It's a target-rich environment. Let's just pick a few:
And rather than recognize that, it now wants to smack around a guy they may have just sentenced to a life in poverty?
Neither the RIAA or the labels that where the plaintiffs in the case "sentenced" Joel to anything. Trade groups and plaintiffs don't do any sentencing. And neither does a civil court. Only a criminal court can impose a sentence. Joel admitted his guilt on the stand. The jury decided on the damages. And Joel could still settle that for a fraction of the damage award if he wanted.
No one has a "right to be paid for their work." You have a right to try to convince people to buy, and the RIAA and its labels FAILED in convincing Tenenbaum to do that....Today for lunch I may pick the deli rather than the pizza shop next door. Based on the RIAA's logic here, I have just "robbed" the pizza place of its "right to be paid" for its work. There is no right to be paid.
Sure there's a "right to be paid" if you use someone's work or a product they've offered for sale. You haven't "robbed" the pizza place by going to the deli because you had a sandwich and not a slice of pizza from the pizza place. You only have to pay for the goods and services you use. The labels didn't fail to convince Tenenbaum to obtain their product and use it, they were obviously successful because he did just that. It was Tenenbaum who decided that he didn't want to pay for the product he used and instead chose to obtain it and use it in violation of the law.
Funny, then, can you explain all the lawsuits that artists have filed against major record labels asking where the money owed to them has gone? ... And can you explain why the RIAA has been fighting for a new tax on radio stations? Isn't that just "taking what doesn't belong to you" as well? The RIAA has no problem taking what doesn't belong to them (though, usually it works hard behind the scenes to get politicians to pass laws to give it the appearance of legality).
So, Tenenbaum's illegal action should be excused because some record labels sometimes use shady accounting practices? That an opinion on morality, not a "fact" or even a good reading of the law. If the RIAA convinces Congress to extend royatlies dues for radio play that isn't "taking what doesn't belong to you" and it isn't the "appearance of legality." If Congress passes the law (assuming it's not challenged and overturned) then the activity is the definition of legality and the collections aren't "taking," they're a legal right.
You've accused me elsewhere of making "moral" arguments where only economic arguments should apply. This seems a highly emotional "moral" argument rather than a legal one.
Can Cara Duckworth and the RIAA share with us some details on how the "settlement fees" from all the folks threatened by the RIAA has been distributed to artists?
You assume that the RIAA receives those settlement funds. I don't believe that's correct. I believe whatever money is left after expenses goes to the labels. The RIAA may get some of that in fees or membership dues, but not directly from the settlements. The RIAA therefore has no obligation to distribute any money to artists. That's not it's job. As for what money might be owed the artists, that would depend on their contracts with their labels.
The RIAA has no requirement to enforce its rights.... There's no such thing as that you "had to enforce" your rights.
I'll give you a half point here. There is no requirement to enforce their rights. But though you may disagree vehemently with them, there are valid reasons to do so. Such as their members asked them to.
There we are with the "deserve to be paid." Hell, I "deserve to be paid" for my work too.
You deserve to be paid for the work you do that other people make use of and that you are offering for sale. If you can't get paid for your work, might I suggest a better business model?
You could drop the case. You've already declared (somewhat misleadingly) that you were giving up this strategy of suing music fans. Why continue to tarnish the RIAA's reputation by bankrupting a kid for listening to music?
Let's not misrepresent what they said about not suing anymore: they said they would not file any new cases, but would pursue the ones that had already been filed, including the "doe" cases. And the labels didn't sue Tenenbaum for listing to music, they sued because he obtained, and redistributed, that music in violation of the law.
Cara, since I spent so much time correcting your errors, half-truths and misdirections, I feel that I deserve to be paid for this hard work I have done for you. Based on your logic, I should see a check in the mail from you shortly, yes? Clearly, if you don't pay up, we can only assume that you are arguing that I don't deserve to be paid for my hard work. So which is it?
If Ms. Duckworth asked you to "correct" her "mistakes" and you had agreed on a fee, then you certainly would deserve to be paid. But you chose to do this on your own, on spec. So I wouldn't hold my breath looking for a check. And, since you've chosen to freely give away your work posted here, there is not reason you should feel you "deserve" to be paid. You made your choice already, you never offered your hard work for sale. Even if you had, if no one wanted it or made use of it, there is no expectation of payment.
And even if you did think you deserved to be paid, given the specious nature of your arguments here--especially this last one, I doubt you would deserve much.
No matter how clearly Tenenbaum broke the law, it doesn't change the only real fact: the RIAA has failed to embrace new business models when they appear
It's not the RIAA's job to embrace new business models, unless you're referring to new business models for trade associations. No matter how clearly the record labels have failed to embrace new business models, it doesn't change the only real fact: Tenenbaum broke the law, was found guilty in court, and a jury found him liable for damages.
I'll certainly agree with you that RIAA would have been better served by keeping quite, or putting out much more moderate PR, but as others have noted, quite a lot of this post isn't correcting facts, it's substituting opinion for facts.
In the counter-complaint AP filed in the Shepard Fairey lawsuit, there is this allegation that Fairey (through his attorney) did the exact same thing when he sent a C&D letter to a Texas artist who used one of Fairey's images (transformed).
Here's the quote from the C&D letter (from the AP's filing):
Finally, I want to call your attention to California Civil Code 985, which reads in part "Letters and other private communications in writing belong to the person to whom they are addressed and delivered; but they cannot be published against the will of the writer, except by authority of law." Accordingly, I do not expect to see this letter in a public forum and you are not authorized to publish it, including (without limitation) by putting it on the Internet. This also applies to your posting of my Client's first cease and desist letter online. Demand is also made that you remove your public copies of by Client's correspondence.
The AP filing can be found here. The quote comes from paragraph 121 on page 35.
Aside from the vanishingly slim chance that Congress would change copyright law for only one type of content, who's to decide which content is academic and which isn't? You'd be looking at shades of gray that would rival what determining what is considered fair use is today.
Unfortunately, it's not going to happen. The best that could be hoped for is that publishers be convinced that it's in their best interest to not assert copyright. And there is already work, as I noted above, being done in this area.
Frankly, if a sea change to open publishing is going to happen, it will first happen in the scholarly publishing sector.
STM (science, technical, medical) journal publishing tends to be a little more involved than that. The vast majority of researchers and authors in this area have long relied on publishers to render their texts properly, first in print, and then electronically. Those authors have no interest in learning the complexities of markup; for example MathML (an XML markup language for mathematics) that is used to correctly present complex formulas.
It has been suggested that university libraries could take over this role, but their budgets are being slashed as it is and they've shown no inclination to do so. The experience with institutional repositories also tends to suggest that the output of STM literature would likely suffer.
Publishers still add value. And there are currently many experiments in Open Access journal publishing where the literature is available free of charge and sometimes free of reuse restrictions as well. Of course, all of them are subsidized at the moment and have yet to prove to be self-sustaining.
...it seems that a work may be considered fair use or not solely because of what an artist said his or her intent with the work was.
The intent of the artist should certainly be considered (as it goes to determining the "purpose" of the use), but it should never be a sole determining factor. The artist may have intended to use another's content to a purposeful end, but it is generally up to the court to decide whether the artist was successful.
About the only way I can see artist's intent as being dispositive is if all other parts of the four-factor test are perfectly in balance.
In other words, artist intent should be considered, but only as one factor among many others.
It's not that the public can't be heard, but that there aren't enough effective, organized advocates for the public. And it's not that the "public" are morons, but that these are not issues that the vast majority of people are aware of or think about very often. Businesses are nearly always going to advocate for more protection because they see it as being in their best interest (and the best interest of their boards of directors and shareholders).
And a part of the problem is that the debate itself has become largely antagonistic and polarized. A lot of hyperbolic and angry talk, but not much communication.
Sorry to harp on this Mike, but I really do think you have this backward. Copyright law is specific that photographs are protected by copyright. The photograph itself is indeed copyrighted. Since the statute requires that a protected work be "original works of authorship" that are fixed in a tangible medium, and specifically includes a "pictorial" work (and further specifically defines this to include photographs), photographs are by law copyrightable.
Photographs, too, are subject to fair use, that is using a portion of the work for uses outlined in the fair use clause.
It's the image that is the original expression, which is why the photograph is copyrightable. That protection does not extend copyright to the subject matter, which is what I think you're trying to get at (though I've been apparently wrong in the past when making such judgments).
Obama's expressions in general are not copyrightable, though the capture of them in a photograph is. Obama could recreate the pose down to the detail and photographs could be taken without violating AP's copyright to it's photo, especially since this is a news photo of a public person.
Leigh v. Warner Bros. is really not applicable here.
And you might have quoted the very next sentence (where your ellipses are) in the opinion as well:
Thus, the district court correctly identified the elements of artistic craft protected by Leigh's copyright as the selection of lighting, shading, timing, angle, and film. See Rogers v. Koons, 960 F.2d 301, 307 (2d Cir.1992).
And further, that the court held that there were similarities between the photographs in question that were protected and therefore issues of fact to be decided at trial:
Although it may be easy to identify differences between the Warner Brothers still shots and Leigh's photograph, however, the Warner Brothers images also have much in common with the elements protected by Leigh's copyright. All of the photographs are taken from a low position, angled up slightly at the Bird Girl so that the contents of the bowls in her hands remain hidden. Hanging Spanish moss borders the tops of all the photographs except the soundtrack cover. The statue is close to centered in all of the pictures except one newspaper advertisement for the movie, which places the Bird Girl in the left third of the frame. Light shines down and envelopes the statue in all of the images, leaving the surrounding cemetery in relative darkness. All of the photographs are monochromatic.
These expressive elements all make the pictures more effective. The Spanish moss provides a top border to the images. The location of the statue and the lighting in the pictures together draw the viewer's attention. The lighting also lends a spiritual air to the Bird Girl. Finally, by keeping the contents of the Bird Girl's bowls hidden, the angle contributes to the mystery and symbolic meaning of the images.
A jury ultimately may conclude that the similarities between the protected elements of the Leigh photograph and the Warner Brothers still shots are not "substantial." The similarities are significant enough, however, to preclude summary judgment.
All these creative elements are present in the AP photo of Obama, which support their claim of copyright to the photo.
You and I disagree on a lot, based on opinion, but this time you've got your facts wrong.
Nonsense. You've argued here and in other responses to this post that the photograph is not covered by copyright, which is out and out incorrect. Even Fairey is not arguing that since he's claiming his use was fair use.
The fact that Obama has his head tilted in a specific way, was gazing in a specific direction, had a specific expression on his face and was sitting against a specific backdrop are indeed not copyrightable. But given that the photographer had positioned himself at a specific angle, chosen specific a specific lens and camera settings, chose a specific focus, and chose a specific instant in time to capture Obama's particular expression are all elements of the creative nature of the photograph and why the photographic image is subject to copyright.
Yes, Fairey chose that photograph on which to base his work because of Obama's "look" but the important element that you seem to miss is that it is Obama's "look" as captured in a specific photographic image.
Fairey didn't just take elements of the "look," he took the specific copyrighted image and photoshopped it (and then registered the copyright to his version).
I've said here in the past that, in my opinion, Fairey's use was transformative enough to qualify as fair use. That was based on discussions here and my reading of various news items. Having actually read Fairey's complaint, and AP's answer and counter-claim, I'm not so sure that's true.
Fairey claims that he used a photo of Obama and George Clooney as his inspiration, and using only a small portion of that photo. AP presents pretty convincing evidence that this is not the case. The "cropped" close-up photo, the one that matches Fairey's image almost exactly, was a separate photo from the one with both Obama and Clooney. The part of the larger photo showing Obama has a number of differences from the separate photo of just Obama, including what can be seen of the flag in the background, lighting and focus.
Fairey also seems to be quite aggressive at going after people who proceed to apply the same level of "transformation" to his work. I wonder what he might think if I were to take his image, flip it, change the colors, and sell it on merchandise? Fairey's past actions would indicate that I'd be sued for infringement pretty quickly.
Discussing who benefits from "externalities" does muddy the waters a bit. And as noted above, the law does indeed say that the photographer has a copyright in the photograph, which he apparently transferred to AP. So the statement "it doesn't mean they own the rights to Obama's face, they own the rights to that picture of Obama's face" is entirely accurate.
Mike, this is a real stretch. While I consider Fairey's use to be highly likely to be fair, the law on this is pretty straightforward regarding whether the original photograph is protected by copyright, and it most certainly is. It matters not at all what Obama "looked" like, what his expression was. If Fairey used the photograph as inspiration to paint a likeness of Obama with that expression, none of this would have been likely to come up. But Fairey's image, less the coloration and removal of the background, is a nearly exact duplicate of the original photo, and he admits that it's the same.
Questions about whether the photo was "special" because of the subject's expression have no bearing on whether it was copyrighted. This is not about Obama's "look," it's about a particular use of a copyrighted photograph and whether that use was transformative enough to qualify as fair use and not infringement.
It would have been better if the linked site actually had more information on the context, rather than implying that the agreement was for use of the park.
Mike is saying that the AP applies a double standard in that they can benefit from transforming content from others, but that once the AP transforms the content, all further transformations are prohibited. Your corrections appear to be stating that AP is not applying a double standard because the content becomes copyrighted when the AP does the transformation.
Yes, I am saying just that. There is no "double standard." News--noteworthy events and the actions and statements of people--are not copyrightable and can be used by anyone as news. AP is creating content that reports that news, content that is subject to copyright, which places limits on how others can use that content. Note that it doesn't completely forbid other uses, especially transformative uses. So you are correct in stating that the relevant question is the amount of transformation.
Mike further states "And, yet, when it comes to the other direction, suddenly the AP says that no one else might benefit from externalities. Only it may benefit from externalities."
I believe this to be untrue and a misstatement of the situation. There are plenty of beneficial "externalities" that people gain from AP content, not the least of which is widespread and timely access to news, which many consumers don't pay for, at least not directly.
Are some "externalities" restricted? Yes. But nowhere near the extent Mike claims.
Ah, so what you are saying is that copyright grants the benefits of positive externalities only to the copyright holder.
Not at all. There are plenty of positive "externalities" that are not covered by copyright, including your enjoyment of singing a song and enjoying it.
The problem is that there really is no secure way (government granted or otherwise) to keep others 100% from benefiting from externalities. It is a pipe dream.
That's not the purpose of copyright and never has been. There are specific benefits that are protected, mostly involving controlling the use and exploitation of a protected property and most of those related to tangible expressions of the protected property. Copyright has never been and cannot be 100% protection or control.
This particular paragraph was separate from the Fairley fair use claim, focusing on AP's use of "externalities" of news creation and subsequent "externalities" of news reporting. The "newsmakers" (i.e., the activities and statements of those that are the focus of a news report) have no explicit copyright in what they do or say. As Mike notes, these are "facts" that are not subject to copyright. However, the written (or recorded) report is.
But I believe Mike is talking about the benefits of "externalities" outside of the application of copyright to make the point that positive "externalities" flow both ways and to everyone's benefit. However, I don't think you can completely divorce those benefits from copyright except in the very abstract (at least not in the current climate).
You are correct that there is no legal requirement to credit a source in a fair use claim. I just think it would make Fairley's case stronger.
And, yet, when it comes to the other direction, suddenly the AP says that no one else might benefit from externalities. Only it may benefit from externalities.
Hmmmm. That's quite a stretch and misstates the situation.
And, yet, when it comes to the other direction, suddenly the AP says that no one else might benefit from externalities based on content it created and to which it owns the rights. Only it may benefit from externalities freely given by newsmakers, which it transforms by its reporting.
There...that's better.
Both Mannie Garcia and the AP benefited greatly from Shepard Fairey's externalities. But because they feel he benefited too much, they want to sue him.
"Benefited greatly"? Again, a stretch. Fairely never identified the source of the photo or the photographer, so until much later, no one knew that it wasn't entirely Fairely's creation. How exactly have either AP or Garcia benefited "greatly"? They've gotten subsequent publicity, mostly negative in AP's case and it's hard to see how AP could benefit "greatly". Garcia might, on the other hand, get a benefit of publicity, but only after it was discovered that it was his photo that was the basis of the poster.
Fairley may have a very valid fair use claim here. But for those "externalities" created by the poster to benefit the photographer, wouldn't it have to be known that he was the photographer? In my opinion, Fairely's fair use claim would be stronger if he'd identified and credited the photographer (if not AP).
Once, again, Mike, you seem to be overstating the case to make your point. The "externalities" created by someone using my work in a new context only benefit me if my contribution is known.
On the post: Correcting A Few 'Facts' From The RIAA... For Which We Feel We Deserve Payment
Correcting the "Corrections"
And rather than recognize that, it now wants to smack around a guy they may have just sentenced to a life in poverty?
Neither the RIAA or the labels that where the plaintiffs in the case "sentenced" Joel to anything. Trade groups and plaintiffs don't do any sentencing. And neither does a civil court. Only a criminal court can impose a sentence. Joel admitted his guilt on the stand. The jury decided on the damages. And Joel could still settle that for a fraction of the damage award if he wanted.
No one has a "right to be paid for their work." You have a right to try to convince people to buy, and the RIAA and its labels FAILED in convincing Tenenbaum to do that....Today for lunch I may pick the deli rather than the pizza shop next door. Based on the RIAA's logic here, I have just "robbed" the pizza place of its "right to be paid" for its work. There is no right to be paid.
Sure there's a "right to be paid" if you use someone's work or a product they've offered for sale. You haven't "robbed" the pizza place by going to the deli because you had a sandwich and not a slice of pizza from the pizza place. You only have to pay for the goods and services you use. The labels didn't fail to convince Tenenbaum to obtain their product and use it, they were obviously successful because he did just that. It was Tenenbaum who decided that he didn't want to pay for the product he used and instead chose to obtain it and use it in violation of the law.
Funny, then, can you explain all the lawsuits that artists have filed against major record labels asking where the money owed to them has gone? ... And can you explain why the RIAA has been fighting for a new tax on radio stations? Isn't that just "taking what doesn't belong to you" as well? The RIAA has no problem taking what doesn't belong to them (though, usually it works hard behind the scenes to get politicians to pass laws to give it the appearance of legality).
So, Tenenbaum's illegal action should be excused because some record labels sometimes use shady accounting practices? That an opinion on morality, not a "fact" or even a good reading of the law. If the RIAA convinces Congress to extend royatlies dues for radio play that isn't "taking what doesn't belong to you" and it isn't the "appearance of legality." If Congress passes the law (assuming it's not challenged and overturned) then the activity is the definition of legality and the collections aren't "taking," they're a legal right.
You've accused me elsewhere of making "moral" arguments where only economic arguments should apply. This seems a highly emotional "moral" argument rather than a legal one.
Can Cara Duckworth and the RIAA share with us some details on how the "settlement fees" from all the folks threatened by the RIAA has been distributed to artists?
You assume that the RIAA receives those settlement funds. I don't believe that's correct. I believe whatever money is left after expenses goes to the labels. The RIAA may get some of that in fees or membership dues, but not directly from the settlements. The RIAA therefore has no obligation to distribute any money to artists. That's not it's job. As for what money might be owed the artists, that would depend on their contracts with their labels.
The RIAA has no requirement to enforce its rights.... There's no such thing as that you "had to enforce" your rights.
I'll give you a half point here. There is no requirement to enforce their rights. But though you may disagree vehemently with them, there are valid reasons to do so. Such as their members asked them to.
There we are with the "deserve to be paid." Hell, I "deserve to be paid" for my work too.
You deserve to be paid for the work you do that other people make use of and that you are offering for sale. If you can't get paid for your work, might I suggest a better business model?
You could drop the case. You've already declared (somewhat misleadingly) that you were giving up this strategy of suing music fans. Why continue to tarnish the RIAA's reputation by bankrupting a kid for listening to music?
Let's not misrepresent what they said about not suing anymore: they said they would not file any new cases, but would pursue the ones that had already been filed, including the "doe" cases. And the labels didn't sue Tenenbaum for listing to music, they sued because he obtained, and redistributed, that music in violation of the law.
Cara, since I spent so much time correcting your errors, half-truths and misdirections, I feel that I deserve to be paid for this hard work I have done for you. Based on your logic, I should see a check in the mail from you shortly, yes? Clearly, if you don't pay up, we can only assume that you are arguing that I don't deserve to be paid for my hard work. So which is it?
If Ms. Duckworth asked you to "correct" her "mistakes" and you had agreed on a fee, then you certainly would deserve to be paid. But you chose to do this on your own, on spec. So I wouldn't hold my breath looking for a check. And, since you've chosen to freely give away your work posted here, there is not reason you should feel you "deserve" to be paid. You made your choice already, you never offered your hard work for sale. Even if you had, if no one wanted it or made use of it, there is no expectation of payment.
And even if you did think you deserved to be paid, given the specious nature of your arguments here--especially this last one, I doubt you would deserve much.
No matter how clearly Tenenbaum broke the law, it doesn't change the only real fact: the RIAA has failed to embrace new business models when they appear
It's not the RIAA's job to embrace new business models, unless you're referring to new business models for trade associations. No matter how clearly the record labels have failed to embrace new business models, it doesn't change the only real fact: Tenenbaum broke the law, was found guilty in court, and a jury found him liable for damages.
I'll certainly agree with you that RIAA would have been better served by keeping quite, or putting out much more moderate PR, but as others have noted, quite a lot of this post isn't correcting facts, it's substituting opinion for facts.
On the post: The Copyright Of Cease-And-Desist Letters
Re: Re: Shepard Fairey Irony
On the post: The Copyright Of Cease-And-Desist Letters
Shepard Fairey Irony
Here's the quote from the C&D letter (from the AP's filing):
The AP filing can be found here. The quote comes from paragraph 121 on page 35.
On the post: Should Copyright Be Abolished On Academic Work?
Re: Re: Re: academic authors usually give up their copyrights anyway...
On the post: Should Copyright Be Abolished On Academic Work?
What's Academic?
Unfortunately, it's not going to happen. The best that could be hoped for is that publishers be convinced that it's in their best interest to not assert copyright. And there is already work, as I noted above, being done in this area.
Frankly, if a sea change to open publishing is going to happen, it will first happen in the scholarly publishing sector.
On the post: Should Copyright Be Abolished On Academic Work?
Re: Publishing No Longer Necessary
It has been suggested that university libraries could take over this role, but their budgets are being slashed as it is and they've shown no inclination to do so. The experience with institutional repositories also tends to suggest that the output of STM literature would likely suffer.
Publishers still add value. And there are currently many experiments in Open Access journal publishing where the literature is available free of charge and sometimes free of reuse restrictions as well. Of course, all of them are subsidized at the moment and have yet to prove to be self-sustaining.
On the post: Should Artist Intent Matter In Determining Fair Use?
Only Intent?
The intent of the artist should certainly be considered (as it goes to determining the "purpose" of the use), but it should never be a sole determining factor. The artist may have intended to use another's content to a purposeful end, but it is generally up to the court to decide whether the artist was successful.
About the only way I can see artist's intent as being dispositive is if all other parts of the four-factor test are perfectly in balance.
In other words, artist intent should be considered, but only as one factor among many others.
Wow. I guess I generally agree with Mike!
On the post: Can The Public Be Heard On Copyright Issues?
Effective Voices
And a part of the problem is that the debate itself has become largely antagonistic and polarized. A lot of hyperbolic and angry talk, but not much communication.
On the post: By The AP's Own Logic, The AP Ripped Off Obama
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Photographs, too, are subject to fair use, that is using a portion of the work for uses outlined in the fair use clause.
It's the image that is the original expression, which is why the photograph is copyrightable. That protection does not extend copyright to the subject matter, which is what I think you're trying to get at (though I've been apparently wrong in the past when making such judgments).
Obama's expressions in general are not copyrightable, though the capture of them in a photograph is. Obama could recreate the pose down to the detail and photographs could be taken without violating AP's copyright to it's photo, especially since this is a news photo of a public person.
On the post: By The AP's Own Logic, The AP Ripped Off Obama
Re: Re: Re: Re: Re: Re:
And you might have quoted the very next sentence (where your ellipses are) in the opinion as well:
Thus, the district court correctly identified the elements of artistic craft protected by Leigh's copyright as the selection of lighting, shading, timing, angle, and film. See Rogers v. Koons, 960 F.2d 301, 307 (2d Cir.1992).
And further, that the court held that there were similarities between the photographs in question that were protected and therefore issues of fact to be decided at trial:
All these creative elements are present in the AP photo of Obama, which support their claim of copyright to the photo.
On the post: By The AP's Own Logic, The AP Ripped Off Obama
Re: Re: Re: Re: It doesn't matter...
Nonsense. You've argued here and in other responses to this post that the photograph is not covered by copyright, which is out and out incorrect. Even Fairey is not arguing that since he's claiming his use was fair use.
The fact that Obama has his head tilted in a specific way, was gazing in a specific direction, had a specific expression on his face and was sitting against a specific backdrop are indeed not copyrightable. But given that the photographer had positioned himself at a specific angle, chosen specific a specific lens and camera settings, chose a specific focus, and chose a specific instant in time to capture Obama's particular expression are all elements of the creative nature of the photograph and why the photographic image is subject to copyright.
Yes, Fairey chose that photograph on which to base his work because of Obama's "look" but the important element that you seem to miss is that it is Obama's "look" as captured in a specific photographic image.
Fairey didn't just take elements of the "look," he took the specific copyrighted image and photoshopped it (and then registered the copyright to his version).
I've said here in the past that, in my opinion, Fairey's use was transformative enough to qualify as fair use. That was based on discussions here and my reading of various news items. Having actually read Fairey's complaint, and AP's answer and counter-claim, I'm not so sure that's true.
Fairey claims that he used a photo of Obama and George Clooney as his inspiration, and using only a small portion of that photo. AP presents pretty convincing evidence that this is not the case. The "cropped" close-up photo, the one that matches Fairey's image almost exactly, was a separate photo from the one with both Obama and Clooney. The part of the larger photo showing Obama has a number of differences from the separate photo of just Obama, including what can be seen of the flag in the background, lighting and focus.
Fairey also seems to be quite aggressive at going after people who proceed to apply the same level of "transformation" to his work. I wonder what he might think if I were to take his image, flip it, change the colors, and sell it on merchandise? Fairey's past actions would indicate that I'd be sued for infringement pretty quickly.
On the post: By The AP's Own Logic, The AP Ripped Off Obama
Re: Re:
The question is whether Fairey's use was fair.
On the post: By The AP's Own Logic, The AP Ripped Off Obama
Re: Re: It doesn't matter...
Questions about whether the photo was "special" because of the subject's expression have no bearing on whether it was copyrighted. This is not about Obama's "look," it's about a particular use of a copyrighted photograph and whether that use was transformative enough to qualify as fair use and not infringement.
On the post: Forget Clickthrough EULAs; Are There Really Walkby EULAs For NYC Parks?
Re: Re: Corrections...
On the post: Forget Clickthrough EULAs; Are There Really Walkby EULAs For NYC Parks?
Re: Corrections...
On the post: The Psychology Of Externalities: Only I Can Benefit
Re: Re: Re: Re: Missing the Forest...
Yes, I am saying just that. There is no "double standard." News--noteworthy events and the actions and statements of people--are not copyrightable and can be used by anyone as news. AP is creating content that reports that news, content that is subject to copyright, which places limits on how others can use that content. Note that it doesn't completely forbid other uses, especially transformative uses. So you are correct in stating that the relevant question is the amount of transformation.
Mike further states "And, yet, when it comes to the other direction, suddenly the AP says that no one else might benefit from externalities. Only it may benefit from externalities."
I believe this to be untrue and a misstatement of the situation. There are plenty of beneficial "externalities" that people gain from AP content, not the least of which is widespread and timely access to news, which many consumers don't pay for, at least not directly.
Are some "externalities" restricted? Yes. But nowhere near the extent Mike claims.
On the post: The Psychology Of Externalities: Only I Can Benefit
Re: Re: Missing the Forest...
Not at all. There are plenty of positive "externalities" that are not covered by copyright, including your enjoyment of singing a song and enjoying it.
The problem is that there really is no secure way (government granted or otherwise) to keep others 100% from benefiting from externalities. It is a pipe dream.
That's not the purpose of copyright and never has been. There are specific benefits that are protected, mostly involving controlling the use and exploitation of a protected property and most of those related to tangible expressions of the protected property. Copyright has never been and cannot be 100% protection or control.
On the post: The Psychology Of Externalities: Only I Can Benefit
Re: Re: Missing the Forest...
But I believe Mike is talking about the benefits of "externalities" outside of the application of copyright to make the point that positive "externalities" flow both ways and to everyone's benefit. However, I don't think you can completely divorce those benefits from copyright except in the very abstract (at least not in the current climate).
You are correct that there is no legal requirement to credit a source in a fair use claim. I just think it would make Fairley's case stronger.
On the post: The Psychology Of Externalities: Only I Can Benefit
Missing the Forest...
Hmmmm. That's quite a stretch and misstates the situation.
And, yet, when it comes to the other direction, suddenly the AP says that no one else might benefit from externalities based on content it created and to which it owns the rights. Only it may benefit from externalities freely given by newsmakers, which it transforms by its reporting.
There...that's better.
Both Mannie Garcia and the AP benefited greatly from Shepard Fairey's externalities. But because they feel he benefited too much, they want to sue him.
"Benefited greatly"? Again, a stretch. Fairely never identified the source of the photo or the photographer, so until much later, no one knew that it wasn't entirely Fairely's creation. How exactly have either AP or Garcia benefited "greatly"? They've gotten subsequent publicity, mostly negative in AP's case and it's hard to see how AP could benefit "greatly". Garcia might, on the other hand, get a benefit of publicity, but only after it was discovered that it was his photo that was the basis of the poster.
Fairley may have a very valid fair use claim here. But for those "externalities" created by the poster to benefit the photographer, wouldn't it have to be known that he was the photographer? In my opinion, Fairely's fair use claim would be stronger if he'd identified and credited the photographer (if not AP).
Once, again, Mike, you seem to be overstating the case to make your point. The "externalities" created by someone using my work in a new context only benefit me if my contribution is known.
On the post: More Copyright Oddities: Why Does Yoko Ono Get To Hold Copyright On Lennon Videos Others Purchased
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