:[email protected] >> [2] http://lists.freeculture.org/mailman/listinfo/discuss >> [3] http://wiki.freeculture.org/Fc-discuss >> [4] http://alexleavitt.com >> [5] mailto:[email protected] >> [6] mailto:[email protected] >> [7] http://lists.freeculture.org/mailman/listinfo/discuss >> [8] http://wiki.freeculture.org/Fc-discuss >> [9] http://alexleavitt.com >> [10] mailto:[email protected] >> [11] mailto:[email protected] >> [12] http://lists.freeculture.org/mailman/listinfo/discuss >> [13] http://wiki.freeculture.org/Fc-discuss >> [14] mailto:[email protected] > > _______________________________________________ > Discuss mailing list > [email protected] > http://lists.freeculture.org/mailman/listinfo/discuss > FAQ: http://wiki.freeculture.org/Fc-discuss
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