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Author Topic: Fair use  (Read 2384 times)

Offline Jonathan

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Fair use
« on: June 23, 2011, 06:54:48 PM »
Very interesting article on Copyright and fair use - http://waxy.org/2011/06/kind_of_screwed/

The examples at the bottom are really interesting....


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Offline Oldboy

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Re: Fair use
« Reply #1 on: June 23, 2011, 07:47:28 PM »
Thanks for posting JR.  :tup:

Offline nickt

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Re: Fair use
« Reply #2 on: June 23, 2011, 10:57:41 PM »
Interesting article. Don't know what the answer is.

Offline spinner

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Re: Fair use
« Reply #3 on: June 24, 2011, 02:15:20 AM »
For me, this is more a commentary on Lawyers and the litigious state of U.S. society.
And more, much more than this, I did it my way
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Re: Fair use
« Reply #4 on: June 24, 2011, 06:45:19 AM »
I'm not the American society is alone - the Brits seem to be having quite a nice time making decisions based on whether they will end up being sued or not...

Offline Hinfrance

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Re: Fair use
« Reply #5 on: June 24, 2011, 08:29:31 AM »
What struck me was the irony of this suit. Usually we hear about the poor downtrodden photographer being ripped off; here it is the photographer who is the litigious bully. There can be little doubt that he wouldn't have succeeded at trial, but the defendant didn't have the resources to get that far.

It is reckoned that the US legal system costs their economy roughly 3% of GDP.

Alas the US (and the world's) copyright laws are right up there with US patent law in being well past their sell by dates and being completely unfit for purpose.

Which reminds me of the old joke: what do you call a bus load of lawyers driving over a cliff? A promising start . . .

THIS would be funny if it were not so close to the truth  >:(
« Last Edit: June 24, 2011, 08:31:50 AM by Hinfrance »
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The theory seems to be that as long as a man is a failure he is one of God's children, but that as soon as he succeeds he is taken over by the Devil. H.L Mencken.

Offline Jonathan

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Re: Fair use
« Reply #6 on: June 24, 2011, 08:42:13 AM »
What struck me was the irony of this suit. Usually we hear about the poor downtrodden photographer being ripped off; here it is the photographer who is the litigious bully.

Or....the photographer for once had the wherewithal to protect his copyright and thereby strike a blow for all photographers who have been ripped off but copyright theft.  After all this case will make people think twice before copying somebody else's art.

There can be little doubt that he wouldn't have succeeded at trial, but the defendant didn't have the resources to get that far.

Hmm, can you explain why?  The defendant has admitted that basically they copied the photographer's work.  There are some good precedents that state the transferring a picture to another medium still infringes copyright.  His defence appears to be "other people have done it....it was for charity.....didn't think I'd get caught".

I have a lot of sympathy for him but I think in court he may have had a rougher time that you think.
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Offline Hinfrance

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Re: Fair use
« Reply #7 on: June 24, 2011, 12:34:36 PM »
Ah Jonathan, this is the joy of an adversarial legal system.

You see the precedents as siding with the mean spirited (I'm being charitable here, very much unlike him) Maisel, but I don't because the image hasn't just been copied in another media, it's been manipulated to fit the purpose to which it has been put, and is of much lower resolution, so it clearly easily passes the key test of fair use.

That said, judges, of course, can be very unpredictable. Didn't the 'artist' who simply copied the Marlboro posters win his fair use case, when he actually did just literally make a direct copy and call it art? Can't remember his name.

And Men At Work used two bars of the Kookaburra song as an audio reference to Australia in Down Under and got stuffed for millions of dollars in damages even though the tune to the Kookaburra song was a traditional Welsh folk melody and so shouldn't have been copyright in the first place. Oh, and most important, it wasn't what made the song a worldwide hit.
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The theory seems to be that as long as a man is a failure he is one of God's children, but that as soon as he succeeds he is taken over by the Devil. H.L Mencken.

Offline Jonathan

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Re: Fair use
« Reply #8 on: June 24, 2011, 04:23:22 PM »
Nice summary of the problem....

Quote
Should Jay have the right to claim the derived image isn’t fair use and ask for a cease and desist? Yes. He’s not, as Gizmodo and others say, a dick for his opinion. Should Andy have the ability to defend his stance that it is fair use. Of course. Should it take the kind of money that only either corporations or the very rich can easily afford to spend in order to get a judge’s ruling and find out? Definitely not. That’s the real problem here.

Taken from a v sensible article - http://duncandavidson.com/blog/2011/06/maisel_vs_baio

For some balance here's IMO a rather less sensible article - http://gizmodo.com/5814820/kind-of-a-dick-move - just because Jay Maisel has a nice house doesn't make him wrong.
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Offline Hinfrance

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Re: Fair use
« Reply #9 on: June 24, 2011, 04:44:20 PM »
Good links Jonathan.

The second article is not much different at core than the first, but rather more stridently expressed.

Having a big house doesn't make Maisel wrong, but going for the throat when a licence could have been negotiated does make him an <expletive deleted>

The fact remains, that whether you are right or wrong, if you do not have hundreds of thousands of dollars lying around to defend ambulance chasers like Maisel and his well funded thug lawyers, you will always lose.

And I think this, from the first article, is rather pertinent "Do the possible penalties in copyright law designed to make it painful enough for publishing companies to comply make sense when applied to individuals in the current world where it’s so easy for anybody to be a publisher?"

If all the grasping Maisel could have recovered was the fair price for the use of the material, perhaps double as a penalty, do you think for one second he would have even raised more than a curious eyebrow at this? The man is beyond the pale.

BTW, does anyone know anything more about the Marlboro Man thing, or did I just dream it?
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The theory seems to be that as long as a man is a failure he is one of God's children, but that as soon as he succeeds he is taken over by the Devil. H.L Mencken.

Offline Jonathan

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Re: Fair use
« Reply #10 on: June 24, 2011, 05:19:53 PM »
If all the grasping Maisel could have recovered was the fair price for the use of the material, perhaps double as a penalty, do you think for one second he would have even raised more than a curious eyebrow at this?

That's probably true - but punitive damages must have a place otherwise you could

(a) pay me £x to use a picture or
(b) use it and hope I won't notice, or bother if I do notice and worse case pay £x

So now that accountants run businesses nobody would pay for pictures because the overall cost would be less if you didn't pay for any and were "caught" on some.  A bit like import duty....

ETA: this is getting tough to argue because in principle Maisel is possibly right.  In practise he's a tosser.
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Offline Hinfrance

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Re: Fair use
« Reply #11 on: June 24, 2011, 05:46:12 PM »

ETA: this is getting tough to argue because in principle Maisel is possibly right.  In practise he's a tosser.
 

Apart from the (very remote possibility  ;)) that he has a case, you're not wrong.

As was said earlier the real issues here are the cost of settling the dispute, and the disproportionate penal damages - this gives those with the deepest pockets the victory regardless.  Although not the judge who tried to sue his dry cleaners for $54m (originally $67m) for losing his favourite trousers. HERE and HERE
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Offline jinky

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Re: Fair use
« Reply #12 on: June 25, 2011, 08:13:44 AM »
Interesting. Key points for me are that the revisions to the image do not make it look that much different to the original and the guy losing seems to have gone to great effort to get music release for the project, respecting the musician copyright, but had no such regard for the cover work. Didn`t even give it a thought by his own admission. Fair cop I`d say.

Offline Hinfrance

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Re: Fair use
« Reply #13 on: June 25, 2011, 09:09:39 AM »
Interesting. Key points for me are that the revisions to the image do not make it look that much different to the original and the guy losing seems to have gone to great effort to get music release for the project, respecting the musician copyright, but had no such regard for the cover work. Didn`t even give it a thought by his own admission. Fair cop I`d say.

Interesting view jinky. UK law maybe, French law definitely, US law, almost certainly not. The reason he didn't get a release for the cover art is that his view (probably correct under the US fair use precedents) was a new work. It definitely passes the 'golden rule' test for fair use in the US.

I reckon the way to stop the ambulance chasers is to change a couple of tort law rules:

1) In the event that the plaintiff does not prove their case they are always compelled to pay the full costs incurred by the defendent
2) In the event that the plaintiff does not prove their case they will be required to pay the defendent the full amount of the maximum amount of damages and restitution that they had sought to recover at any stage in their action.

You may think this bizarre, but although the image cannot be used for its original purpose, it can be endlessly and legitimately used to illustrate a journalistic narrative without licence. I know this is a definite in the US and France, but I am a bit behind on UK law (university was a long time ago), but I would be surprised if it is different - seems to be a pretty universal principle in western jurisprudence. So as long as this story runs Maisel can't do a damn thing to stop it.
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The theory seems to be that as long as a man is a failure he is one of God's children, but that as soon as he succeeds he is taken over by the Devil. H.L Mencken.

Offline spinner

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Re: Fair use
« Reply #14 on: June 25, 2011, 06:59:03 PM »
The next question for me, is Maisel being a dick because that's his nature, in which case I'm sure a licence agreement would have been prohibitive anyway. Or has he been lead to his 'dickness' by some shyster lawyer?
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