Luminous Landscape Forum
The Art of Photography => The Coffee Corner => Topic started by: stsk on June 23, 2011, 02:30:45 pm
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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/
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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?
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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
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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.
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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.
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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.
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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.
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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?
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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.)
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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.
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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 (http://www.digitalphotopro.com/business/its-not-a-winning-ticket.html)" 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,
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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
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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.
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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.
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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?
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Too bad the case didn't go to trial. Talk about a slam-dunk! Did Baio seriously think his use was fair use???
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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?
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May I suggest that people read up (http://en.wikipedia.org/wiki/Fair_use) 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.
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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.
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May I suggest that people read up (http://en.wikipedia.org/wiki/Fair_use) 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
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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.
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Michael, thanks for suggesting that people at least educate themselves a little bit. Most of the opinions have been knee-jerks. The environment is changing rapidly and it bears examination in a bit more depth, I think.
Here are a couple of additional opinions:
http://duncandavidson.com/blog/2011/06/maisel_vs_baio
http://theonlinephotographer.typepad.com/the_online_photographer/2011/06/kind-of-screwed.html
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Most of the opinions have been knee-jerks.
That's not true. There were a couple of uneducated, emotional overreactions, but certainly not by "most".
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But Chuck, how else to be but emotional if it's your stuff, or it could be your stuff that's getting used without permission?
As for educational use, well, they used to produce actual books when I was in school and pupils got to see art and a lot more through that route; probably why no-one in an art class ever needed what's now referred to as (and has become) obligatory sex education. The stuff used in books wasn't pirated, I would suggest, because whatever was used was there, in print, forever, for any legal action based on the copyright rights extant at the time. Good for the authors and better still for the students.
But today's world is impermanent; values fluctuate as wildly as, apparently, do rights. I still believe that the golden rule should always be: nothing published without written permission unless for very strict reference purposes only. That would cover legitimate reviews of works such as books, plays, movies, music and permit such things as visual references to something or another to be made. The underlying feature, it seems to me, is that no commercial gain be made form the actual work being shown, i.e. no form of copying and subsequent monkeying about to disguise but use, or even blatantly incorporate the original work in some way. Plagiarism is another matter.
Rob C
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Michael, I think most of the commenters in this discussion have an understanding of Fair Use. What is at issue for some is that they don't agree with the Fair Use exemptions.
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Bob,
Yes, some, but not all.
More to the point is that disagreeing with Fair Use is tilting at windmills. It is well established in law and legislation in the US as well as most other advanced countries.
I don't really know of any creative person who has lost control of their art or revenue due to Fair Use. I do know many (myself included) who have been harmed by those that think that other people's property is theirs to do with as they wish, especially for commercial gain.
Michael
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Absolutely no argument on either of those, Michael.
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As some one that gets an image stolen about once a month it becomes infuriating. Good for Jay for taking action and hopefully make people think twice before using someones image without permission.
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Michael, It's off-subject I know, but here's applause for "Umbrella and Yellow Wall." At least I assume it's yours. I'm sure Alvarez-Bravo would join me in applauding.
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Michael, It's off-subject I know, but here's applause for "Umbrella and Yellow Wall." At least I assume it's yours. I'm sure Alvarez-Bravo would join me in applauding.
Russ, you could send a duplicate of your post across the road to About This Site where my remark (and lonely post under Brolly) to the same effect not only shows we share a lot of opinion, but also that though we obviously disagree about the similarity/difference between pj and street, we still know what we like when we see it!
;-)
Rob C
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Russ, you could send a duplicate of your post across the road to About This Site...
Rob, Good idea. Done..
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That's not true. There were a couple of uneducated, emotional overreactions, but certainly not by "most".
Retracted - it was an exaggeration. However, while you're correct about the uneducated, emotional overreactions, what I was hoping for was a more thoughtful look at how the changing landscape affects us as photographers. Because us stamping our feet doesn't really do much. This is an interesting look at an analogous situation:
http://www.princeton.edu/~artspol/studentpap/undergrad%20thesis1%20JLind.pdf
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Retracted - it was an exaggeration. However, while you're correct about the uneducated, emotional overreactions, what I was hoping for was a more thoughtful look at how the changing landscape affects us as photographers. Because us stamping our feet doesn't really do much. This is an interesting look at an analogous situation:
http://www.princeton.edu/~artspol/studentpap/undergrad%20thesis1%20JLind.pdf
Tell that to somebody with poor circulation, such as myself. In winter, it's the only way I can continue the obligatory hour's walk by investing part of my time in frequent stops for exactly that process of stamping and driving the blood back into the feet and the pain back out. Maybe stamper could be similarly afflicted? I often wondered about the reason behind that nom de plume; on the other hand, it may simply be a fond reference to a childhood habit...
With reference to the link: I started to read the intro but gave up when the overarching sense of left-wing that I felt lay therein blew me away.
Rob C
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Retracted - it was an exaggeration. However, while you're correct about the uneducated, emotional overreactions, what I was hoping for was a more thoughtful look at how the changing landscape affects us as photographers. Because us stamping our feet doesn't really do much. This is an interesting look at an analogous situation:
http://www.princeton.edu/~artspol/studentpap/undergrad%20thesis1%20JLind.pdf
We've had several discussions about the state of copyright, its length, fair use and Creative Commons (http://creativecommons.org/), and I've started many of them. I would say more than half of the posts in the "discussions" are more about drowning the debate in noise or putting one's head in the sand, rather than genuine attempts to consolidate the divergent needs of content providers and consumers, promoting creation of new and/or derivative works rather than stifling creativity, ease of copying in the digital age, and perceived small value of much of photography.
Unfortunately raising copyright reform on a pro photography forum is akin to raising gun control on a hunting forum, and has thus far had the same results.
Music sampling (in your link) is a good alternative view, as is this TED talk about lessons from (lack of) copyright in the fashion industry which promotes creativity (http://www.ted.com/talks/johanna_blakley_lessons_from_fashion_s_free_culture.html) - Cliff's Notes starts at around 10:30, and there is a damning graph at 12:20.
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Unfortunately raising copyright reform on a pro photography forum is akin to raising gun control on a hunting forum, and has thus far had the same results.
One thing that's interesting per the above comment is just how incredibly disparate the views of photographers and the tech world are on this issue. One could say "Quelle surprise!", but we need to understand that our perspective isn't necessarily shared. The response, quoted in the initial post, ("What a dick!) is pretty much universal outside the photography tent.
For those who believe there's no such thing as fair use, let's take a hypothetical case, putting the shoe on the other foot: Let's suppose your photo of granny has just been printed on the cover of Parade Magazine. Happy day! But you are soon served with a summons for copyright violation by Ansel Adams estate... It seems granny's photo-realistic painting of Moon and Half Dome on black velvet is seen by the Adams estate, to infringe on the Adams version (granny copied it, frankly). The estate is going after both granny and you. (the Half Dome painting was a substantial percentage of the frame - Granny's REALLY proud of the painting...) If there's no such thing as fair use, you're hosed, but, to be frank, you're hosed anyway because the cost of defense against the claim will probably force you to settle out of court for over thirty grand anyway... (Granny holds out and wins in court, but pays over a hundred grand in legal fees...)
This is the way the tech world looks at the Maisel example... granny's working in a different medium but copying the iconic Adams photo. Are they wrong? Certainly not from their perspective.
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This is the way the tech world looks at the Maisel example... granny's working in a different medium but copying the iconic Adams photo. Are they wrong? Certainly not from their perspective.
It's not only "tech world," but a much wider group. We have an entire generation of kids who are so used to file sharing that the entire concept of copyright is antiquated to them. If you don't provide a service which makes giving money for your content extremely streamlined, you can refer to years of Napster and rampant music "sharing" to understand what it leads to.
All photographers should to take this into account when dealing with the public. No, I don't have the answers, but putting one's head in the sand or transferring yet another portion of disposable income to lawyers doesn't benefit anyone. Except lawyers.
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One thing that's interesting per the above comment is just how incredibly disparate the views of photographers and the tech world are on this issue. One could say "Quelle surprise!", but we need to understand that our perspective isn't necessarily shared. The response, quoted in the initial post, ("What a dick!) is pretty much universal outside the photography tent.
For those who believe there's no such thing as fair use, let's take a hypothetical case, putting the shoe on the other foot: Let's suppose your photo of granny has just been printed on the cover of Parade Magazine. Happy day! But you are soon served with a summons for copyright violation by Ansel Adams estate... It seems granny's photo-realistic painting of Moon and Half Dome on black velvet is seen by the Adams estate, to infringe on the Adams version (granny copied it, frankly). The estate is going after both granny and you. (the Half Dome painting was a substantial percentage of the frame - Granny's REALLY proud of the painting...) If there's no such thing as fair use, you're hosed, but, to be frank, you're hosed anyway because the cost of defense against the claim will probably force you to settle out of court for over thirty grand anyway... (Granny holds out and wins in court, but pays over a hundred grand in legal fees...)
This is the way the tech world looks at the Maisel example... granny's working in a different medium but copying the iconic Adams photo. Are they wrong? Certainly not from their perspective.
This makes absolutely no sense.
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This makes absolutely no sense.
Michael, it's about photography: what the hell did you expect? Another velvet rendition of a saintly cliché?
Rob C
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I hope Jay doesn't sue me because I took a photo of his front door in NYC. LOL
(http://farm6.static.flickr.com/5248/5327545038_85478a8b21_o.jpg)
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I hope Jay doesn't sue me because I took a photo of his front door in NYC. LOL
(http://farm6.static.flickr.com/5248/5327545038_85478a8b21_o.jpg)
Madre de Dios! The Gateway to Hell. Do places like that still exist in the United States of America?
;-)
Rob C
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Don't judge a book by it's cover. Inside the place is unbelievable and the story about the property even better.
http://nymag.com/realestate/vu/2008/09/50481/
This is only half of the first floor in his building. One hell of a studio / workshop / gallery space !
(http://farm4.static.flickr.com/3348/3602357057_d73b086bf5_b.jpg)
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You can tour Jay's building and see some of the rooms in this interview and tour (http://store.luminous-landscape.com/zencart/index.php?main_page=product_info&cPath=20&products_id=173).
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You can tour Jay's building and see some of the rooms in this interview and tour (http://store.luminous-landscape.com/zencart/index.php?main_page=product_info&cPath=20&products_id=173).
Michael is the download format compatible with the iPad2? If not can it be manipulated with iTunes?
Dave
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These are Quicktime files. No problem.
Michael;
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You can tour Jay's building and see some of the rooms in this interview and tour (http://store.luminous-landscape.com/zencart/index.php?main_page=product_info&cPath=20&products_id=173).
That was one of the best LLVJ ever.
Dare I ask when we'll get a new one? :-)
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Hey soos! Inside it's even worse!
Rob C
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Hey soos! Inside it's even worse!
Rob C
???
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???
You said it yourself:
"This is only half of the first floor in his building. One hell of a studio / workshop / gallery space !"
And in typical American understatement, you avoided adding that the walls are drenched in blood, as the photo clearly shows!
But don't worry about it; here on the island the Brits are often greeted with blank stares - we get used to it.
Rob C
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What a dick this Maisel guy is.
Do you realize you are calling an 80 year old man who is responsible for photographing the modern history of NYC a dick?
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Do you realize you are calling an 80 year old man who is responsible for photographing the modern history of NYC a dick?
That's no big deal; Gauguin told van Gogh that he (vG) painted with his dick.
What's the history of one miserable dump compared to the united glory of recent European art, whether a stick-painting or not?
Rob C
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Rob stay out of my Scotch !!!
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Rob stay out of my Scotch !!!
Michael, I haven't touched a drop of anybody's Scotch in years!
;-)
Rob C
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Scotch?
What a wonderful idea.. *goes foraging for the single malt* ;D
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Scotch?
What a wonderful idea.. *goes foraging for the single malt* ;D
Josh,
If you have to forage for it, you've obviously been deprived for quite a while.
Unless of course you keep a 16 year old bottle hidden away that only sees the light of day with special friends :)
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Personally, I always preferred a G&T or a beegee, the latter on the advice of the chap working the bar at the Bacardi factory on New Providence. From the same source, a cuba libre is a popular, low-brow insult to the brew.
By the way, if you can't find Bacardi Gold locally, you can make your own at home by adding a measured amount of brown sugar: works a treat and has fooled many a self-imagined connoisseur. Just in the same manner as brandy. Oh the trade; beermats dipped in gin to make the fouth round think it's got gin in it. No wonder people are tending to stay at home more.
;-)
Rob C
PS In retrospect (been years since I touched any of this stuff - sadly), it might have been dark treacle I used instead of the brown sugar.
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(http://farm6.static.flickr.com/5276/5883358542_c33ec76e0f_o.jpg)
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The irony is, lots of Scots are pissed off at the English for buying out some brands, and then Suntory, too, gets a bit of strick but hell, who do you imagine sold the raw stuff to them in the first place?
What a tangled web is big business! Never!?
Rob C
PS Gotta say, there's a musical magic about Jim Beam, Jack Daniel's, and old Gypsy Rose that's lacking in Johnnie Walker or Haig. Much the same with Route 66; probably vanished by now, but always ahead of M74 or M25...
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"Much the same with Route 66;"
oh, it's still around. At least sections of it are original. Complete with theme motels.
http://www.route66motels.com/
and plenty of places for fine dining
http://rwarn17588.wordpress.com/restaurants-on-route-66-3/
aging gracefully. kept up by the spirit of the road once traveled.
Frank
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Right, Degrub. And don't forget the "Here It Is" sign at world-famous Jack Rabbit trading post. It's on a section of Route 66 that parallels and is very close to I 10. Several people have become millionaires selling absolute junk souveniers out of that place. I don't know when Jack Rabbit was "founded," but it's been there at least since I was a kid, traveling Route 66 in the back seat of my folks car.