As the Copyright Act actually says "a fair use... is not infringement." It's not a defense to infringement, it's not infringement.
Here, the action would be copyright infringement as an affirmative action the defense would be fair use.
Fair use is defined in Campbell v. Acuff-Rose Music, Inc. As this is a Supreme ct case I will defer to it's definition of implementing said fair use of section 107 of the Copyright Act. Yes it is a balancing test.
I feel no need going through each factor. Suffice to say, I believe the court could find the reproduction of a photograph exactly as it was taken would constitute use without license and not fair use in this context. A fundamental right of copyright is that of reproduction and use of a photograph without any trans-formative process I believe would fail the balancing test. Your "different purpose" is not a prong of the test but rather touches all of the prongs in different ways. If you are suggesting that the reproduction of a photo in a blog is somehow akin to using photos to make a book about the Greatful Dead, I believe those uses are quite dissimilar and the logic faulty. In addition, she is the image in the photo and has rights as to the use of her image and likeness.
If she believes the use of her image, photo and likeness are being used without permission or license("the creative elements") she has every right to request a DMCA take down. Obviously she did not think it was fair use.
The issue as to whether as a copyright holder, fair use must be taken into account before requesting a take down notice is the same as Lenz v. Universal Music Corp 2008 and I am quite familiar.
What I stated was her use of the notice may seem petty but was proper. You stated I needed to learn about copyright law.
Seeing that I find hers was a valid claim of infringement I feel that fair use was taken into account before asking for the take down. Perhaps hers was not the best case to use in your piece.
To suggest I stated their is no fair use in the use of photos is incorrect. To suggest transformation of the copyrighted work is not important is untrue. It is often a decisive factor in determining fair use. I have no doubt in my knowledge and application of copyright and trademark law I suggest familiarization with Acuff if you are not already as it is the Supreme Court case defining Fair Use.
Wow... To disagree with the statement a photograph is inherently copyrighted seems very odd.... Fair use is a defense to copyright infringement. Her claim, someone is using my copyrighted work on their website without permission or license, take it down (DMCA). Because photos are used without license on the web all the time makes it no less infringement. I won't quote the 4 factor Acuff test for fair use here but make no mistake photos are owned by the photographer. They are very difficult to prove fair use the because the transformative factor is always failed if using the photo exactly as shot.
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The argument is if the chorus and the melody are used, is that not "most" of the song? What does anyone remember about a song? The chorus words and melody
Re: Re: Let us not pretend Google is total innocent
My comment only went to Google through owning youtube, and applies to content on youtube. To filter through the entire search engine that is google, I do not believe feasible nor proper.
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just found out they might not have paid licenses to create the music! Well that definitely changes how I feel about it.....but copyright= welfare for artists, I still disagree.
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Moral indignation..hardly..they PAID licenses to sample the works used to make their music. It doesn't make it any less THEIRS and the double standard is they paid to make the music but you say the have no title to it and others can use it with impunity...please don't tell me artist make no money from copyright because publishing, licensing and royalties are based on it.....copyright= welfare system for artists? I find that statement utterly ridiculous.
"Storing" a riff is sampling. Sampling requires a license. They paid to use those melodies and riffs to use them in their music. What they created was the melody and words that are so memorable over the top of the samples they paid to use. "Girls" is remembered for the words and the melody they created. Again, they are respecting the wishes of a deceased group member and I can't find it hypocritical.
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Thanks for this! I disagree with her analysis with the second and third factors. The second factor: A work's copyright does not diminish over time, it is either enforceable or not. Either the copyright is in effect or the time has run and it is in public domain. A light is on or off so to speak. The court gives no deference how long a copyright has been used.
The third factor: If enough of the song has been used that it can be recognized (thus the legal action)and runs almost the same length then "enough" of the song has been used.
It's just law analysis so reasonable minds will differ.
If a guy puts in his will don't use our music for adverts then they should fight for it. I can't find them as bad guys here.
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Nice, however fair use is a defense.... no need to prove my work is wholly original...you must prove your infringement is fair use. To state that no one really creates anything new and thus has no right to be paid for it would doom every artist and places the creative with no value in society
If this judge was talking about youtube then amazingly he has some valid points. Youtube does many of the things he rails against and the initial business model was to keep copyrighted material up as long as possible while knowing it was infringing content. Stating there is nothing they can do to keep copyrighted material off the sight is simply not true. So by proxy Google really does this.
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For Goldiblox case: Acuff fair use nature of use....reproductive vs trans formative = iffy Goldie win! nature of work used... non profit/news v commercial= Goldie lose! amount of work used ...most of song?= Goldie lose? likely hood to stifle future commercial profitability/use of copyrighted work= Goldie win! of course this is not at trail....fair use always a crapshoot but do you want to spend 100k+ to see if it is fair use? Prob not
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So changing the chorus from "girls" to "girls" is enough modification? and you are going to use the name of my group in the title? Nice try .....God given right...please
Generally not. Contrast Weird Al record to this situation. One has some degree of artistic merit that is sold generating income the other is a commercial to encourage buying and itself is not sold ( a commercial)
Re: Re: BUT, you're still going with the wrong side:
I create music....So I have no say when my music being made into commercials to sell products? Without them paying me for it? So they can take it for free? That is fair use? I think not. Fair use is a definitely parody by an artist...Weird Al not a company taking my song to make a commercial. I find it interesting to act as if goldiblox makes parody records or something.....
I see nothing wrong with Chuck Close's behavior. Look, the guy comes up with a process to make art that he made famous. Some fan sets up a site using his NAME and he is not associated with it.I don't think it's unreasonable to ask the fan to stop. The fan can keep the site up just call it something else! So many times on here people imply that copyright is a hindrance. Only seems like people that are not artist feel they are entitled to use and reproduce something that someone else created...You do not. The amount of money Chuck Close is worth is utterly irrelevent
On the post: MPAA Gets Its Wish: Court Basically Says It Can File Bogus DMCA Takedowns Without Concern For Fair Use
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Here, the action would be copyright infringement as an affirmative action the defense would be fair use.
Fair use is defined in
Campbell v. Acuff-Rose Music, Inc. As this is a Supreme ct case I will defer to it's definition of implementing said fair use of section 107 of the Copyright Act. Yes it is a balancing test.
I feel no need going through each factor. Suffice to say, I believe the court could find the reproduction of a photograph exactly as it was taken would constitute use without license and not fair use in this context. A fundamental right of copyright is that of reproduction and use of a photograph without any trans-formative process I believe would fail the balancing test. Your "different purpose" is not a prong of the test but rather touches all of the prongs in different ways. If you are suggesting that the reproduction of a photo in a blog is somehow akin to using photos to make a book about the Greatful Dead, I believe those uses are quite dissimilar and the logic faulty. In addition, she is the image in the photo and has rights as to the use of her image and likeness.
If she believes the use of her image, photo and likeness are being used without permission or license("the creative elements") she has every right to request a DMCA take down. Obviously she did not think it was fair use.
The issue as to whether as a copyright holder, fair use must be taken into account before requesting a take down notice is the same as
Lenz v. Universal Music Corp 2008
and I am quite familiar.
What I stated was her use of the notice may seem petty but was proper. You stated I needed to learn about copyright law.
Seeing that I find hers was a valid claim of infringement I feel that fair use was taken into account before asking for the take down. Perhaps hers was not the best case to use in your piece.
To suggest I stated their is no fair use in the use of photos is incorrect. To suggest transformation of the copyrighted work is not important is untrue. It is often a decisive factor in determining fair use. I have no doubt in my knowledge and application of copyright and trademark law I suggest familiarization with Acuff if you are not already as it is the Supreme Court case defining Fair Use.
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On the post: Beastie Boys Not Letting Goldieblox Off; Launch Massive Countersuit
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On the post: Mississippi Attorney General Jim Hood Thinks Google Is To Blame For Infringement On The Web
Re: Re: Let us not pretend Google is total innocent
On the post: Beastie Boys Not Letting Goldieblox Off; Launch Massive Countersuit
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On the post: Beastie Boys Not Letting Goldieblox Off; Launch Massive Countersuit
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On the post: Beastie Boys Not Letting Goldieblox Off; Launch Massive Countersuit
Re: Re: Re: Re: A little conflicted
On the post: Beastie Boys Not Letting Goldieblox Off; Launch Massive Countersuit
Re: Re: Re: Re: Re: Re: BUT, you're still going with the wrong side:
I disagree with her analysis with the second and third factors.
The second factor: A work's copyright does not diminish over time, it is either enforceable or not. Either the copyright is in effect or the time has run and it is in public domain. A light is on or off so to speak. The court gives no deference how long a copyright has been used.
The third factor: If enough of the song has been used that it can be recognized (thus the legal action)and runs almost the same length then "enough" of the song has been used.
It's just law analysis so reasonable minds will differ.
If a guy puts in his will don't use our music for adverts then they should fight for it. I can't find them as bad guys here.
On the post: Beastie Boys Not Letting Goldieblox Off; Launch Massive Countersuit
Re: Re: Re: Re: BUT, you're still going with the wrong side:
On the post: Mississippi Attorney General Jim Hood Thinks Google Is To Blame For Infringement On The Web
Let us not pretend Google is total innocent
On the post: Beastie Boys Not Letting Goldieblox Off; Launch Massive Countersuit
Re: Re: Re: Re: BUT, you're still going with the wrong side:
case: Acuff fair use
nature of use....reproductive vs trans formative = iffy Goldie win!
nature of work used... non profit/news v commercial= Goldie lose!
amount of work used ...most of song?= Goldie lose?
likely hood to stifle future commercial profitability/use of copyrighted work= Goldie win!
of course this is not at trail....fair use always a crapshoot but do you want to spend 100k+ to see if it is fair use? Prob not
On the post: MPAA Gets Its Wish: Court Basically Says It Can File Bogus DMCA Takedowns Without Concern For Fair Use
On the post: Beastie Boys Not Letting Goldieblox Off; Launch Massive Countersuit
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On the post: Beastie Boys Not Letting Goldieblox Off; Launch Massive Countersuit
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On the post: Beastie Boys Not Letting Goldieblox Off; Launch Massive Countersuit
Re: Re: BUT, you're still going with the wrong side:
On the post: Beastie Boys Not Letting Goldieblox Off; Launch Massive Countersuit
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On the post: Surprise: MPAA Told It Can't Use Terms 'Piracy,' 'Theft' Or 'Stealing' During Hotfile Trial
On the post: Chuck Close Succeeds In Stifling A Creative Homage... But Only For Another 100 Years Or So!
Chuck Close
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