If Jay Maisel's Photograph Is Original Artwork, Then So Is The Pixelated Cover Of 'Kind Of Bloop'

from the artistic-copying dept

Mon, Jun 27th 2011 11:08am — Mike Masnick

Okay. I'm going to say right from the top that I expect some (not all) photographers are going to read this and get very angry. I'm going to try to explain myself as carefully as possible to make my point clear, because it's not what many people are going to jump to a conclusion about. That is, I am not saying that photography is not art. I believe that photography absolutely is art -- and it's an artform I love. At one time in my life, I spent more time in a dark room than was healthy (perhaps literally, given some of those chemicals), and even pondered pursuing photography as a career. What I am going to say, however, is that it seems like there's a bit of a double standard when it comes to photographers, copyright and fair use on transformative and/or derivative works.

In the time I spend talking about copyright issues, it's always seemed that it was a certain group of photographers who get much more worked up about these things than anyone else. I very much understand why this is. In many cases, photographers are self-employed, and they've come to believe that copyright is their sole way of making a living (I believe they're wrong on this, but they believe it strongly). So anything that takes away from copyright protections -- including such legally enshrined issues as fair use -- are seen as being serious threats. Again, I think this is somewhat short-sighted and wrong, but I understand where the feelings come from.

We recently wrote about Andy Baio's legal fight with Jay Maisel over Baio's use of a pixelated version of Maisel's photograph of Miles Davis that became the iconic album cover for Kind of Blue.

When I wrote that, I fully expected that many photographers would come to Maisel's defense, even as much of the internet commentary sided (heavily) with Baio (including some from photographers). There were, of course, also some very thoughtful discussions from some photographers, who disagreed with Baio's fair use analysis and presented reasonable explanations for why they did not believe his use would be covered as fair use. I disagree with their analysis, and think that the fair use case here is quite strong, but fair use is a funny thing and it very often comes down to the whims of the judge on the case.

However, there is one argument I've seen in numerous places by photographers that strikes me as either incredibly self-unaware, or just downright hypocritical. There were a few such comments on our post about it, such as this one that insisted that since you could still recognize the photo, Andy "didn't turn it into something different." Similarly, a photographer by the name of William Beem (and I really don't mean to single out Mr. Beem, but to use his comments as a sample of the general argument) commented a few times on a post by Mathew Ingram about this whole affair, again arguing vehemently that there's no fair use here and that Andy "stole" the image. For example, Beem states the following:

Andy took something that wasn�t his and he didn�t have any license or right to take it. Digital or physical, that�s theft. Your argument that Jay Maisel still has the original is true, so Andy stole a copy. It�s still not his. The image is recognizable as the original. All rights to that image belong with the copyright holder, whether original or duplicated.

Saying that all art is derivative in some way is very nebulous.

It's this form of argument that I find incredibly hypocritical. The whole "took something that wasn't his." What did Baio (or, really, the guy he hired) do? He copied an image that he saw, but did so in a different and artistic way. What did Maisel do to make his photograph: he copied the scene of Miles Davis in front of him, but did so in a different and artistic way. It's the same thing any photographer does. Part of the very process of photographing is, literally, making a copy, often without a "license" from whatever it is you're making a copy of. Again, that doesn't make it any less art. In fact, the reason that photographs are considered eligible for copyright protection at all (and some have questioned this) is because of the artistic choices in making a photograph: how it was framed, lighting, etc. Yet, in the pixelated image, again, there are similar artistic choices made: how to pixelate the image. How to still make it look good, but within the limitations of the pixelated artform, etc.

Some have, incorrectly, assumed that you could just apply a filter to the original image and get out the pixelated version that Baio used. This is false. You can see, pretty obviously, just from looking at the tie, that the guy who made the pixelated image didn't just Photoshop it, but found a way to recreate the general feel of the original image, but within the artform of pixelated images. You could just as easily argue that Maisel found a way to recreate the general feel of Miles Davis performing, but within the artform of photography. If you don't understand this, you can see if you look at an actual attempt to run a Photoshop filter on Maisel's original, the result is quite different. Furthermore, as David Liu pointed out, a scaled down version of an image is quite different than a hand-pixelated image, and in the case of Kind of Bloop, the image was hand-pixelated, using all sorts of artistic choices by the artist.

What I have trouble with is the argument that this is different than photography. In both cases, you have artists who took something that was out there -- something they did not create -- and then turned it into an artform. In Maisel's case, it was taking the real, physical 3D Miles Davis performing, and turning it into a photograph. In Baio's case, it was taking the Maisel photo, and turning it into an 8-bit image in homage to the original.

Photography, by its very nature, starts with simply copying what's on the other side of the lens. Yes, there is more to it on top of that. There are all sorts of artistic choices to be made about how to copy. How to frame, how to focus, how to light, how to shade, how to dodge, how to print, etc. That's what makes it an artform. But it's incredibly hypocritical to then decry others similarly making a copy, with similar artistic choices, by somehow claiming that that version of copying is "theft." So, photographers, please don't be so quick to decry other artforms that also start with copying, but which also then apply additional artistic choices. If Jay Maisel's photograph of Miles Davis is unique and original artwork (and I believe it is), then so is the cover of Andy Baio's album.

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Filed Under: 8-bit, andy baio, art, copying, copyright, culture, jay maisel, photography, pixelation

193 Comments

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Hulser (profile), 27 Jun 2011 @ 10:42am

Primacy
What did Baio (or, really, the guy he hired) do? He copied an image that he saw, but did so in a different and artistic way. What did Maisal do to make his photograph: he copied the scene of Miles Davis in front of him, but did so in a different and artistic way.

I actually agree with your overall point, but I think that the people who don't are going to focus on this key distinction: that what Maisel copied was not copyrighted and what Baio copied was already copyrighted.
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Hulser (profile), 27 Jun 2011 @ 10:50am

typos
Not sure if there's time to correct these before this goes to the main page, but I spotted some typos. Please delete this if so.

At one time in my life, I spent more time a dark room than was healthy

S/b "more time in a dark room"?

We recently wrote about Andy Baio's legal fight with Jay Maisel over Baio's use of a pixelated version of Maisel's photograph of Miles Davis that because the iconic album cover for Kind of Blue.

"That because"? Missing or wrong word?

What did Maisal do to make his photograph

"Maisal" s/b "Maisel".

Photography, by it's very nature

"it's" s/b "its".
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Vincent Clement (profile), 27 Jun 2011 @ 11:13am

Mike,

This is one of your best posts. Ever.
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Mike Masnick (profile), 27 Jun 2011 @ 11:13am

Re: typos
Oops. Fixed. Good catches. Sorry so many got through...
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jakerome (profile), 27 Jun 2011 @ 11:26am

To the copyright maximalists...
Wrote this on Thomas Hawk's blog in response to the photogs supporting the $100,000+ lawsuit for creating a derivative work of art.

------

The fucktarded part of this whole mess is that the staturory damages are wholly out of line with reality. By all means, Maisel should be able to sue for damages, even treble damages with lawyer fees awarded. With total sales in the thousands and less than 10% of that attributable to the photo, a payment in mid hundreds would seem quite reasonable.

But no, we�ve allowed Mickey Mouse corporations to extend copyright assignments to last decades and sometimes centuries instead of 14 years. We�ve allowed them to set statutory damages at such an obscenely high level that whole business models are now built around suing for infringing registered works where the underlying works never had commercial value even approaching 1/10 that assigned by the inane copyright regime. We�ve allowed and encouraged industry cartels to band together to sue citizens for tens of thousands of dollars for listening to a $1 song without jumping through the right hoops.

We�ve allowed the corporatists to squeeze the life out of artists such that commercial productions will refuse to quote 20 words of song lyrics in a 20,000 word book without obtaining proper clearances. We�ve allowed whole genres of art to be destroyed, as rap artists and music mashers can no longer create without begging for permission first to modify music in the same way as has been done for millenniums. We�ve gone lifetimes without a single work of art entering the public domain, instead allowing 4th generation descendents to distort their great grandparents work by schilling great works to the Disney or the other high bidder such that these layabouts can profit off the work that belongs to all of society.

And the photogs supporting these laws are the most fucktarded of all, because if they don�t realize that we�re the next target for �permission based� copyright maximalists, then you haven�t been paying attention.
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Anonymous Coward, 27 Jun 2011 @ 11:37am

Re: Primacy
Yes it was. The artist owns the copyrightto all parts of a performance.
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out_of_the_blue, 27 Jun 2011 @ 11:38am

Photography is not art*. Jazz is not music.
Those seem inextricable from your views yet aren't germane to the topic, so I'll just make my contradictory views as bald statements.

"He copied an image that he saw..."

Exactly, with ya so far...

"...but did so in a different and artistic way."

NO, there you jam in irrelevant assertion. Artistic effort doesn't matter. It's inarguable that Baio wouldn't have /anything/ to work with except for the prior efforts of Maisel, and assuming that I had to decide and couldn't just wish a plague on both besides on all of jazz, then that'd weigh heavily.

Just avoid DERIVATIVE work, and you avoid all these "copyright-ish" problems. Obviously we're not all original: my view has always been to just recognize that FACT and go on to my own little niches.

(*I've a definition of art that's inarguable, for another time. And wonder how one would or could parody /jazz/, but will just muse on that.)
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Chris Rhodes (profile), 27 Jun 2011 @ 11:40am

Great Post!
Glad to see you revisit this point in an actual post, as it didn't deserve to remain buried in a comment section.
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Anonymous Coward, 27 Jun 2011 @ 11:41am

Re: Photography is not art*. Jazz is not music.
all artwork is derivative
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RD, 27 Jun 2011 @ 11:42am

The Rise of the Unprincipled
"What did Baio (or, really, the guy he hired) do? He copied an image that he saw, but did so in a different and artistic way. What did Maisel do to make his photograph: he copied the scene of Miles Davis in front of him, but did so in a different and artistic way."

Now Mike, you cant go making sensible observations like that these days. The problem is, almost no one understands the underlying principles of just about anything anymore. They only see 2 inches in front of their own face and thats IT. The idea that, in principle, these two ways of artistic creation are essentially the same matters not a whit to these people. The rise of the unprincipled, myopic "creator" is where we find ourselves today, and you simply can NOT explain any of this to them. They see it only in black and white (so to speak): my creative expression trumps yours, because its MINE and copyright says so. With willful blindness comes rampant hypocrisy, as we have seen over and over again (can you say Disney, who raided the public domain for most of their early creations, but then turned right around and fought tooth and nail to never, EVER allow theirs to similarly be returned to the very same public domain?)

And that is all before we even get into any of the ideas of copyright law or fair use. That is a diode-like argument for these people: Copyright ONLY works one way (toward the rights holder) and NO where else. Fair use shouldnt be allowed, and the Copyright Bargain with the public (you know, the one that grants them all these rights in the first place?) is completely abrogated, slain on the altar of perpetual ownership and naked self-interest.
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Anonymous Coward, 27 Jun 2011 @ 11:43am

You got more than slightly lost in your own logic, because you seem so intent on forgetting that the "pixel" cover is derivative.

The wweat of the brow arguments that you make are entirely misleading as well, you discount that at every turn on other subjects. So clearly, just making an effort (whatever effort) isn't enough.

The work isn't original, but because the underlying work is licensed and all, guess what? The new work is also copyright in it's own way. However, depending on the license he has for the underlying work, he may not be able to distribute it or sell it in any other manner except as an album cover, and he cannot re-license it on without permission.

See, it isn't hard to understand, unless you are trying very, very hard to ignore the law.
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ShellMG, 27 Jun 2011 @ 11:43am

Mike, my daughter is leaving for college in August to pursue a career in digital photography. I've been pushing her a bit to study copyright, trademark and how to market her work in a way that uses a contemporary -- and sustainable -- business model. Your blog is probably the one I steer her towards most often, and I hope she's reading this now. Regardless as to whether or not she agrees with you, your blog brings up issues that are extremely important to consider. Keep up the great work!
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John Doe, 27 Jun 2011 @ 11:43am

Great post...
As an hobbyist photographer myself, I have struggled with how copying an image for a derivative work would not violate copyright. You have finally laid out your arguments for how that can be. And I have to concede that on some of the points, you make a solid case. Without knowing the particulars of how this photo was done, that is was it captured a live performance or was it staged, I will make the assumption that it was staged. If so, then the photographer made all the choices about lighting, shadows, posing, wardrobe, etc. So the argument that Baio infringed might be stronger.

Now take the case of the iconic Obama photo where the photographer captured the President during a speech, then it could be argued he captured the scene in front of him so the guy who turned it into a tri-color poster in effect did the same thing. Only in that case, the photographer in effect time-shifted the scene for the poster artist.

But then the two cases above point out what a mess copyright is if you have to closely examine every aspect of how a photograph was done to determine fair use.
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Rob Sheridan (profile), 27 Jun 2011 @ 11:46am

I'm a photographer, and I whole-heartedly agree with you here Mike. I commented about this back on the post about Mr. Brainwash and the Run DMC photo. It's interesting to me that most of these cases (see also the Obama/Fairey issue) seem to involve portraits of famous people where the creative contribution by the photographer has been pretty minimal. The interest and value of the photograph relies extremely heavily on its subject matter and the subject matter's cultural achievements - something the photographer had nothing to do with it. I find it incredibly egotistical that portrait photographers think they deserve such heavy control over what sometimes just amounts to a choice of how to frame a scene. That's not to say that Maisel's photograph isn't excellent - it is - but if it were the exact same photograph of a completely unknown jazz musician, would anyone care about it? Would it have any value? Would anyone want to recreate it in the first place? Of course not. Just as the pixel art recreation owes everything to the original photograph, the original photograph owes everything to Miles Davis. This is why I think celebrity portraiture (and most photography) is a transformative art in its own way, making it very hypocritical to cry lawsuit when someone transforms your transformation. And I am saying this as someone who's done a TON of this type of photography, as well as other types of photography that owe everything to the subject matter (scenery, monuments, events, etc). There is a lot of talent and skill and art involved in capturing a person or a scene - but at the end of the day you're transforming something that already exists, and you'd be wise to keep that in mind when someone transforms your transformation.
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John Doe, 27 Jun 2011 @ 11:50am

Re:
Mike can speak for himself here, but I don't think he is making sweat of the brow arguments so much as pointing out that the pixelated image required a lot of work which therefore proves it is transformative. If it was a simple photoshop plug-in that did this, then maybe you could argue it wasn't all that transformative.
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lavi d (profile), 27 Jun 2011 @ 11:51am

Re: Photography is not art*. Jazz is not music.
It's inarguable that Maisel wouldn't have /anything/ to work with except for the prior efforts of Davis.

See how that works?
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Marcus Carab (profile), 27 Jun 2011 @ 11:53am

Re:
Okay, I want to ask you an honest and straightforward question here. How do you compare this situation to one like this:

http://www.techdirt.com/articles/20100226/0103428319.shtml
(please have a look, because I think you will find it interesting)

In that case, there was a major battle over an obviously transformative photograph of a statue for a postage stamp. Even though the photo was clearly an entirely new piece of art, the higher court ruled that it was a violation of the statue's copyright.

Personally, I think the lower court was right in deeming it fair use - the photographer created a purely transformative work. But one could claim it was derivative and thus in violation of the sculptor's copyright. What do you think?
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Mr. LemurBoy (profile), 27 Jun 2011 @ 11:53am

Re: Photography is not art*. Jazz is not music.
Sooo.. under the original writing of copyright in America, it was to promote progress. Creating new works of art based on previous works is an age-old method of progress. Yet, artistic effort and derivative works doesn't matter?

Considering that in my art classes I was specifically instructed to appropriate works of art, and to mash-up others, methinks that they matter quite a bit.
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Rob Sheridan (profile), 27 Jun 2011 @ 11:53am

Re: Re:
Yes, another problem with this case has been the knee-jerk reactions of people who don't understand how difficult good pixel art actually is. I've done a bit of it and it is a laborious, hand-crafted art. This image was not simply pixelated in Photoshop, as some people have tried to say, but made by hand very carefully. If this were a painting of the photograph I have a feeling there wouldn't be so many people defending Maisel - but a lot of it stems from a naivety about pixel art as a medium.
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Nina Paley (profile), 27 Jun 2011 @ 11:54am

"Artistic" is irrelevant
Who is to judge what is artistic and what isn't? Whether modification is done "painstakingly" or with an automatic filter is irrelevant, and "sweat of the brow" does not make something "art."

Both cameras and Photoshop filters are filters. No one should "own" anything just because they placed a filter on it, whether they did so "artistically" or not.
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John Doe, 27 Jun 2011 @ 11:56am

The biggest argument to make is the affect on the market for the original
I think the biggest part of the fair use test is whether the derivative work affects the market for the original. I have no proof, but I would guess that in most cases, the derivative only improves the market for the original.

Also, if the original artist was never going to do an image like the derivative, then why should they care? They didn't think about it, they weren't going to do it, and even if the thought had crossed their mind, do they even know how to do it?

I think a lot of these cases are because the original artist slaps himself in the head and says "Why didn't I think of that?".
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Anonymous Coward, 27 Jun 2011 @ 12:02pm

Re: Re: Photography is not art*. Jazz is not music.
Yeah, I wonder how much the estate of Miles Davis got from this lawsuit? Nothing? That doesn't seem fair at all.
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Anonymous Coward, 27 Jun 2011 @ 12:02pm

people should stop trying to make money from art. its art, you are supposed to do it for the love of the art, not greed. great, some guy made a fortune off his art, this does not mean its a right to make money off art.

you shouldn't be able to own rights to art, you can own a physical medium of art, but just because you made it doesn't mean you should get auto rights to any copy made thereof, thats like saying you should own a person's memory of seeing it. how come thats not in question? because its a retarded statement.

i hope to god we never figure out how to erase specific memories, disney would erase all images of mickey from your head and make you pay a subscription to remember it.
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Anonymous Coward, 27 Jun 2011 @ 12:03pm

Re: Re: Photography is not art*. Jazz is not music.
Artists are their own worst enemies when it comes to copyright.
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Mike Masnick (profile), 27 Jun 2011 @ 12:04pm

Re: Re:
Mike can speak for himself here, but I don't think he is making sweat of the brow arguments so much as pointing out that the pixelated image required a lot of work which therefore proves it is transformative. If it was a simple photoshop plug-in that did this, then maybe you could argue it wasn't all that transformative

Not arguing sweat of the brow at all, and it takes an astounding misreading of what I wrote to suggest that at all. I'm pointing out, as many have, that copyright derives not from the effort involved, but from the *artistic choices*. And there are just as many artistic choices in the photograph as in the pixelated version.

That's got nothing, whatsoever, to do with sweat of the brow. The AC above has no argument so he's making stuff up.
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Anonymous Coward, 27 Jun 2011 @ 12:05pm

Re:
And had they just used a look-a-like and photographed that and then turned their photo into pixel art then there wouldn't have even been a lawsuit.
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kyle clements (profile), 27 Jun 2011 @ 12:06pm

part-time photographer here.

I kind of like it how most photographers aggressively cling to their copyrights, it gives me a competitive advantage: I sell the rights back to the client. Once the job is over, I don't need or want those images, I can offer a "deluxe package" where the copyrights are handed over to them with the prints. They are happy because, "hey, re-prints are free...in the long run, going with this guy is way cheaper than the rest..." and I'm happy because its 'for-sure' money, not 'maybe later' money. It's like selling deeds to plots of land on the moon, I'm getting their cash for giving them essentially nothing.

My opinion on this is not a very sound argument, but it's how I feel in my gut:
If the artist opend up the original photo and ran a 'pixelate' filter, it's infringement; if it's drawn by hand, pixel by pixel, (even if it's traced over the original photo) it should be considered an original artwork. I know that's an arbitrary distinction and the end results of both processes may be identical, but that's just how I feel about appropriation in art.
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Jay (profile), 27 Jun 2011 @ 12:06pm

Re: Re: Primacy
And what does the copyright entitle?

It's akin to saying that Mike Tyson's face is owned by S. Victor Whitmill. Does that mean he owns all derivative works based on his own? That's a rather difficult position to take.

It makes no sense that Baio's artistic expression is silenced, simply because he used a photograph of Miles Davis. Looking even further, the photographs weren't directed at the same market and there's enough degrees of separation that there is no confusion over the two.
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ChurchHatesTucker (profile), 27 Jun 2011 @ 12:07pm

Re: "Artistic" is irrelevant
Exactly. How long did it take for Duchamp to sign a urinal? Or for Dali to put a mustache on the Mona Lisa? Yet these works are in every art textbook worth a damn.
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out_of_the_blue, 27 Jun 2011 @ 12:10pm

Re: Re: Photography is not art*. Jazz is not music.
You and "lavi d" make relevant points -- and aren't A/Cs, and I DID a bit more thinking on it. Here's the result:

ART IS EASY. One can MAKE UP any damn thing that you wish, even what's physically impossible (I'm looking at YOU, MC Escher!) and put it in some communicative form (even if no one else can tell WHAT it's supposed to be). -- Therefore it should ALL be pretty nearly original!

PHYSICAL SCIENCES ARE DIFFICULT! Because absolutely tied to REALITY. -- Therefore it's INEVITABLE and UNAVOIDABLE that invention and discovery build on prior work.

Thanks to both for helping me to the above. I'll mention you favorably to the Author Of Creation.
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Marcus Carab (profile), 27 Jun 2011 @ 12:10pm

Re: Re:
You KEEP saying this, but I hate to break it to you: it's not true. A lookalike wouldn't have made a difference at all. If, for example, you staged a perfect replica of someone's photo using lookalikes and makeup and manipulation or whatever else, you would be in violation of their copyright. Just as if you painted a perfect duplicate of another artist's painting, you would be in violation of theirs.
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MrWilson, 27 Jun 2011 @ 12:12pm

Re: Re: Primacy
Only if the performance is set in a fixed medium, such as a video or audio recording, and then, they would only own the copyright if they made the video or recording or had an agreement with the person who made the recording and they would only own the copyright on the recording itself.

If you take a picture of a musician at a concert, you, the photographer, own the copyright to the photograph, unless you've otherwise signed away your right to the copyright with some agreement with the artist or venue.
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John Doe, 27 Jun 2011 @ 12:14pm

Re:
i hope to god we never figure out how to erase specific memories, disney would erase all images of mickey from your head

Me first!
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Gwiz (profile), 27 Jun 2011 @ 12:16pm

Re: Re: Re:
If this were a painting of the photograph I have a feeling there wouldn't be so many people defending Maisel - but a lot of it stems from a naivety about pixel art as a medium.

I agree. Or how about if it was a mosaic made from recycled glass or broken vinyl records or something? Would THAT be derivative enough?
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John Doe, 27 Jun 2011 @ 12:16pm

Re:
What if the artist is also the one who created the photoshop filter? A lot of work and artistic choices goes into creating stuff like that too.
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Huph, 27 Jun 2011 @ 12:18pm

Re: Re: "Artistic" is irrelevant
Weren't those both Duchamp works?

I see some pictures of Mona Lisa with Dali's mustache, but did he actually paint that?
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MrWilson, 27 Jun 2011 @ 12:22pm

Re: Re: Re: Photography is not art*. Jazz is not music.
If you think art is easy, you're probably not an artist. Even talented people have to be effort into their art. For those for whom art is effortless, it isn't really art. Art by definition is an intentional act of creation born of artistic decisions.

Escher didn't just say, "art is easy, I think I'll be an artist!" He had to work at it. He practiced and he went through multiple iterations of concepts before being able to create is more famous works. Try copying Escher and duplicating his quality of work with the same methods he used and come back and tell me how easy it is.
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A non-mouse, 27 Jun 2011 @ 12:22pm

Re: Primacy
"...what Maisel copied was not copyrighted and what Baio copied was already copyrighted."

Playing Devil's Advocate, I could argue that what Maisel copied was nothing more than "reality". He captured an image of exactly what Davis looked like at that particular point in time. Any other person, standing at that same location at that same time, would have seen the same thing. Maisel certainly didn't create Davis, or his clothing, or the instrument he was playing. And since this was captured during a live performance, he didn't even create the stage, the backdrop, or the all-important lighting. So, since nothing captured in that image was actually created by Maisel, the photo is nothing more than a captured moment of reality (i.e. a fact). And we all know you can't copyright facts.
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jackn, 27 Jun 2011 @ 12:25pm

Re: Re:
I agree, fair use.
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chicken, 27 Jun 2011 @ 12:28pm

Maisel Infringed First
I assume Maisel infinged on the art of Miles Davis' mother and father creation.
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Marcus Carab (profile), 27 Jun 2011 @ 12:31pm

Re: Re: Re:
But I know from the other thread that you do not believe this pixel art is fair use. So can you explain why you feel they are different?
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Chris Rhodes (profile), 27 Jun 2011 @ 12:31pm

Re: Re:
Very interesting point. I like it.
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A non-mouse, 27 Jun 2011 @ 12:35pm

Re: Re: Re: Re: Photography is not art*. Jazz is not music.
"If you think art is easy..."

Art *is* easy, whether or not anyone else thinks it's worth much is another story.

"...you're probably not an artist."

I am if I say I am. Again, everyone else is welcome to their own opinion on that.
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Anonymous Coward, 27 Jun 2011 @ 12:38pm

Re: Re: Re: Re: Photography is not art*. Jazz is not music.
For those for whom art is effortless, it isn't really art. Art by definition is an intentional act of creation born of artistic decisions.

I find that to be very snobbish. There have been many cases of musicians and other artists creating stuff in their sleep (e.g. Paul McCartney). So, by your reasoning, either dreaming is hard work or their stuff isn't art. Which is it?
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Anonymous Coward, 27 Jun 2011 @ 12:42pm

A Rose is a Rose
If a photograph is a work of art, is not a photograph of a photograph also a work of art?
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kyle clements (profile), 27 Jun 2011 @ 12:42pm

Re: Re:
What if the artist is also the one who created the photoshop filter? A lot of work and artistic choices goes into creating stuff like that too.

Then you have found one of the flaws in my argument. (and it only took you 10 minutes, too...)

As an artist (I was an artist before I was a photographer.) this is the kind of stuff that interests me the most. Digital media and copyright are some of the biggest issues going, an no artists are talking about it beyond saying "give me my money; I own everything!"

My last big project was a series of 'invisible paintings', where IR LEDs were hidden behind canvas. Our eyes can't see IR, but digital cameras can, so the only way to see the art is to photograph it, which museums and galleries don't allow visitors to do.
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Not An Artist, 27 Jun 2011 @ 12:44pm

Re: Re: Re: Photography is not art*. Jazz is not music.
WHY are we YELLING every FEW WORDS?

I LOVE LAMP!
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John Doe, 27 Jun 2011 @ 12:47pm

Re: Re: Re:
Then you have found one of the flaws in my argument. (and it only took you 10 minutes, too...)

Sorry about that. :) As a hobbyist photographer who has only made a pittance from my "art", I struggle with the photographers viewpoint of copyright. But the more I see how copyright is used, the more I wonder if it shouldn't be abolished altogether. At some point I have to ask if it does more harm than good and right now, it seems to be weighted heavily on the harm side.

As to your last project, that sounds very cool. I also hate that museums disallow photography. They think if you see a picture of the art, you won't pay to see it in person. But how many people have traveled across the world just to see the Mona Lisa in person? Lots I suspect. What museums sell is the experience of seeing the art in person and that can't be fully conveyed by a photo.
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Hulser (profile), 27 Jun 2011 @ 12:51pm

Re: Re: Primacy
Playing Devil's Advocate, I could argue that what Maisel copied was nothing more than "reality".

This argument is more appropriate to "photography isn't art" rather than the argument being made by Mike. Yes, a photographer captures something that exists in reality and could have been seen by someone else. But that doesn't mean that there isn't artistic expression in the selection of lighting, framing, subject matter, etc. I think there is. The question at hand is whether there is the same level (or at least kind) of artistic expression when someone uses something which is already copyrighted as their source.
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Anonymous Coward, 27 Jun 2011 @ 12:57pm

Re: Re: Re: Primacy
However, during a performance, the photographer has very little power over the lighting, etc. He pretty much takes a shot from that viewpoint and that's it. It's really all the photog can do.
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A non-mouse, 27 Jun 2011 @ 12:57pm

Re: Re: Re: Re: Photography is not art*. Jazz is not music.
"WHY are we YELLING every FEW WORDS?"

He's just trying to express himself in a creative & artistic way.

"I LOVE LAMP!"

Do you really love the lamp, or are you just saying it because you saw it?
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Anonymous Coward, 27 Jun 2011 @ 12:58pm

"At one time in my life, I spent more time in a dark room than was healthy (perhaps literally, given some of those chemicals), and even pondered pursuing photography as a career."

Photography's gain is our loss.
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jackn, 27 Jun 2011 @ 12:58pm

Re: Re: Re: Re:
I think pixel art can be fair use. I don't have anything against pixel art. I know it can be a challenge to represent an idea with less colors and 'space'.

I am focusing on the USE. IMO, the 8 bit project is a commercial use.
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ChurchHatesTucker (profile), 27 Jun 2011 @ 12:59pm

Re: Re: Re: "Artistic" is irrelevant
Duchamp did a 'defacement' of the Mona Lisa, and then Dali made it his own.

Obviously, the Dali estate owes the Duchamp estate at least $32,000.
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Jason, 27 Jun 2011 @ 1:00pm

Well, no and yes...
Mike: "Some have, incorrectly, assumed that you could just apply a filter to the original image and get out the pixelated version that Baio used."

The assumption that it can be done this way most certainly IS correct. The assumption that this method somehow nullifies the transformative nature of the work - that's the mistaken assumption. The choice of which filter to use, and what parameters to apply to this filter to get the desired effect - these are inherently artistic choices and just like Mike has said, tantamount to the same decisions in photography.
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Marcus Carab (profile), 27 Jun 2011 @ 1:00pm

Re: Re: Re: Re: Re:
and the stamp isn't? the photographer got paid...
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Anonymous Coward, 27 Jun 2011 @ 1:00pm

Re: Re: Re: Primacy
The question at hand is whether there is the same level (or at least kind) of artistic expression when someone uses something which is already copyrighted as their source.

How could someone actually consider the existence of copyright to have any bearing on whether something is art or not? Was there no art before copyright laws?
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Robert Doyle (profile), 27 Jun 2011 @ 1:02pm

I think one of the biggest beefs I have is that there are 'statutory fines' at all.

Isn't that exactly like saying that the government is also a part owner in all copyright? They are, after, pursuing the 'infractions' and collecting the fines...

What if, as an artist, I didn't want the statutory fines to apply? Isn't the beef between the artist and the alleged infringer?
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Anonymous Coward, 27 Jun 2011 @ 1:02pm

Re: Re: Re:
He should have just drawn a mustache and goatee on Miles Davis and called it, "Kind of L.H.O.O.Q."

Or would that be illegal too?
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TOG, 27 Jun 2011 @ 1:02pm

Re:
No one (who isn't missing a few marbles) remains an artist for love of the art. Art is created to be patronized. If there are no patrons, there is no art, there is just image, object, performance, etc.

If I recreate an Ansel Adams photo it is not art. A collector deems the Adams print (or, for those of us who cannot afford "original" art) a poster of the image to be art.

When the Egyptians created hyroglyphs, they were not creating art, but modern collectors deem them as such.

A urinal is not art unless Marcel Duchamp calls it art.

A bunch of paint splattered on a canvas is not art. But if splattered with forethought and inscribed with the name Pollock, it is art.
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Anonymous Coward, 27 Jun 2011 @ 1:04pm

Re: Re: Re:
Mike, would you accept that without the original copyrighted photograph, that the pixelated work would not exist?

That would seem to be clearly derivative and dependant on the original photograph, no? It doesn't really matter how much work is put beyond that, without the basic source material, there is nothing.

It is different from a photographer, because he is dealing with a moment in time, a fleeting thing. If the image isn't taken *now*, that time is gone. There is no "source material", just what exists in real life, not on paper.

The pixelated version (and it is a version) depends entirely on someone else's work. It's not really hard to understand.
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Matias Buselli (profile), 27 Jun 2011 @ 1:05pm

I think a lot of great arguments have been presented in this article and subsequent discussion. The only thing I would like to add is a question: are we properly protecting the interests of generations to come. or are we stretching the time for innovations to emerge in a legitimate way?

That is one question that remains to be answered. If copyright nowadays serves a legitimate purpose or not. I believe it does not, that currently all it does is taking tools away from people that allows them to be creative.

Should nature be entitled to sue humanity for all the inspiration derived from observation and "copying"?
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WarOtter (profile), 27 Jun 2011 @ 1:07pm

Re: The Rise of the Unprincipled
I read this :
"The problem is, almost no one understands the underlying principles of just about anything anymore. They only see 2 inches in front of their own face and thats IT."

And I thought "Yeah, that does sum up the Info Technology field...
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Marcus Carab (profile), 27 Jun 2011 @ 1:13pm

Re: Re: Re: Re:
Look, dude, I'm not defending the situation. I'm all for transformative work and remix art. I'm just saying that you seem to have made a mistake in this one aspect of your interpretation of copyright law, because using a lookalike would not make this okay under the law. Using a lookalike would not change the situation at all.
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Anonymous Coward, 27 Jun 2011 @ 1:13pm

Re: Re:
No one (who isn't missing a few marbles) remains an artist for love of the art. Art is created to be patronized. If there are no patrons, there is no art, there is just image, object, performance, etc.

That's tantamount to saying that art is only created by *commercial* artists. What a bunch of baloney. The commercial art snobs are sure coming out today.

A urinal is not art unless Marcel Duchamp calls it art.

A bunch of paint splattered on a canvas is not art. But if splattered with forethought and inscribed with the name Pollock, it is art.

Not only does it have to be commercial, but it has to be by a *famous* commercial artist, eh?

What a load. Typical copyright industry stuff. Abolish copyright.
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Marcus Carab (profile), 27 Jun 2011 @ 1:15pm

Re: Re: Re: Re:
Why haven't you answered my question about the photograph of the statue?

There's a situation where the photograph would not have existed without the already copyrighted statue. One court ruled it was transformative, another ruled it was infringing. What do you think? And how do you think it compares to this situation?
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Anonymous Coward, 27 Jun 2011 @ 1:30pm

Re: Re: Re: Re: Re:
Marcus, the statue is a work in a public place. It's intent is to be viewed and photographed.

The photograph would also not only contain the statue, but the sky, and any background, any people, foreground, etc.

The photograph is also not a copy of the statue, only an image of it. It is significantly transformative, as it goes from 3D rock to 2D flat image.

Would you care to try again?
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Anonymous Coward, 27 Jun 2011 @ 1:30pm

Re: Re: Re: Re: Photography is not art*. Jazz is not music.
What kind of lamp?

Magic Lamp?
Bioluminescent Lamp?
Hermit's Lamp?
Radiance or Repose?

Oops I did it again. Threadjacked.....
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Gracey (profile), 27 Jun 2011 @ 1:36pm

[What I have trouble with is the argument that this is different than photography. In both cases, you have artists who took something that was out there -- something they did not create -- and then turned it into an artform.]

I tend to differ with you here.

The photographer created the photograph by choosing - if you know photography then you know that what settings, what angle, how you setup the photograph create the results you get. Yes, it is created. It isn't something the photographer "didn't create".

The photographer did not create the musician, nor the circumstances (unless it was a private shoot), but the photographer did "create" the photograph and how it appears, the ambiance of the setting.

This isn't that much different than what the "artist" does, however if the artist is using the photograph as the reference, than than the actual subject as a reference (the living, breathing musician) then the artist is using someone else's work - as a reference for his own (provided he didn't just add a filter). He is using the photographer's concept to create his work from. You can't copyright an idea or concept, just the physical work.

I've had numerous pieces of my photography used by painters to create a painting. The painting is not my photograph, though the scene in the painting is the same as my photo. The artist has created their own rendition of the scene in a different art form. Most of the time though, long-time artists are as aware of copyright issues as photographers are, and I've seldom seen an artist take that liberty without at least letting me know and asking if that's okay...which it almost always is.
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Marcus Carab (profile), 27 Jun 2011 @ 1:39pm

Re: Re: Re: Re: Re: Re:
Okay well for one thing, the court apparently disagrees with you - the photographer was found to be infringing. So these things aren't quite as clear cut as you like to pretend.

Regarding additional elements, did you look at the link and the photo? The only elements it contained other than the statue were trees and snow. The statue is, by far, the central subject.

The fact of the statue being "public" is not the point - copyright law does not say that a sculptor gives up the copyright on his statue when he places it in a public place. People are free to photograph it for themselves, just as people would be free to pixellate photos for themselves - but when you want to sell and distribute that work, you need to first demonstrate that it is transformative and not. I believe that both the photo and the pixel art are transformative. I simply do not understand why you think one is and the other isn't.

Why is the transformation from 3D to 2D more significant than the transformation from photorealistic image to 8-pit pixellated artwork? I honestly see no reason that it is.

I think you need to slow down and think about this. You are responding from a place of emotion where you like photography and dislike pixel art, so you are defending one over the other for entirely subjective reasons. Please try to look at this dispassionately and I think you will see what I mean.
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Marcus Carab (profile), 27 Jun 2011 @ 1:40pm

Re: Re: Re: Re: Re: Re: Re:
**transformative and not infringing
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kyle clements (profile), 27 Jun 2011 @ 1:49pm

Re: Re: Re: Re: Re: Photography is not art*. Jazz is not music.
"There have been many cases of musicians and other artists creating stuff in their sleep"

So the tens of thousands of hours they put in to reach that point mean nothing?

When Picasso was asked how long it took him to make a painting, he answered by telling them his age.

Stephen Leacock was a writer of both textbooks and a comedies. When people assumed his comedy was just him goofing around, while his textbooks were his serious work, he would reply by saying that the textbooks were easy, all he had to do was find and arrange the facts. The humour was hard, he had to create something new every time.

"I find that to be very snobbish."
I'm reminded of an old saying. Something about throwing stones...
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Anonymous Coward, 27 Jun 2011 @ 1:56pm

Re: Re: Re: Re: Re: Re: Re:
Marcus, what I don't get is that you make your own proof. It the statue is under copyright, and someone attempts to make commercial use of it without permission, they will likely lose in a court of law. Even then, it would have to be shown not to be transformative in nature, that it was in fact used in a commercial manner, etc. These are the same standards that the court applied to the pixelated image.

In the case of Miles Davis photograph, the photographer got a model release for Mr Davis (and possibly for the location used, if needed). Mr Davis granted him rights. The image, example, likely could not be used to sell McDonalds. But it certain was used as an album cover, and perhaps may have also been released seperately as "art".

The pixel artist didn't not get a release or have rights on the photograph.

It's not very hard to understand. I actually get a headache trying to explain something so incredibly simple to you.
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darryl, 27 Jun 2011 @ 1:57pm

Re: A Rose is a Rose
no its a photograph of a work of art.

A photograph that is a work of art, is not a work of art because it is a photograph, just the same as applying paint to a canvass does not constitute a work of art.

The scene itself that is the subject of the photo is NOT a work of art, but is a reality.

A treeline and a lake and snow might be a very nice vista, but it is NOT a work of art.

When someone paints that scene or takes of photo of that scene they are not TRANSFORMING that scene or subject of their work.

If you take a photo that someone else have allready taken and you 'transform' that photo into something else.

You HAVE NOT CREATED or TRANSFORMED ART!

The 'art' is the ability to capture your subject in a manner that is both artfull, and expressive.

It's not that you are 'stealing the art' if you are taking a photo of the subject, it is that you are CREATING art from your own artistic skills and abilities.

The same principle applies regardless of your method of artfull expression.

Ie, it makes no difference if it is a photograph or a painting, it is your skills and abilities in your chosen art that determines if you're work is or will be considered art.

But to get out of your car, and see a nice scene for you to claim that view you are lookig at is somehow 'art' is a joke.

Look at some of the works of Claude Monet, with multiple paintings of the exact same scene, the scene itself is not art, but the interpretation of the artist of that scene and his expression of it in painting is art.

What is transformative about Monet's work ?

What about his "lilly pond" series, its just a body of water with lillies on it, but it is how Monet interprets that is what makes it art.

Many people paint bridges and lilly ponds, but that does not mean that the work of Monet was a derivative from any previous works, nor does it resemble any works by others, but does resemble his own works, of the same scene.

So to make the claim that "the art is always there, and all you have to do is capture that image and bingo you have 'art' is bullslop to say the least.

And mike you cannot work this out ??? or is it you have another motive for trying to warp reality ?
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pahosler, 27 Jun 2011 @ 1:57pm

Re: A Rose is a Rose
exactly my thought. Make a photograph of a photograph and then you can do what you want with it, right? This argument might sound idiotic, but isn't it basically what photographers argue? BTW where royalties paid or were there even mentions for the suit designer, the tie designer, the jewelry designer, the trumpet manufacturer, etc.? Should everyone get paid for their contribution to the photograph? The photographer didn't make or create any of those things.

Maybe that's why a lot of galleries don't allow cameras, so you can't just go around snapping photos and claiming "new" copyrights on other peoples work?
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jackn, 27 Jun 2011 @ 1:59pm

Re: Re: Re: Re: Re: Re:
Sorry, I did not catch that he was paid??? I didn't read that one very well.

I am probably got this wrong too, but I assume those statues are public property, commisioned by the gov. They should be public domain. I will have to re-read it.
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Marcus Carab (profile), 27 Jun 2011 @ 2:01pm

Re: Re: Re: Re: Re: Re: Re: Re:
Just a minute ago you said that you think photography of a statue is transformative. Do you stand by that? And if so, why is it more transformative than pixel art?

You are not having trouble explaining, you are trying to drag things off topic. Answer that simple question: why is a photo of a statue more transformative than a handmade pixel rendering of a photo?

Or are you saying the higher court was right to rule that the photographer infringed on the sculptor?
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New Mexico Mark, 27 Jun 2011 @ 2:03pm

One dimension off?
Interesting points made here, and I definitely agree that the pixelated image was delightfully transformative. However, I was chewing on the statement, "In Maisel's case, it was taking the real, physical 3D Miles Davis performing, and turning it into a photograph."

Playing devil's advocate, I would say photographs are not just a 2D representation of 3D scenes. Time is a critical dimension. What makes many photographs iconic are that they capture a unique moment / event. In many cases that can be recreated to some extent -- a sunset over a mountain range for instance -- with very similar results. Others are far more unusual and sometimes far more difficult or even impossible to recapture.

Photographs of people can be quite ephemeral because of the very nature of the subjects. As such, a photograph of a person *might* be held to higher standards of ownership.

Maybe some native tribes had it right when they didn't want to be photographed and have their souls captured.

NMM
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Marcus Carab (profile), 27 Jun 2011 @ 2:05pm

Re: Re: A Rose is a Rose
It sounds to me like you are saying that this pixel art is okay. You said it doesn't matter what your subject is, it only matters that you have skill in a medium and apply that to capture the subject. That's exactly what the pixel artist did, darryl...
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MrWilson, 27 Jun 2011 @ 2:06pm

Re: Re: Re: Re: Re: Photography is not art*. Jazz is not music.
The actual artistic effort is made when the artist translates their dreams into a communicable medium, like a song or a story or a painting. Art is a form of communication. It must be able to be communicated to be art. A dream may be unconsciously creative, but unless you're telepathic, you can't communicate your dreams in their raw form.
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Anonymous Coward, 27 Jun 2011 @ 2:30pm

Re: Re: Re: Re: Re: Re: Re: Re: Re:
I do think it is transformative, but my personal opinion doesn't hold water against a court ruling, does it? See, unlike you, I am willing to accept that the rule of law may be different from my own opinion. I have not read the full judgement nor looked at the full case you are referencing, and I am sure there are subtle issues at play.

I am not dragging anything off topic. We are talking about a pixel image, and you are the one asking about statues. Go figure.

I asked Mike the simple question: would the pixel iamge exist without the photograph?

The photograph without the statue would still be a photograph, although it would be of an empty space and perhaps some background. The pixel image would be nothing, because there was nothing to start with.
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RD, 27 Jun 2011 @ 2:34pm

Re: Re: A Rose is a Rose
"The scene itself that is the subject of the photo is NOT a work of art, but is a reality.

A treeline and a lake and snow might be a very nice vista, but it is NOT a work of art.

When someone paints that scene or takes of photo of that scene they are not TRANSFORMING that scene or subject of their work."

Ah, good. Then we agree that photographs should not be afforded copyright status, yes?

Because you just said....
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Marcus Carab (profile), 27 Jun 2011 @ 2:38pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
I am bringing up the statue to make a comparison, since you insist photography is more transformative, and I am showing you an example of where it was found not to be. It is not off-topic, it is highly relevant.

Court rulings are exactly what we are discussing here, and there's nothing wrong with that. Fair use rulings can often go either way depending on the attitude of the judge - any IP lawyer will tell you that. In the sculpture case, two different courts ruled two different ways.

In this case, Baio decided to settle but quite a few people have said that his fair use defence might have worked had he wanted to make it - so speculation about the ruling is exactly what we are talking about and other similar cases are important to look at.

Your argument about the photo "still existing without the statue" is completely pointless. By that standard, there would be no such thing as transformative work at all, since by definition all transformative work makes use of something else. The album cover would still exist without the photo - it would just be a different pixel rendering, or something completely different.

The only thing that makes something transformative is the presence of artistic choice. And you have still not given a single reason why photography involves more artistic choice than pixel art. Why? Because there are none.
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Gill Bates, 27 Jun 2011 @ 2:41pm

Re: typos
Wow, someone other than me knows and cares about grammar and usage.
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Anonymous Coward, 27 Jun 2011 @ 3:18pm

My definition of art is the only correct one!!!
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Anonymous Coward, 27 Jun 2011 @ 3:47pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
His fair use defence would fail because the image was used for commercial purposes, even if that purpose was only to promote his own brand in a giveaway.

You said: "you have still not given a single reason why photography involves more artistic choice than pixel art. Why? "

Me: Oh god, do I have to repeat myself? You are playing the game of trying to reframe the issue, getting away from the nub of the issue. Artistic choice doesn't enter into the discussion. Originality does. The photograph is original, a moment in time of a person, one that will never be repeated. The pixel art is a duplication of that photograph, nothing more. Without the photograph there is no pixel art. The photograph is taken without requiring any other "art".

You are chasing it around in circles, but (just like Mike often does) you are ignoring the key issue. If you could agree that the pixel art only exists because of the photograph, you would already be 50% of the way to actually understanding something.
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RD, 27 Jun 2011 @ 4:11pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
"His fair use defence would fail because the image was used for commercial purposes, even if that purpose was only to promote his own brand in a giveaway."

No, its you who fail with your shoddy understanding of fair use laws. Whether the work is commercial or not is only ONE of the legs a work is judged on for fair use. There are others, you know, and they also weigh in. Commercial use does NOT automatically disqualify fair use, though you and rights holders seem to think so.
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White Corn, 27 Jun 2011 @ 4:21pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
The pixel art is a duplication of that photograph, nothing more.

Really? A duplication of that photograph and nothing more? You are really going to stand by an inane statement that anyone who's not blind can see just isn't true?

The photograph is original, a moment in time of a person, one that will never be repeated.

It's difficult to parse what you are trying to say here. How can it be original if it's, as you say, "of a person". Is it more original than the person it depicts? "A moment in time". Do you have any grasp of how photography actually works? Like, the science behind it? You use the word "moment" as if it's inextricably linked to the originality of the image, but I really can't see how the milliseconds that it took for the camera to record light at the time the photograph was taken has anything to do with originality. There's time stamps on the pixel art too. The specific actions that unfolded during the time the pixel art was created will never be repeated again in exactly the same way either.

Artistic choice doesn't enter into the discussion. Originality does.

Really? The photographer took a photo of a famous jazz musician playing his instrument in a dark and possibly smoky jazz club. That right there is a shockingly original idea for a portrait, surely no earlier photographers were daring or brilliant enough to think of capturing their subjects in mid-performance.

All art is derivative. If you don't believe this is so, please point me to any famous work of art that does not both build directly upon the art that's come before it and also remains or remained uninfluenced by its historical moment. For the sake of argument for the time being let's concentrate on well known work and leave outsider work created by institutionalized people out of it since their influences will be unnaturally constrained, narrow, and harder to pinpoint.
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White Corn, 27 Jun 2011 @ 4:26pm

Re: Re: Re: Re: Primacy
The fact this argument gets brought up so often makes me think none of the pro-copyright people have ever cracked open a book on art history.
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Marcus Carab (profile), 27 Jun 2011 @ 4:28pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Okay fine, so you are contending that there can never be any acceptable commercial transformative work under fair use - that it is always derivative and infringing. And that photographers should be dragged to court when they sell photos that include buildings, statues, folk art, graffiti and anything else with a copyright on it.

I think that's horrible, but you're entitled to your anti-art vision of the world if that's what you really want. Glad we clarified.
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Marcus Carab (profile), 27 Jun 2011 @ 4:31pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Incidentally, it's funny that you would say "artistic choice doesn't enter into the discussion" since the courts have firmly established that the "artistic choices" of a photograph are actually the only things covered by copyright. So I also infer from your comment that you are against copyright for photography in general.
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Anonymous Coward, 27 Jun 2011 @ 5:01pm

Re: Re: Re: Re: Re:
What if the look-a-like didn't look like Miles Davis? What if it were some bald Asian man holding a trumpet?

I think I've found a flaw in the law.
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davidf, 27 Jun 2011 @ 5:12pm

Re: Primacy
About 1/4 of the way through this article I started thinking about the IBM BIOS story. Where Columbia Data Products used 'clean room design' to clone the original BIOS for IBM PCs. Allowing IBM PC Compatible computers to take over the world...

CDP basically had a team reverse engineer the original BIOS and produced a written specification of what every function should do. Another team was then handed the spec and produced their own code that did the same thing.

In this case if Baio had Photoshopped the Maisel image then I would have a problem with it, but if he interpreted and recreated it manually then good for him.
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Jose_X, 27 Jun 2011 @ 5:32pm

Re: Re: Re: Primacy
What is the logic for not allowing the person in pictures or anyone else who designs any part of what appears in a picture to have copyrights and have those pictures be derivative works?

I support at most a weak short-term copyright, and one reason is that current law seems to give too much to too few and short-changes everyone else involved in the creative process.
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MrWilson, 27 Jun 2011 @ 5:38pm

Re: Re: Re: Re: Primacy
I was just saying what the law currently is, not what I think it should be.
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Anonymous Coward, 27 Jun 2011 @ 6:31pm

Re: Re: Primacy
Do the tools really matter, though? That's all Photoshop is, that's all a camera is, that's all a paintbrush is.
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William Beem, 27 Jun 2011 @ 6:33pm

I'm flattered. You don't mean to single me out, and then you proceed to do exactly the opposite of what you said.

I doubt that I can change your mind, but your argument calling me hypocritical is dubious.

First, you don't know the circumstances that surrounded Maisel's capture of Mile Davis in concert. Why was Maisel there with his camera? Could it be that he was authorized by Miles Davis (or his management) to make a photograph? I'm not sure how much you know about concert photography, but the folks who get to make these images must first have approval from the performer, the venue, or a combination of the two. It's very likely that Maisel was authorized to make his "copy", as you put it. That's more than Baio can claim.

Next, you limit Maisel's photograph to merely that of a historical document. Yes, Maisel made many choices. What focal length to use? What composition did he select - as you clearly can't see ALL of Mile Davis in the photo. What moment did he select? All of these are creative aspects of photography that are distinct from the visual experience of watching Miles Davis perform.

Jay Maisel caught a moment, from a specific perspective and using a specific composition, that no one else saw or captured. The photo is not just a copy, as you state. I doubt you believe me, but it's been fun to be singled-out by you as an example.
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Dave, 27 Jun 2011 @ 6:40pm

Just curious....
Is this you?
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AW (profile), 27 Jun 2011 @ 6:53pm

Re: Re:
The high court got that dead wrong, like a lot of things they've gotten dead wrong lately. For crying out loud they ruled that having more money means you're more of a person.
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Cameron Smith, 27 Jun 2011 @ 7:08pm

Do the people arguing that Baio stole the image also argue that photographers who take photos of building are stealing the architects designs?

Isn't it the same thing?
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3-D, 27 Jun 2011 @ 7:16pm

Picasso
"Bad artists copy. Great artists steal."

If one of the greatest artists ever to live acknowledged it, why are all these supposed modern "artists" so pissy over it?
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Gwiz (profile), 27 Jun 2011 @ 7:32pm

Re:
All of these are creative aspects of photography that are distinct from the visual experience of watching Miles Davis perform.

Just curious here.

Do the creative aspects of the pixel artist's choices that make his work distinct from the original album cover count for anything?
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Dj Gilcrease, 27 Jun 2011 @ 7:32pm

Better filter
Here is an example of applying a filter that is a little better then the one in the story, both images use the exact same 8 colors. It's clear to me the Kink of Bloop cover by Andy Baio is an artistic interpretation of the original where the filtered one I created is just that, the original with a color filter applied.
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Jay (profile), 27 Jun 2011 @ 7:38pm

Re:
And so that's to say the pixelation didn't take time after it was asked to be made?

Are you ignoring everything about how the hand made pixelation came to be, simply because Maisel came first?
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John Hupp, 27 Jun 2011 @ 7:40pm

Re: Primacy
Actually, because of personality rights, Miles Davis' likeness is in many respects copyrighted. Jay Maisel couldn't just go and use the image to sell, say, trumpets, without permission from Miles Davis' estate. And personality rights are legally unambiguous and supported by case law, unlike moral rights, which were the main thrust of Maisel's complaint against Andy Baio.

The offensive thing here is that Maisel was able to secure a settlement not because he actually had legally protected moral rights, but because he had more money for expensive lawyers than Andy Baio.
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Hulser (profile), 27 Jun 2011 @ 7:41pm

Re: Re: Re: Re: Primacy
However, during a performance, the photographer has very little power over the lighting, etc. He pretty much takes a shot from that viewpoint and that's it. It's really all the photog can do.

I disagree. A photographer may have "little power over the lighting", but s/he has ultimate control over the exposure. The point it that with photography, many (maybe even most) of the variables which go into the final product of a "picture" is out of the photographer's control, but enough are to qualify as art.
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Alex Bowles, 27 Jun 2011 @ 7:47pm

Re: Photography is not art*. Jazz is not music.
"Just avoid DERIVATIVE work, and you avoid all these "copyright-ish" problems."

The whole point of Fair Use provisions is to save people from having to think like this. Indeed, if there were no recognizably valuable and culturally worthwhile derivative works, then the need for Fair Use provisions wouldn't even exist.

If you don't approve of Fair Use, fine. But the honest thing to do is argue against Fair Use directly. Threatening people with abusive legal action to indirectly suppress what you will not oppose openly just makes you look like a thug.
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Hephaestus (profile), 27 Jun 2011 @ 8:35pm

Re: Re: Primacy
I really can't wait until this era of "I own this idea" is over and done with. How can you own an idea?
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Anonymous Coward, 27 Jun 2011 @ 8:44pm

Re: Re: Re: Re: Re: Re:
Instead of using yellow pixels, you use brown ones!
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Philip, 27 Jun 2011 @ 8:48pm

Re: Re: A Rose is a Rose
Your opinions are very nice. But they are merely opinions. You can't tell me that the universe itself isn't art, that only some representation of it can be art.

I suspect you feel very strongly about this. But I don't respect the argument for itself, because no one has come along and made an artistic representation of it, and I don't respect arguments that aren't art.

See how that works?

What I think is a joke is when people think they can define art. You can try, but you're only limiting yourself.
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Aaron Martin-Colby (profile), 27 Jun 2011 @ 9:08pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
"If you could agree that the pixel art only exists because of the photograph, you would already be 50% of the way to actually understanding something."

I find this statement shocking. How in the world can you possibly see this as the primary litmus test of whether art is transformative or not?

All art is inspired by something. Hell, all of HISTORY is inspired by something else. Didn't you ever watch "Connections?"

The examples of great works that would have never existed if not for a previous work is limitless. Dire Straights "Money For Nothing" wouldn't have existed if not for Billy Gibbons' guitar work. Most cars wouldn't look as they do if not for earlier cars. Hello, Hyundai!

All art is directly inspired by something previously. No work exists in a vacuum.
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Any Mouse (profile), 27 Jun 2011 @ 9:24pm

Re: Well, no and yes...
Try it, sometime. You truly could not get the pixelated image that Baio used. If you compare the two images you can tell that right off, but feel free to prove it wrong by spending a few hours with Photoshop. I figure that's how long it will take you to get bored.
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Anonymous Coward, 27 Jun 2011 @ 9:31pm

Re: Re: Re: Re: Re: Re: Re: Re:
"hese are the same standards that the court applied to the pixelated image."

Did not! Never went to court.... that's the problem!
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Bob, 27 Jun 2011 @ 10:19pm

You have obviously never earned your pay making photographs.
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Anonymous Coward, 27 Jun 2011 @ 10:29pm

Re: Re: Re: A Rose is a Rose
"It sounds to me like you are saying that this pixel art is okay"

No Marcus, im saying it is NOT ART, allthough the original photo of the subject IS ART...

The painting 'the mona lisa' is a work of art, a photo of that painting is not a work of art

The statue of "David" is a 'work of art' but 'David' himself was NOT a work of art, he was a person.

Miles Davis in not a 'work of art' but if someone 'captures' his image in a form, and that form and that work of capture, CAN be considered as art.

Yes there are lots of things in the Universe that are "nice to look at" but to call reality as "ART" is simply not right.

If you take a work of art, that is ALLREADY ART (ie, miles davis photo), and you 'change' that image in someway, you are not creating art, you are taking the work from someone else (with talent) and using that for your own gains and benifit.

All art is NOT derivative, and taking existing art and making it look a little different but not different enough so that it cannot be immediately recognized as the original work (as in this case).

Then it is clear that simply pixelating an existing image, that is already considered to be a work of art.

Is NOT creating a new work of art, but is simply COPYING the artistic talent from someone else.

Why did I expect that the majority of people on TD would not think 'whatever Mike says'!!!!! :)
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Anonymous Coward, 27 Jun 2011 @ 10:33pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Inspiration doesn't mean duplication. Inspiration might have had him looking at the original image, and using the overall feel as the basis for an original work. But what we have here is that all of the subtle pieces of the original photograph are here. It's especially obvious in the areas of highlight and lowlight, of creases, folds, and the like that have all been carried faithfully into the 8 bit image.

In other words, he wasn't inspired... he worked from the original. The original image was his starting point. He didn't look at 10 Miles Davis images and come up with something original in 8 bit that paid homage to but didn't duplicate any one of them, he took the original image and made it into an 8 bit version.

Without the original image, there would be no 8 bit version. There is no "inspired by", just "duplicated from".
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Anonymous Coward, 27 Jun 2011 @ 10:37pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Marcus, one of the problems in trying to have a discussion with you is that you spend your time trying to push the conversation into the wrong places, trying to trip the other person up with word games and ignorance. It's amazing to watch you go. When you start to lose, you start to pile it on incredibly thick.

The "artist choice doesn't enter into the discussion" is only in relation to my point: Where did each image start from? It isn't a legal measurement, it is only me trying to make it simple enough for your tiny brain to understand. One started with nothing, one started with the other artist's work. That really isn't hard to understand, is it?

The rest, well, I could say the sky is blue, and you would argue in multiple posts about the greenish tinge it has on some days. It's meaningless to try to discuss with you on any level, you fail to accept any other views other than your own and the one Mike's feeding you.

It's really too bad. You could be an intelligent commentator, but you lose it all in being petty and narrow minded.
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darryl, 27 Jun 2011 @ 10:49pm

Re: Re: Re: A Rose is a Rose and a rose is not art
"You can't tell me that the universe itself isn't art"

Yes, I can !!!!!!

Have you ever heard the term "Art is in the eye of the beholder"?

That means that what you consider to be art, may vary from what others consider to be art.

Yes, I agree the universe is a very pretty place, but it is as much 'art' as saying:

David (the sculpture) of the real person, is capable of walking and talking, and you could replace that sculpture with the original person and it would be considered as "art".

No, that is clearly not the case,

"What I think is a joke is when people think they can define art."

Is that not exactly Mike has set about to do in this article?
That's right, its a joke, for Mike to try to 'define' art.

But in fact, yes art can be 'defined' and clearly, lets look at some definitions of art shall we ?

Sculture - is a definition of art
Paining - many many differernet definitiosn of painting, such as portraits, scences, modernism, qubeism, modern.

Photopraphy, like all other art forms can be in some circumstances considered art, but not all, just like not all sculpure or paintings are considered 'artisic'.

But if I see a really nice sunset, I dont say, WOW what a lovely work of art! Do you ??
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Anonymous Coward, 27 Jun 2011 @ 11:13pm

Re:
exactly what I was thinking!!!!

Damn, if only Mike had some talent, then we might not of ever heard of him.

I guess if you cannot 'cut it' as a photographer (or artist) you might as well dedicate your life to allowing other equally untalented people to profit of the people who actually have talent.

So we get the dregs...

Can you imagine Mike the 'budding freelance photographer' being more than happy for anyone to use his hard gained images for their own gains.

Especially when in that situation, Mike goes without money or income that would otherwise allow him to continue his work (and the creation of more art) !

I guess if you lack the skills and telent to be an artist you might as well champion the cause of standing up for the rights of your fellow untalented people who cannot create anything original, and cannot expess any artistic talent.

Someone has to stand up for the no talent losers..
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The eejit (profile), 28 Jun 2011 @ 12:45am

Re: Re: Photography is not art*. Jazz is not music.
Fair Use should be the ficking default.
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Martin Pannier, 28 Jun 2011 @ 1:49am

Make a dignified living, or hoard rights?
I think that most of the divide here is that having the right is different from exercising it indiscriminately. On top of that, young web-savvy users, despite being culturally remix-prone, understand that copyright law exists to allow artists to make a dignified living off of their work � like everybody else! However, what they don't understand, is Maisel's rights-hoarding attitude with regards to his picture.

More thoughts on this:
http://journal.martinpannier.fr/maisel-vs-baio-protecting-your-economic-inter

(Sorry for the self-promotion folks.)
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Anonymouse the Original, 28 Jun 2011 @ 2:29am

Re: Re: Re: Re: Re: Photography is not art*. Jazz is not music.
I'm suing you for violating my copyright on amusing Anonymous variants. Go back to your Contrarian nature and quit riding my artistic efforts!
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Emmanuel Carabott (profile), 28 Jun 2011 @ 2:38am

derivative work
I really worry about how far copyright is stretching especially considering rights on derivative work. I am amazed how we're not in a situation where any art form is actually not possible to do legally anymore even though I am afraid we're actually getting there!. Proponents of copyright keep pushing for more and more rights. Now lets assume they succeed and since we're on subject lets take photography as an example.

Derivative work is art work which is based on other art work right? so lets take a simple photograph. In a simple typical photograph you will get:
Cloths, make up, jewelry, colours (different pigement in cloths, wall colours, car colours, etc..), vehicles, buildings, statues, adverts, shoes. lets just stop there, each of these has an element of design, each of these has an element of art contributed by one or more people.

Are we really going towards a world were to take a simple photograph while on holiday you have break the law by infringing on people's rights? Causes it seems to me this the reality that we're heading towards. (I know most the things I listed are currently not copyright-able but at least for some, the industry is pushing for them to become so)

I am not saying we should drop copyright completely but I do think it needs to be a lot more "forgiving" and allow other people to express themselves within certain limits.
Derivative works are a tricky subject but I do agree with those who say every work of art is derivative as I pointed out in my example of a simple photograph.
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Anonymous Coward, 28 Jun 2011 @ 2:55am

Re: Re: Re: Re: A Rose is a Rose
"If you take a work of art, that is ALLREADY ART (ie, miles davis photo), and you 'change' that image in someway, you are not creating art, you are taking the work from someone else (with talent) and using that for your own gains and benifit."

Which is, of course, why nobody has ever heard of that obscure artist who took a picture of a soup tin (designed by a talented graphic designer) and simply coloured it in and duplicated it, 'for their own gain adn benefit'. That's clearly wasn't art, right? Transformation is in no way an artisitic process, right?
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Moritz Moeller, 28 Jun 2011 @ 3:00am

I wrote a post about similar issue a while back. It has some reflections on the subject that may add to the debate. :)

http://www.virtualritz.com/archive/on-plagiarism-creativity-in-the-digital-age/
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Mike Masnick (profile), 28 Jun 2011 @ 3:01am

Re:
You have obviously never earned your pay making photographs.

What does that have to do with anything?
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Mike Masnick (profile), 28 Jun 2011 @ 3:07am

Re: Re: Re: Re: A Rose is a Rose
No Marcus, im saying it is NOT ART, allthough the original photo of the subject IS ART...

And you are who again? And who was it who put you in charge of deciding what is and what is not art for everyone else? Oh, right, no one. That's why no one cares about what you say is and is not art.

The painting 'the mona lisa' is a work of art, a photo of that painting is not a work of art

Ok. So photographs are not art.

Miles Davis in not a 'work of art' but if someone 'captures' his image in a form, and that form and that work of capture, CAN be considered as art.

Oh wait. Photographs are art.

If you take a work of art, that is ALLREADY ART (ie, miles davis photo), and you 'change' that image in someway, you are not creating art, you are taking the work from someone else (with talent) and using that for your own gains and benifit.

Hmm. So, then it's not okay to take a photo of Miles Davis -- the *artist* -- and call it art, right? After all, all he did was taking the work of someone else (with talent) and using it for his own gains and benefits.

I think you have a bit of a double standard, Mr. Anonymous "I DECIDE WHAT IS ART."

And that's the hypocrisy I was pointing out in the article. You have a double standard, thought it appears you have so much cognitive dissonance, you can't even realize it.

All art is NOT derivative, and taking existing art and making it look a little different but not different enough so that it cannot be immediately recognized as the original work (as in this case).

I recognize Miles Davis in Meisal's photo, so we're back to saying that's not art.

Is NOT creating a new work of art, but is simply COPYING the artistic talent from someone else.

Just as Meisal copied the look of Miles Davis.

Right. So, not art.

Glad we cleared that up.
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darryl, 28 Jun 2011 @ 3:15am

Re: Re:
"What does that have to do with anything?"

It's called "knowing what you are talking about".
As opposed to a monday morning quarterback.
Or simply credability.

or showing you have some ability to "practice what you preach".

It is clear from your statements that you are far more "a talker" and A Do'er".
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Prisoner 201, 28 Jun 2011 @ 3:22am

Re: Re:
Good man. You are most correct. The plebians should not get any ideas.

How can they call their poor excuse for creations Art, when they don't even have a gallery to properly display them to the genteel? Phaw!

To be an artist, you must have a patron. There is a reason for the words "Patrons of the Arts".

The dirty uneducated masses do well to struggle to improve and civilize themselves, but they should make no claims to artistry, that is simply offensive.

Now I must bid you farewell, my afternoon tea shall soon be served. Jeeves, fetch me my reading monocle!
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Prisoner 201, 28 Jun 2011 @ 3:27am

Re: Re: Re: Re:
Not that I disagree with your sentiment, but some artworks actually take damage from the camera flash (mostly pigments of various types).

But trying to "hog the market" and force visitors to buy merchandise seems awfully low for an institution that displays ancient treasures - its like that broadcasting rights thing.
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Prisoner 201, 28 Jun 2011 @ 3:30am

Re: Re: Re: Re: A Rose is a Rose
Darryl - the biggest single consumer of paradox crumple zones in the northern hemisphere.

Go ahead little man, continue to amuse me. Dance for me.
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darryl, 28 Jun 2011 @ 3:34am

Re: Re: Re: Photography is not art*. Jazz is not music.
science deal as much or more in the "abstract" as does art.

The two fields are in some ways very similar, and just as in science or engineering art is a form of expression or interpretation of the subject of the art.

Science if an interpretation and expression of information but tied into 'a method' and disipline that art does not have.

whether science is hard and art is easy would have a great deal with the individual, and what you're perception of art is.
If I write a computer program that I feel is very very good, I would define it as 'a piece of art', just as I would for the design of an eligant electronics circuit.

For me science is easy, engineering is easy, but if you asked me to draw a picture it would be crap.

But give me a guitar and you would be amazed (after 30 years of playing so I should be)..

So is being able to play guitar an art or a science ?
I would say it is art, but each to their own, there is no 'easy or hard' about it, it is what it is.

If I play guitar, and I play note for note someone elses work, I do not consider myself "an artist" or try to take credit with coming up with that tune.

For me, to really express art with a guitar, or a painting would be if you can create your OWN expression in that art.

Therefore, If I compose a piece of music, or more probably improvise music then that work is my own creation and therfore my own artwork.

But not when I am playing 'stairway to heaven'.

Taking a photo and making it look slightly different is no more art or transformative than me playing a popular song and calling it my own unique creation.
(and using the excuse that just because I do not play as well as Jimmy then I have an excuse to copy it!!!!!)..

when you were a small child and you played with your coloring in books where you have a number for each colo(u)r.

When you finished that picture, by filling in the white areas did you consider that you just painted an original painting ? Really ?
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Prisoner 201, 28 Jun 2011 @ 3:38am

Re: Well, no and yes...
Actually, making music using digital tools is a lot of twiddling settings like that. A lot of synth VSTIs are all math (Vanguard for example), and as such only the settings matter.

So, twiddling knobs and buttons is definitely art.

If you disagree, leave your camera on its factory default zoom, focus etc, from now on.
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Prisoner 201, 28 Jun 2011 @ 3:46am

Re: Re: Re:
This is an example of the fallacy that the validity of an argument depends in any way on the attributes of the delivery system.

You are an idiot Darryl, but that is not a valid reason to disqualify your arguments. Your arguments (and those of Mike and everyone else) stand or fall on their own.
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dude, 28 Jun 2011 @ 4:06am

Re: Photography is not art*. Jazz is not music.
if it wasn't for Miles Davis then Maisel wouldn't have had anything to work with either...
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Emmanuel Carabott (profile), 28 Jun 2011 @ 5:36am

what is art
@darryl

I think you're making a mistake, in that you're associating art with skill and that is not necessarily related. Take Van Gogh for example his artwork isnt that spectacular in the sense that complexity wise his paintings were pretty simple, something a mere kid could draw. what made his paintings spectacular is the technique and colours he used. The point of art is not to look good or be outstanding, what makes art, art is the emotion, message or sensory trigger it creates.

It is society in general that decides what is and what is not art by how it reacts to various works. A blog post with no intention of being artistic might be so moving as to create sadness in readers that act alone would make it art even if it was never intended as such.

At then end of the day there are so many people in the world with so many ideas that react to so many different stimuli that It is probably safe to assume everything is actually art!

Going back to the pixel art in question, some people are fascinated by such a simplistic representation of the original that conveys the same image with a fraction of the detail, that fascination create wonder which is an emotion ergo it is in fact art. I was personal fascinated by the pictures in the other article related to this where the pixilated art go progressively more pixelated ending in a few boxes of solid color, which makes that simple geometric display art! which technically was derived from the same original photo so does that mean that a few coloured boxes infringe on Maisel's copyright too? and if those coloured boxes do not infringe why does the original pixelated image, its just a more detailed view of that last image!
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Anonymous Coward, 28 Jun 2011 @ 6:17am

Re: derivative work
The art forms are legal, nobody is stopping anyone from making new, original pixel art. You want to do it, you can do it. Nobody will stop you. Use your imagination, come up with a scene, and make pixel art. Wow, nobody stopped you. It must be legal,right?

However, if you take a copyright image, and use that as your "inspiration", you need to accept responsiblity for that and pay for the rights to use that underlying image. It is the right thing to do, it's the legal thing to do.

If you take a photograph while on vacation for your own personal uses and enjoyment, there is not an issue. However, depending what is in that image, you would need a location release or agreement before you could sell the image commercially. It would be even more clear if that image was used to sell another product.

Copyright is entirely forgiving in your personal use. Do what you like. Enjoy. Just don't post them online to a commercial service, because that may be violating someone's rights.
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Marcus Carab (profile), 28 Jun 2011 @ 6:26am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Dude, you have demonstrated pretty clearly that you don't know the first thing about this stuff. You made the extremely basic fallacy of thinking commercial use is the only test of fair use (exposing that you are very ignorant about the subject) and now you are trying to back out of another gaffe in which you dismissed the question of "artistic choice" even though there would be no such thing as photography copyright without that.

Really. That's what you don't seem to grasp. Photography was seen as undeserving of copyright originally, because it was simply considered an act of copying - but photographers made the strong case that the "artistic choices" involved in that copying make it deserving of copyright. Sound at all similar to this debate here?

Seriously - educate yourself at least a little bit, and you won't stick your foot in your mouth as often.
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Jason, 28 Jun 2011 @ 6:34am

Re: Re: Re: Primacy
"This argument is more appropriate to 'photography isn't art' rather than the argument being made by Mike."

Ergo the term 'Devil's Advocate'.
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Anonymous Coward, 28 Jun 2011 @ 6:52am

Re: Re: Re: Re: Re: Re: Photography is not art*. Jazz is not music.
So the tens of thousands of hours they put in to reach that point mean nothing?

So you're saying dreaming is hard work? Hey, I want my pay!

When Picasso was asked how long it took him to make a painting, he answered by telling them his age.

I see. Art is related to age, and the older you are, the more artistic you are. I suppose then that at some point everything you do becomes art. So, if someone is 100 years old and makes a poop, then that poop is art because it took them 100 years to make it. You bet.

"I find that to be very snobbish."
I'm reminded of an old saying. Something about throwing stones...

And you would do well to keep being reminded of it, as you seem to keep forgetting it.
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static, 28 Jun 2011 @ 6:57am

I represent...
I represent the designers of Miles Davis's Suit, Tie, Shirt, and Trumpet. We are preparing to sue Jay Maisel over the inappropriate copywriting of a photograph which is nearly 50% derivative of our protected original material. It is ridiculous that Mr. Maisel continues to profit from the blatant exploitation of our designs. Without our jacket- it might have been "Kind of Pinstripe Gray".
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Emmanuel Carabott (profile), 28 Jun 2011 @ 7:08am

Re: Re: derivative work
I do not agree with you on a couple of points. 1. its true if you take a photo for your personal use it is unlikely anyone will come after you, however that doesn't mean you did not infringe. That to me is still scary!

As for the inspiration part, if inspiration makes you liable you honestly don't think that can get scary in the long run? If using a picture as an inspiration for a completely different type of artwork makes it derivative and not fair use, What about using a picture as inspiration for taking another picture. What about variations of it? If I take a picture of a public monument does that mean now nobody can take a picture of that monument as it can be considered derivative of my work? What about getting inspired by a certain type of composition would that infringe? What if someone doesnt really copy a certain composition but it ends up being similar to someone else's work?

What I am saying is if we try to be this strict we'll end up in a situation where every artist that does any work that becomes successful risks ending up being asked by other artists for licenses as some of his work might be similar to theirs and that is wrong!

Don't get me wrong I know there is a dark side on the opposite side of the spectrum, I am not arguing that someone should be able to just take a picture of a picture and sell that as his own. I don't know where to properly place the line but I believe as it is right now It is too strict.

For me the Pixel art is a total different work then the original picture, the art in the original picture involved the correct lighting, framing, posing and angle choices. The art in this Pixel art was choosing the right palette, composing in a way to still convey the same image with as few colours as possible, creating the detail that shading provides without using shading as well as changing shapes to still convey the same sense even if they're totally different. Its a completely different discipline.

Now let me ask you a question, if instead of copyright from the picture the artist might have come across it and then tried to replicate it in such a way that there would be a few slight differences but the overall feel would still be the same would that be infringing?
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Emmanuel Carabott (profile), 28 Jun 2011 @ 7:16am

Re: I represent...
Some are trying to introduce copyright in the fashion world too, if that occurs this satirical example would actually come true!

Now its true that the fashion would add to the picture but is it fair that whoever designed the jacket gets a share of any profits a photographer does? and the shirt? and the tie? And the jewelry? and the design of the instrument? and the engineer of the light sources? should Maisel really pay a license to each of these people so that he can sell his photo?
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Anonymous Coward, 28 Jun 2011 @ 7:22am

Re: Re: A Rose is a Rose
A photograph that is a work of art, is not a work of art because it is a photograph, just the same as applying paint to a canvass does not constitute a work of art.

I see, so only only some photographs are works of art, huh? And you're probably the one who decides, right?

The scene itself that is the subject of the photo is NOT a work of art, but is a reality.

And so Miles Davis is not an artist and was only creating a scene in reality, from which the "artistic" photographer created true original art. But wait, as soon as the photograph is created, it too becomes part of reality and, thus, is no longer art either! In fact, if being part of reality makes something not art, then in reality there is no art. What universe do you live in, darryl?

It's not that you are 'stealing the art' if you are taking a photo of the subject, it is that you are CREATING art from your own artistic skills and abilities.

Kind of like the pixel artist, huh? Oh, wait, you don't consider *that* art. And, so, there you go contradicting yourself, again. Typical.

Many people paint bridges and lilly ponds, but that does not mean that the work of Monet was a derivative from any previous works, nor does it resemble any works by others, but does resemble his own works, of the same scene.

I don't see how you have any way of know that work was not based on previous works. Are you just making crap up now? If not, then please provide evidence proving that nobody had ever previously painted a similar scene. For all I know, that Monet painting could have been a copy of some other painting.

So by that reasoning, in capturing the scene that was there, Maisel did not create art and to say otherwise is "bullslop". There you go arguing against yourself yet again.

And mike you cannot work this out ??? or is it you have another motive for trying to warp reality ?

Talk about warping reality, darryl, your repeated self-contradictions are one of the surest signs of such a thing that I know of.
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Anonymous Coward, 28 Jun 2011 @ 7:27am

Re: Re: Re: Re: A Rose is a Rose
Yes there are lots of things in the Universe that are "nice to look at" but to call reality as "ART" is simply not right.

And it's up to darryl to pronounce what is "right"? I wonder if darryl considers himslef to be a mere prophet or G*d himself.
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Niall (profile), 28 Jun 2011 @ 7:30am

Re: Re: Re: Primacy
Reinterpreting an existing picture is likely more transformative than just copying it and pixellating it through a filter.

Similarly, a photo of a painting can totally change the effect and context that the painting is in, as well as alter the lighting, mood and so on. So yes, I'd say there is room for artistic interpretation or creativity.

Personally, I suspect had they changed the instrument to something more modern/digital-looking, Baio might have had a stronger case.
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Anonymous Coward, 28 Jun 2011 @ 7:34am

Re: Re: Well, no and yes...
If you disagree, leave your camera on its factory default zoom, focus etc, from now on.

And above all, stay away from that "shutter" button!
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Niall (profile), 28 Jun 2011 @ 7:34am

Re: Re: typos
Not just you, we just get worn down...
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Anonymous Coward, 28 Jun 2011 @ 7:42am

Re:
The photographer did not create the musician, nor the circumstances (unless it was a private shoot)...

I think the musician probably had a just a little to do with creating things like his own looks, expression and playing style, don't you?

...but the photographer did "create" the photograph and how it appears, the ambiance of the setting.

Umm, I'd like to see you create that photograph without Miles Davis.
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Jason, 28 Jun 2011 @ 7:46am

Re: Re: Well, no and yes...
Or I could use a script to do the trial and error while I stay here and make fun of Darryl.

It's just math, dude. I still believe the math-aided choices are absolutely art, though.
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Anonymous Coward, 28 Jun 2011 @ 7:51am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Marcus, watching you go off is classic denial and covering, probably even better than most people here can pull off.

You dragged the discussion off course, you attempted to add complication and misdirection, and you tried to bury the main point:

Without the photograph, the pixelated verison of the photograph would not exist.

The photograph existed without needing someone else's artwork to create it.

Everything else you have brought in (and I have tried to address) is misdirection away from this basic truth. You don't want to accept the truth, it clearly shows why your beloved remix artists are violating copyright.

Until you are able to address a simple point and say "yes or no", and until you can face the facts rather than trying to bury them, you will never learn anything.

I make mistakes at times. Can you not accept that you blew it on this one, and failed to accept the basic facts of the case?
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Anonymous Coward, 28 Jun 2011 @ 7:52am

Re: Re:
The photograph is fair use by itself. Reselling the image to be used in a commercial purpose is not fair use.

I know, it's hard for someone with a pea brain to understand, but I am sure one day you might catch it.
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Jason, 28 Jun 2011 @ 7:56am

Re: Re: Well, no and yes...
"The choice of which filter to use, and what parameters to apply to this filter to get the desired effect - these are inherently artistic choices and just like Mike has said, tantamount to the same decisions in photography."

I'm sorry, does this sound like disagreement?
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Marcus Carab (profile), 28 Jun 2011 @ 7:58am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
You want me to address that point simply? Here you go:

YES - without the photo, that particular piece of pixel art would not exist. But that is meaningless.

I honestly don't see why you think that, alone, is the be-all and end-all of this debate. Are you saying that there is NO SUCH THING as transformative fair use?

Because if there IS such a thing, then the analysis has to go beyond the fact that the pixel art makes use of the photo - the analysis has to determine whether or not such use qualifies as fair and transformative. And that analysis, according to the law as written and case law, is based on the presence or absence of artistic choice.

By avoiding that whole question, and focusing merely on the fact that the pixel art uses the photo, you seem to be suggesting that there is no such thing as legal transformative use without a license. Is that your position?
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Marcus Carab (profile), 28 Jun 2011 @ 8:00am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
And would you care to address the fact that you don't actually know how fair use works? You've proven it above by claiming that commercial use is the only factor. Are you going to admit how wrong that was, or just gloss over it?

Seriously - educate yourself. I know you think you sound smart, but you actually sound like a big-mouthed simpleton.
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Marcus Carab (profile), 28 Jun 2011 @ 8:04am

Re: Re: Re:
Again with this... Let me spell it out for you:

That's now how fair use works.

Commercial use is NOT the only factor. If you could shut your yap for ten seconds and google it, you'd learn how wrong you are from EVERY SINGLE SOURCE ON THE PLANET. I mean really - do you know ANYTHING about copyright law? Because you are making the most basic, childish fallacies. Educate yourself jackass.
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Niall (profile), 28 Jun 2011 @ 8:09am

Re: Re: Re: Re: Re:
And justifying 'copyright' on an item hundreds or thousands of years old is also crappy.

Me, I'd pay a small fee for a decent method where the pictures I took in a museum could be monetised by the museum. Especially ones that have free entry (like we often have in the UK). Unfortunately, most museum 'official' offerings are much like old albums - a few good pictures, and loads of filler. So why should I shell out for those?
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The eejit (profile), 28 Jun 2011 @ 8:10am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Two of the three greatest works in the English language were proven to be shamelessly taken from other people in their repective historical erae.

I am, of course, referring to The Canterbury Tales and to Shakespeare's Compleate Folio. Had copyright existed at all, neither of those would have been possible.

IO stand by my statement that fair use should be the fucking default. You should have to PROVE infringement, not PROVE that it wasn't.
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Marcus Carab (profile), 28 Jun 2011 @ 8:12am

Re: Re: Re:
Here, this shouldn't be too far above your reading level:

http://en.wikipedia.org/wiki/Fair_use

There's a section called "Common Misunderstandings" that you should pay close attention to.
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The eejit (profile), 28 Jun 2011 @ 8:12am

Re: Re: Re: Re: Re: Re: Re:
OR we use the bloodstained pixels after your partner beats you to death with the Absurdia stick.
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The eejit (profile), 28 Jun 2011 @ 8:14am

Re: Re: Re: Re: A Rose is a Rose and a rose is not art
Everything is art, and all art is derivative. Thus, the univarse is derivative.

Gotcha.
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The eejit (profile), 28 Jun 2011 @ 8:17am

Re:
That's fair enough. But just because someone came first, doens't mean someone else can't make it work. It's an identical princicple to that of patents, only it's being applied to stifle someone's work of fanship.

I take it you're not an artist?
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The eejit (profile), 28 Jun 2011 @ 8:19am

Re: Re: Re:
Ah, the "Expertise" fallacy.
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The eejit (profile), 28 Jun 2011 @ 8:20am

Re: Make a dignified living, or hoard rights?
Hey, at least you're admitting you're biased. :)
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Niall (profile), 28 Jun 2011 @ 8:23am

Re: Re: Re: Re: Re: A Rose is a Rose
I think you have the wrong hemisphere...
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White Corn, 28 Jun 2011 @ 8:31am

Re: Re: Re: Re:
I have pretty much given up. I'd like to think that the commenters in this, the original thread, and the Brainwash thread are all the same person using multiple ips/computers because the arguing from ignorance thing has driven me insane. It's almost as if they are proud they have invented alternate histories for the evolution of art and music. I guess that aligns with their "I am a talented original" self image. It's pretty sad that they seem so proud of their lack of education and so resistant to the idea that educating oneself is admirable and not a symptom of weakness or a sign of letting the other side win. That's the same attitude all of this "real 'merican" political bullshit stems from. All I can figure is they see themselves as people with very special gifts and talents that lesser artists don't possess and they are afraid to consider any hard evidence that may conflict with this unrealistic inflated sense of self regard. I have spent my entire life around accomplished artists whose achievements are somewhat objectively validated through grants, museum shows, and even a MacArthur "genius" award or two. None of them hold these kinds of attitudes, and they would laugh the "I am a talented artiste, you are stealing from me, my work is like my children" statements right out the door. Those statements and beliefs are such a bush league, sunday painter cliches.
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RadialSkid (profile), 28 Jun 2011 @ 8:59am

Re: Re: Re: Photography is not art*. Jazz is not music.
Funny you should mention MC Escher...much of his body of work is inspired by North African art, combined with mathematical concepts based on the works of HSM Coxeter and Roger Penrose.

But he wasn't derivative, hmm?
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jupiterkansas (profile), 28 Jun 2011 @ 9:04am

The heart of the argument isn't pixel art vs. photography. It's did Baio need permission to create the art?

Obviously Maisel had permission to photograph Miles Davis, and Davis had permission to use the photograph for the album cover. It doesn't matter if it's art or not.

Baio was careful to get permission for all the music, but did not get permission for the cover art. The big fair use question is was permission needed? And if he didn't need permission to pixel art photo, why did he feel he needed permission to pixel art the music?

I think photographers get upset because nobody thinks of them. When someone covers music we always think about the original artist, but few people think of the photographer when they copy a photo. If anything, they think about the subject of the photo rather than the photographer. That's why photographers can be such vicious copyright hounds - it's the only way they get noticed.

But Baio's real point, which nobody is discussing, is that it simply costs to much to deal with these issues in the court of law, and so the rich will always win. That's what happens when the law is nebulous, which is a much more important issue here than what qualifies as art.

i.e. everyone's missing the point and blinded by a silly argument over "art" and "is it really a copy?"
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Marcus Carab (profile), 28 Jun 2011 @ 9:04am

Re: Re: Re: Re: Re:
His silence is the best victory we can hope for. I suspect he went off to google expecting to come back with a bunch of quotes to throw at me and then learned that - GASP - he actually was completely wrong about how fair use works, and his understanding of copyright law actually is elementary and heavily flawed. You can bet he won't be showing his face on this thread after making that discovery.
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Marcus Carab (profile), 28 Jun 2011 @ 9:06am

Re:
While you're right about this situation, I wouldn't call the debate over what counts as originality in art "silly" - it's quite important, if not to the immediate legal question then certainly to the broader discussion of copyright law and transformative works.
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Anonymous Coward, 28 Jun 2011 @ 9:11am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
I know how fair use works. It isn't an absolute, it is murky, it is clouded, and it depends often on individual circumstance and situation. Fair use is effectively a way of saying "I violated copyright but...", and the list of acceptable buts is fairly short but murky.

Fair use doesn't apply to a distributed commercial work.

What part of that aren't you understanding?
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Anonymous Coward, 28 Jun 2011 @ 9:14am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Marcus, that alone is a key part of the discussion because it isn't "inspired by" the image, it's based on the image. It is the image modified. The pixel artist didn't create a new work, he derived something from an old work. All the sweat of the brow, hard work, artistic effort, filters, skills, tools, artistic choices, and all that other stuff doesn't amount to a hill of beans.

He copied someone else's copyright art.

End.

Not much to it. All the rest of your discussion is misdirection, it's meaningless, and doesn't need to be answered because it just isn't relevant.
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jupiterkansas (profile), 28 Jun 2011 @ 9:30am

It's silly because pixel art isn't treated with the same respect as photographic art, so people have to defend it as art. People can't respect new art forms until they build a museum for it.

It's silly because people insist on judging art simply by its originality, which has nothing to do with whether something is art or not.

It's silly because commenting on culture through copying, imitation, variation, and reproduction is what art is all about, but because most of the art of the 20th century is owned by corporations, nobody is allowed to make art that comments on popular culture unless they can afford to pay off the corporate owners (although in this case, it happens to be a single individual).

It's silly to argue if something is art or not. Yes, it's all art, but all art has different values - monetary value, cultural value, personal value, historical value, celebrity value. The value is what separates great art from bad.
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Marcus Carab (profile), 28 Jun 2011 @ 9:32am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Fair use doesn't apply to a distributed commercial work.

What part of that aren't you understanding?

Wow, okay, I give up. That is a fundamentally incorrect statement. Fair use absolutely can apply to distributed commercial works, and has many times in the past.

No point continuing this conversation with you if you are going to make completely factually incorrect statements and pretend they are true.

Let's try this one more time, for clarity's sake: COMMERCIAL WORKS CAN BE FAIR USE.

You are 100% wrong when you say the opposite. I'm not sure if you're misinformed, lying or just stupid, but you are wrong, and I dare you to find a single source that agrees with you.

It's funny to watch you attempt to "wrap things up" based on what absolutely anyone reading this knows is a major error on your part.
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RadialSkid (profile), 28 Jun 2011 @ 9:34am

No-talent loser, indeed
And you're doing a great job.
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Marcus Carab (profile), 28 Jun 2011 @ 9:34am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
All the rest of your discussion is misdirection, it's meaningless, and doesn't need to be answered because it just isn't relevant.

Hehe, well, every court that has ever tried a transformative fair use case like this disagrees with you, because all of those factors are considered every time.

At this point you are just embarrassing yourself.
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Marcus Carab (profile), 28 Jun 2011 @ 9:40am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
In fact, let's simplify this. Here are two cases where commercial use was deemed to be fair use - one involving Greatful Dead posters and one involving magazine covers. In both cases, the judge SPECIFICALLY rejected the idea that commercial use automatically precludes fair use:

http://www.techdirt.com/articles/20090810/1913245833.shtml

I don't want to hear another word until you admit that your statement "Fair use doesn't apply to a distributed commercial work" was blatantly and completely incorrect.

If you can't admit that, there is no point discussing this with you any further, because you are clearly a liar.
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RadialSkid (profile), 28 Jun 2011 @ 9:40am

Re: Re: derivative work
...you need to accept responsiblity for that and pay for the rights to use that underlying image. It is the right thing to do, it's the legal thing to do.

In other words, creation is now a privilege for the wealthy. Sad.
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jupiterkansas (profile), 28 Jun 2011 @ 9:49am

Re: Re: Re: derivative work
Hey, if you can't afford paint, you can't make a painting.
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jsf (profile), 28 Jun 2011 @ 10:15am

Re: Primacy
The problem with this argument is that almost any photo you take of a person, other then possibly nudes, will include something that is copyrighted or trademarked. In the case of the original album cover then pattern of the fabric in the tie, and possibly the coat and shirt, is probably copyrighted. The trumpet and its mouthpiece are probably trademarked, along with the ring he is wearing.

A very classic example is the "32 Campbell's Soup Cans" by Andy Warhol. The copy he made was most definitely of something that was covered by both copyright and trademark.
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Marcus Carab (profile), 28 Jun 2011 @ 10:24am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Silence...

Finally realizing you don't know this stuff as well as you think you do, I guess?
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Hulser (profile), 28 Jun 2011 @ 10:56am

Re: Re: Re: Re: Primacy
Ergo the term 'Devil's Advocate'.

Playing devil's advocate means that you support a counterargument in spite of the fact you don't believe in it. My point was that what A Non-Mouse did was not playing devil's advocate because he wasn't arguing against my statement. He was arguing against a different, albeit related, argument. For example, if I say that the sky is blue because of water vapor and you reply that the moon is made of cheese, that's not playing devil's advocate.
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Jason, 28 Jun 2011 @ 11:34am

Re: Re: Re: Re: Re: Primacy
Yeah, see and I took it as he didn't agree with your argument and, playing devil's advocate, he extended it further to point out just how close it is to the "photography isn't art argument," (however he didnt' make a solid transition in this attempt and it was kinda weak sauce anyway, but I was trying to cut him slack). I could be wrong, though.

Anyhow thanks for the lecture there, Spock.
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RadialSkid (profile), 28 Jun 2011 @ 11:39am

Re: Re: Re: Re: derivative work
Paint doesn't cost thousands of dollars.
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Anonymous Coward, 28 Jun 2011 @ 11:51am

Re: Re: Re: Photography is not art*. Jazz is not music.
^This! A thousand times this!
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Gracey (profile), 28 Jun 2011 @ 12:12pm

Re: Re:
[I think the musician probably had a just a little to do with creating things like his own looks, expression and playing style, don't you?]

You don't capture a "playing style" in a photograph. Are you confused about the medium here? The photographer captured a pose - a moment in time. It could have any one of of a 100 different moments during any concert. Can you deduce the playing style of a musician from a photo? No. At least I sure can't.

As for the rest, why do you think I noted that the photographer has nothing to do with the creation of the musician...are you daft?

[Umm, I'd like to see you create that photograph without Miles Davis]

Okay, I generally am not too stupid, but...what has that got to do with the setting or the ambiance? The photograph is about the musician, he's the subject matter. Most artists don't "create" the subject matter either, but the create a "feeling" around the subject matter - whether it's a person or a rock.

How the photograph looks is what a photographer creates. I don't think I ever said the photographer created the subject matter of the photograph. Try reading with your eyes open.
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Anonymous Coward, 28 Jun 2011 @ 1:00pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
You dragged the discussion off course, you attempted to add complication and misdirection, and you tried to bury the main point.

It sounds almost as if you're talking to yourself there.

The photograph existed without needing someone else's artwork to create it.

You keep saying that as if Davis wasn't also an artist. OK, I'm going to say it: You're a liar. If it wasn't for the original image created by Davis as he played, the photograph wouldn't exist.

Everything else you have brought in (and I have tried to address) is misdirection away from this basic truth.

There you go, talking to yourself again.
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Mike Masnick (profile), 28 Jun 2011 @ 1:22pm

Re: Re: Re:
Or simply credability.

Oh sweet irony.
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Aaron Martin-Colby (profile), 28 Jun 2011 @ 4:10pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Then we are left with the question of how we are to determine whether something is a duplicate or not.

Kind Of Bloop is obviously transformative to a degree, so it's not a rote duplication, and the metric you're proposing is whether the work would have existed if the previous work hadn't.

I'm arguing that that is an impossible test, since all art is inspired, sometimes heavily, by earlier works.
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iBelieve, 28 Jun 2011 @ 4:49pm

Re: Primacy
Maisal's work was an origional work of art. What use it became to Baio was for his personal use? Commercial use? I could see the former needing to give credit to Maisal for the origional work. The latter needed a license to be used commercially, and if there was money made with a site that displayed it , Baio should be held to account for it and pay Maisal a sum to be decided by a jury. I see it as a derivative work, but without the neccessary permissions to post it publicly on the internet or sell hard copies for whatever reason.
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iBelieve, 28 Jun 2011 @ 5:02pm

Re: Re: Primacy
Additionally if the origional work of art by Maisal violated a 'personality' right or there was a licensing issue not sought from the Davis Estate for the origional work, then suit should be brought on by Miles Davis Estate.
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iBelieve, 28 Jun 2011 @ 5:08pm

Re: typos
Hulser s/b Hustler? >:-D
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White Corn, 30 Jun 2011 @ 9:47am

Street Artists bomb the mansion
Street artists last night exacted a bit of revenge on Maisal's already graffiti laden building in order to protest his sue happy ways:
http://hyperallergic.com/28169/millionaire-extorts-poor-artist/
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