Ad
Ad
Ad
Pages: [1] 2 3 »   Bottom of Page
Print
Author Topic: Fair use and Jay Maisel  (Read 9480 times)
stsk
Newbie
*
Offline Offline

Posts: 6


« on: June 23, 2011, 01:30:45 PM »
ReplyReply

Cut from Daring Fireball, a Mac blog:

"Andy Baio:

In February 2010, I was contacted by attorneys representing famed New York photographer Jay Maisel, the photographer who shot the original photo of Miles Davis used for the cover of Kind of Blue.

In their demand letter, they alleged that I was infringing on Maisel’s copyright by using the illustration on the album and elsewhere, as well as using the original cover in a “thank you” video I made for the album’s release. In compensation, they were seeking “either statutory damages up to $150,000 for each infringement at the jury’s discretion and reasonable attorneys fees or actual damages and all profits attributed to the unlicensed use of his photograph, and $25,000 for Digital Millennium Copyright Act (DMCA) violations.”

Baio settled for $32,500, even though he believes his pixelated rendition of the album cover falls squarely under fair use. He simply couldn’t afford the legal fight. Andy’s post is a terrific overview of fair use.

What a dick this Maisel guy is.

 ★


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

"

I can't help but believe that this kind of overreaching will create a backlash...

So, what do you as a photographer, think about Fair Use?
Logged
michael
Administrator
Sr. Member
*****
Offline Offline

Posts: 4810



« Reply #1 on: June 23, 2011, 02:27:05 PM »
ReplyReply

Personal opinion – Jay was in this instance well within his rights. "Fair Use" does not involve the expropriation of someone else's art for commercial gain.

Frankly, if it had been me in Jay's place, I'd likely have done the same.

Michael
Logged
DennisWilliams
Newbie
*
Online Online

Posts: 45


« Reply #2 on: June 23, 2011, 02:39:17 PM »
ReplyReply

I do not believe in "fair use". The only "fair use" is at a memorial service. My photo is my photo and without written consent I  do not abide with anyone using it for any purpose. 

 Sony wanted to use my images of an actor on one of their sit coms  as set decoration.  The images are thirty years old now and don't resemble the 50 year old the actor is today- or the quality of work I now routinely produce- but they still contacted me for written permission before going forward.   And they were very polite.

dw

For all we know JM may have signed a contract with Miles Davis stating the image would never be reproduced or used in any other fashion than on that album and that all outtakes would be destroyed. The pixelated rendition could have violated Maisel's contract. I side with Jay.

Logged
PierreVandevenne
Sr. Member
****
Offline Offline

Posts: 510


WWW
« Reply #3 on: June 23, 2011, 02:40:14 PM »
ReplyReply

On the process: the guy simply should have asked before, accepted Maisel's refusal and found another image. That, at least, is clear cut.

On the fair use issue: that type of pixelation can hardly be called a creative work imho. It's of course a fuzzy area - Warhol is often given as an example of borderline fair use. But, really, anyone can produce similar pixelations of well known images, automatically. The "creative process" is, in this case, essentially moving a couple of sliders.

Compared to the recent darfurnica case for example

http://www.nadiaplesner.com/Website/darfurnica.php

it is quite obvious to me that the simple standard pixelation of an existing well known picture, for a purpose in essence identical to the known use of that original picture is not creative work.

Also, but that is even more subjective, there is no message in that "work", unlike in the darfurnica case.


Logged
Owin
Guest
« Reply #4 on: June 23, 2011, 03:32:46 PM »
ReplyReply

There is no such thing as fair use, or shouldn't be. You either have permission to use a photograph or you don't. It's only common decency to ask permission before using a photographer's image. Depending on the use, be it charity or some other form of non-profit use then there possibly would be no cost to use the image, but permission might be granted. For someone to profit out of a photographer's image without permission, it is out of the question without recompense to the photographer/owner of the image. They are opening themselves up for a lot of financial hurt.

The guy in the blog said he tried to keep everything above board, even licensing the songs, so he does recognise the rights of the artist to his own work, but he never thought of the rights of the photographer Jay Maisel, who produced the image he was stealing, whether or not he altered the image. At the end of the post he has a number of increasingly pixelated renderings of the same photograph to which he says, "Where do you draw the line?" In my eyes if the image is still recognisable as an image produced by someone then you need permission to use that image, end of story.

Wonder what he would say if someone came along and finding his car sitting on the driveway, unlocked and with the keys in the ignition, drives it away and when caught the thief says 'Fair use, it was there and available'. I’m pretty sure he would expect the full power of the law to descend rapidly.
« Last Edit: June 23, 2011, 04:02:09 PM by Owin » Logged
ckimmerle
Sr. Member
****
Offline Offline

Posts: 442



WWW
« Reply #5 on: June 23, 2011, 04:35:49 PM »
ReplyReply

Those of you who are stating that "fair use" should not exist should study up on the issue. For instance, without fair use, it would be next to impossible for media outlets and websites to preview books, CD's, DVD's or art auctions or exhibits as they would be unable to use any images. Artists of all genres rely on such coverage. As well, the limited educational uses currently allowed by "fair use" would cease to exist. How is that good?

"Fair use" is far from definitive and has some very gray areas but, in this case, it wasn't even close and Maisel was absolutely in the right.
Logged

"The real voyage of discovery consists not in seeing new landscapes, but in having new eyes." Marcel Proust

Chuck Kimmerle
WWW.CHUCKKIMMERLE.COM
Owin
Guest
« Reply #6 on: June 23, 2011, 04:52:26 PM »
ReplyReply

For instance, without fair use, it would be next to impossible for media outlets and websites to preview books, CD's, DVD's or art auctions or exhibits as they would be unable to use any images.

Of course they would be able to use the images, just ask the artist in question for permission first. Surely it's up to the artist who has use of their product. The artist can then decide if you are making profit from the image. If you are then isn't it fair the artist gets their cut?
Logged
Gary Brown
Full Member
***
Offline Offline

Posts: 211


« Reply #7 on: June 23, 2011, 05:39:48 PM »
ReplyReply

Of course they would be able to use the images, just ask the artist in question for permission first. Surely it's up to the artist who has use of their product. The artist can then decide if you are making profit from the image. If you are then isn't it fair the artist gets their cut?

If it weren't for fair use, that very message of yours would make you a copyright infringer, because you included a quote from ckimmerle's message, and he owns the copyright on that message text.

(He granted rights to Luminous Landscape to copy his copyrighted text for purposes of displaying his message to you and me, but he didn't grant you the right to copy his copyrighted text; it's “fair use” that did that.)
Logged
RFPhotography
Guest
« Reply #8 on: June 23, 2011, 08:24:09 PM »
ReplyReply

Of course they would be able to use the images, just ask the artist in question for permission first. Surely it's up to the artist who has use of their product. The artist can then decide if you are making profit from the image. If you are then isn't it fair the artist gets their cut?

Can you envision the logistical nightmare of what you're suggesting? 

Without fair use, works would never be able to be reproduced in a classroom as teaching aids.  Never be able to be reproduced in textbooks.  Fair use does and should exist. 

The use in the case in question doesn't fall under the fair use exemption and Maisel was correct to protect his IP rights.
Logged
tom b
Sr. Member
****
Offline Offline

Posts: 869


WWW
« Reply #9 on: June 24, 2011, 02:04:16 AM »
ReplyReply

What I find disturbing is the level of gambling that occurs in the legal system.

Right or wrong, the risk of failure can far outweigh any form of justice in many cases. Plea dealing in the USA seems to fit in that category of "how much are you willing to risk, how much can you afford if things go pear shaped?". It just seems too much like poker in some situations.

In his article "It's not a winning ticket" Samuel Lewis writes about the perils of trying to get compensation for the use of pictures without permission. This time it's how much can I afford to risk to chase someone before I make a loss on the action?

On the bright side, working in publicly funded Distance Education over the past 14 years there have been people all too willing to let us use their imagery. There have been artists, writers etc who have been extremely generous with their time and creativity. It happens every day with little or no compensation being asked for.

Cheers,


Logged

Rob C
Sr. Member
****
Offline Offline

Posts: 12213


« Reply #10 on: June 24, 2011, 02:25:34 AM »
ReplyReply

Of course copyright must be respected, but I can't see that applying nor, for that matter, being abused by posting on LuLa where, by definition and inviting practical display, there is the facility to quote and re-publish within LuLa.

It's up to posters here if they are willing or not for their material to be reused within the site: if yea, then post, and if otherwise, don't. That's what writing in such places is all about.

Rob C
Logged

Owin
Guest
« Reply #11 on: June 24, 2011, 05:40:03 AM »
ReplyReply

Can you envision the logistical nightmare of what you're suggesting?  

Without fair use, works would never be able to be reproduced in a classroom as teaching aids.  Never be able to be reproduced in textbooks.  Fair use does and should exist.  

The use in the case in question doesn't fall under the fair use exemption and Maisel was correct to protect his IP rights.

What logistical nightmare? Who for? You as a photographer, or the teacher?

So it's a logistical nightmare for a teacher in preparing for a lesson and who wants to re-produce an image in a class handout or to illustrate a point in the lesson, to send a  simple email "I'm a teacher and would like to use one or two of your images in my lessons, is this OK?"

Or it's a logistical nightmare for you as a photographer who has just received said email to reply 'Yes that's OK with me"?

What happens if that teacher uses the image for something which goes against your moral or ethical principles, whatever they maybe? Would you be happy to allow the use of your image in this way? I certainly wouldn't.

As for text books, as far as I'm aware a text book is published and bought, the profits being made by the publishing company and the author, therefore you use my image I want paying for that privilege.

I agree the original argument in this does not fall under fair use and therefore the thief, because lets face it that's what he is as he is profiting from a use of another person's property without permission, should feel the full force of the law.

As far as I'm concerned if you use my image I want to know for what reason and if you are making any money from using my image then fairs fair, I should in some way share in that profit.
« Last Edit: June 24, 2011, 05:46:16 AM by Owin » Logged
RFPhotography
Guest
« Reply #12 on: June 24, 2011, 09:02:21 AM »
ReplyReply

The logistical nightmare in a school board, because that's where it would likely be done, not the individual teacher, trying to (a) make sure they find every instance where there might be a case where permission should be granted, finding a way to contact every artist, author, musician, etc.; some of whom are likely dead but copyright does survive death, then communicating with every one of those people in some way, shape or form.  It's not practical.

No one's saying that a copyright holder shouldn't benefit if a work is being used for commercial purposes.  But there should be exemptions for fair use.  Obviously you don't agree.  And that's fine.  Approach your legislators to change the law.  Pissing and moaning on a web discussion board won't do anything.   
Logged
ckimmerle
Sr. Member
****
Offline Offline

Posts: 442



WWW
« Reply #13 on: June 24, 2011, 09:19:37 AM »
ReplyReply

What logistical nightmare?

One small example: A popular recording artist has a new album. News organizations, entertainment websites, magazines, etc. want to review it and, as is par, include a photo of the cover art. These organizations may number in the thousands, and would all want "permission" around the same time. Do you really think it's going to be feasible for such requests to be responded to. It's not as simple as "please ask permission". In your world of "no free use", detailed written information from each organization would need to be provided, then assessed by the artists people. Contracts would need to be written and signed by both parties. The artists would be required to keep meticulous records and perform compliance assessments.

This will require the artist have a paid staff simply to authorize what is currently provided under "fair use". It could cost them tens or hundreds of thousands of dollars, all for the coverage they WANT and NEED.

Granted, this scenario is only valid for the most popular of artists, but it can affect many of us. My latest series of exhibits were covered dozens of times in local print and television over the past year. Do you really think I have the time to assess that many written requests, respond with a written contract, then follow up on assessing authorized usage? All for coverage I desperately wanted and, in many cases, instigated?

How is that not a logistical nightmare?
Logged

"The real voyage of discovery consists not in seeing new landscapes, but in having new eyes." Marcel Proust

Chuck Kimmerle
WWW.CHUCKKIMMERLE.COM
RSL
Sr. Member
****
Online Online

Posts: 6208



WWW
« Reply #14 on: June 24, 2011, 09:38:51 AM »
ReplyReply

Too bad the case didn't go to trial. Talk about a slam-dunk! Did Baio seriously think his use was fair use???
Logged

Owin
Guest
« Reply #15 on: June 24, 2011, 09:43:48 AM »
ReplyReply

All for coverage I desperately wanted and, in many cases, instigated?

How is that not a logistical nightmare?

If you instigated it, then by definition you have authorised use - no problem there.

If you are desperate for anyone to use your images, for whatever reason then you don't give a rat's a$$ about your work. So you would be OK for your work to be used, no matter the circumstances?
Logged
michael
Administrator
Sr. Member
*****
Offline Offline

Posts: 4810



« Reply #16 on: June 24, 2011, 10:06:57 AM »
ReplyReply

May I suggest that people read up on Fair Use?

Fair use, a limitation and exception to the exclusive right granted by copyright law to the author of a creative work, is a doctrine in United States copyright law that allows limited use of copyrighted material without acquiring permission from the rights holders. Examples of fair use include commentary, criticism, news reporting, research, teaching, library archiving and scholarship. It provides for the legal, non-licensed citation or incorporation of copyrighted material in another author's work under a four-factor balancing test. The term fair use originated in the United States. A similar principle, fair dealing, exists in some other common law jurisdictions. Civil law jurisdictions have other limitations and exceptions to copyright.
Logged
Kirk Gittings
Sr. Member
****
Offline Offline

Posts: 1547


WWW
« Reply #17 on: June 24, 2011, 11:15:10 AM »
ReplyReply

Too bad the case didn't go to trial. Talk about a slam-dunk! Did Baio seriously think his use was fair use???

Yes. I am with Maisel on this one. I'd go after him too.
Logged

Thanks,
Kirk

Kirk Gittings
Architecture and Landscape Photography
WWW.GITTINGSPHOTO.COM

LIGHT+SPACE+STRUCTURE (blog)
kikashi
Sr. Member
****
Offline Offline

Posts: 3959



« Reply #18 on: June 24, 2011, 11:23:09 AM »
ReplyReply

May I suggest that people read up on Fair Use?

Fair use, a limitation and exception to the exclusive right granted by copyright law to the author of a creative work, is a doctrine in United States copyright law that allows limited use of copyrighted material without acquiring permission from the rights holders. Examples of fair use include commentary, criticism, news reporting, research, teaching, library archiving and scholarship. It provides for the legal, non-licensed citation or incorporation of copyrighted material in another author's work under a four-factor balancing test. The term fair use originated in the United States. A similar principle, fair dealing, exists in some other common law jurisdictions. Civil law jurisdictions have other limitations and exceptions to copyright.
Come now, Michael. You aren't seriously suggesting that people here pontificate on legal matters about which they're actually informed, or inform themselves about legal matters before pontificating, are you? I had you down as such a sensible chap.

Jeremy
Logged
NikoJorj
Sr. Member
****
Offline Offline

Posts: 1063


WWW
« Reply #19 on: June 24, 2011, 03:08:12 PM »
ReplyReply

If I may pontificate, I'd say the case is not that much about fair use, but much more about the difference in treatment between the music (where the guy licenced all the works digitized) and the photography, and brings a small taste of 'never mind the photographer' in the mouth.

Note : Any of this writing is copyrighted and shall not be replicated, re-written or even read without the authors's explicit consentment. And be sure that anyway, my lawyers will beat the juice out of yours.
Logged

Nicolas from Grenoble
A small gallery
Pages: [1] 2 3 »   Top of Page
Print
Jump to:  

Ad
Ad
Ad