Another Fair Use Debacle: Photographer Settles Bogus Copyright Threat From Artist

from the lame dept

Last year, we wrote about the absolutely ridiculous situation in which an artist, Jack Mackie, sued a photographer, Mike Hipple, for copyright infringement. The details of the case were pretty crazy. Mackie had created a piece of public artwork with public funds, putting instructional dance steps into the pavement on a sidewalk in Seattle. Hipple did not photograph the whole thing. Instead, he took a photograph of someone standing in a couple of the footsteps, and included a few others around it. It's hard to see how anyone could say this was not fair use. It's transformative, and it most certainly would not hurt the market for the original artwork. The issue was that Hipple put the image up on a stock photo site for sale, and Mackie apparently believes copyright covers a hell of a lot more than it does. The other crazy thing: after receiving a takedown letter, the image came down... but Mackie still sued.

Hipple was planning to fight the lawsuit, but just like the Andy Baio/Jay Maisel situation, it appears that Hipple realized it was better to settle than to risk huge statutory damages. The statement about the settlement seems pretty clearly done with the approval of Mackie's lawyers, and makes you wonder what else was going on behind the scenes. Tragically, unlike Baio, Hipple appears not to have received permission to relay the details of the settlement. That's really too bad, because this is the kind of information people need to know about.

Even worse, Mackie response to the settlement has been nothing short of obnoxious, and includes some blatantly false statements about copyright law:
Artists hold copyright to their work, period. The Federal Law that states this was well vetted and argued before becoming law. This law comes with strict standards that must be met to gain copyright. I met all of these standards. My copyright is secure meaning it comes with protections and it comes with controls. Artists are the only people who get to say how images of their work will be used.
That's simply not true. Artists are not the only people who get to say how images of their work will be used. That's the entire point of fair use, which it appears Mackie is denying. This is another reason why these kinds of settlements, while understandable, are so tragic. They reinforce these kinds of ignorant claims from copyright holders who wish to deny fair use. Mackie continues:
I do not want my work to be part of a coffee company's ad campaign. I do not want my work to be part of a sales pitch for condos on Broadway. I do not want my work associated with banksters... all of which I have had to deal with. I want my work to be seen as it was intended and in the setting for which it was created - Seattle's sidewalk on Capitol Hill, Broadway. I do not want it used by whoever might think it a cool idea to appropriate the image for their current fancy.
What you want and what the law allows may be two totally different things. Look, I don't want to have to spend time debunking your cluelessness on copyright law. But that doesn't mean the law allows me to sue you over it. Furthermore, copyright law has nothing to do with "associations." It doesn't have anything to do with whether or not you like someone using your work in a certain manner. If it's fair use, they absolutely can use the work in that way. Your own desires have nothing to do with it.
It was with glee that I took the news of Tom Petty sending cease and desist orders to Michelle Bachmann for appropriating his work without his permission.
With "glee" and some additional total ignorance about the nature of copyright law in this country... As we noted recently, Tom Petty has no legal leg to stand on here. That's because his music is licensed out for public performance with ASCAP or BMI, and if the venues where Bachmann is playing these tunes has their ASCAP/BMI licenses in order (as they almost certainly do), he's got nothing to stand on. That's the way US copyright works when it comes to music performances on such licensed music. But, apparently, Mackie has no interest in actually understanding how copyright law works, but prefers his mythical version in which it's some sort of "moral rights" that are not present in US copyright law, no matter how much Mackie dances around and pretends they are.

Between the Andy Baio situation and the Mike Hipple situation, it would be great if people started to recognize what a horrible setup copyright law's statutory damages provisions are. They allow artists like Mackie and Maisel to shake down other artists over work that those other artists believe is fair use. The risk of a statutory damages award is simply too high, and so these artists are forced to submit, to pay, and to stifle artwork. It seems like statutory damages provisions do the exact opposite of the stated intentions of copyright law to promote the progress, doesn't it?


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    Hulser (profile), Jul 6th, 2011 @ 8:30am

    Travesty

    Tragically, unlike Baio, Hipple appears not to have received permission to relay the details of the settlement. That's really too bad, because this is the kind of information people need to know about.

    Settlements like this, where the details are kept hidden from the public, are a big part of the problem. Settlements act similar to case law in that they affect the legal process, but aren't part of the statutes. At least with case law, you actually have to get to a judgement. But settlements, especially ones where some participants aren't allowed to tell their side of the story, are far less subject to the control of the legal process. You end up with one side spouting off blatantly false statements and the other side being gagged. And worse, the history of these settlements just adds weight to future threats of bringing a lawsuit. This is not justice.

    In my opinion, if you bring a lawsuit, then you should be forced to release the details of any settlement. Make it illegal to prevent any party in a lawsuit from speaking about the settlement.

    This may not stop everyone from intimidating others with the threat of a lawsuit, but at least if they know that they'll have to reveal the sordid details of the settlement, it would make people think twice about actually bringing the case to court.

    In this particular case, I think that there would have been a far greater chance that Hipple would have said, "Fine. Go ahead and sue me. And when we eventually settle, I'll be able to explain how the whole situation is a travesty of justice and you won't be able to do a thing about it."

     

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    Hulser (profile), Jul 6th, 2011 @ 8:32am

    Flame bait

    "Another Fair Use Debacle: Photographer Settles Bogus Copyright Threat From Artist"

    Mike, are you implying that photographers aren't artists?

     

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      smacdav, Jul 6th, 2011 @ 9:35am

      Re: Flame bait

      No, he isn't. This sentence makes that pretty clear:

      "They allow artists like Mackie and Maisel to shake down other artists over work that those other artists believe is fair use."

      The "other artists" in this case are clearly the photographers.

       

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        Hulser (profile), Jul 6th, 2011 @ 9:53am

        Re: Re: Flame bait

        Another Fair Use Debacle: Photographer Settles Bogus Copyright Threat From Artist

        I was hoping that the title of my comment would convey my sarcasm.

         

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      Aaron Martin-Colby (profile), Jul 6th, 2011 @ 9:40am

      Re: Flame bait

      BLLLAAAAARRRRRRGGGGHHHHH!!!! *Breathes fire at you*

       

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      MAC, Jul 6th, 2011 @ 2:53pm

      Re: Flame bait

      What does the word photography mean in latin?

      photo = light
      graph = drawing

      So it literally means:
      lightdrawing
      I don't know about you but by my best judgement drawings are made by predominately artists and photography is an art.
      I should know, I am both and artist and a photographer.

       

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    Anonymous Coward, Jul 6th, 2011 @ 8:32am

    Fair use doesn't include resale rights. Trying to resell the image on a stock photo site without a release for the main subject of the photo is risky. Legally, he is very likely to lose.

    Fair use doesn't mean "any use".

     

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      Marcus Carab (profile), Jul 6th, 2011 @ 8:45am

      Re:

      Fair use doesn't include resale rights

      That's not how fair use works. Commercial intent doesn't automatically eliminate it. While he might lose in court, I wouldn't say it's "very likely". Commercial use can still be fair.

       

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        Anonymous Coward, Jul 6th, 2011 @ 9:45am

        Re: Re:

        There are always exceptional cases. In selling the image as a stock photo, there is great potential that the image is used to promote products or other.

        You have learned well from Mike, but exceptional cases aren't the rules, they are exceptions. You cannot use them to define everything else.

         

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          Hulser (profile), Jul 6th, 2011 @ 10:03am

          Re: Re: Re:

          In selling the image as a stock photo, there is great potential that the image is used to promote products or other.

          And how is this relevant to the question of whether something is fair use? I think that the issue of political or commercial associations has more to do with the artists perceived rights under copyright rather than the actual law.

          The issue of fair use in this case, I believe, has more to do with the transformative nature of the art, rather than its commercial use or potential economic impact on the original artwork. And that's not even mentioning that the art is a public work. I don't know what the original agreement was, but if anyone should have the right to sue for infringement, it's the state who commissioned the art, not the artist.

           

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          Marcus Carab (profile), Jul 6th, 2011 @ 10:03am

          Re: Re: Re:

          I didn't say it "defined everything". You tried to claim fair use doesn't cover commercial endeavours, so I showed you two prominent examples demonstrating that indeed it can.

          So, care to admit that you were wrong when you said "fair use doesn't include resale rights"? Because you were, and the examples I gave prove that.

          Now, I'm confused: what does the fact that the image will be "used to promote products or other" have to do with it?

           

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            Anonymous Coward, Jul 6th, 2011 @ 11:03am

            Re: Re: Re: Re:

            Marcus, in general, fair use does not cover commercial use. There are exceptional cases, but in general, fair use and commercial use are not found together.

            Commercial rights are an issue. In the same manner that people have control over the use of their personal image, there is also rights regarding locations and other things of that nature. I could not take an image of Mike Masnick, at a public event (say a speaking engagement with the "you may be photographed" disclaimer) and then sell that image to a company that is selling AIDS medications or for use in a pro-copyright marketing campaign.

            Locations and other works also have certain implied commercial rights. I am not a lawyer, I won't pretend to be one. But the general rules in the world of photography is you need a release for almost anything that isn't natural, if you intend to use it for commercial purposes.

            A stock photo could be purchased and used on a site discussing dangerous public art work, example, which would imply that this is a dangerous installation. It could be used (the steps) as part of a path towards gay marriage or for promotion of satanism, drug use, or even in a political campaign. None of which may be supported by the artist, but could perhaps imply some support.

            Commercial use is an incredibly complex field that neither your nor I are entirely qualified to discuss. Unless of course you would claim to be an expert in that field as well.

             

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              Marcus Carab (profile), Jul 6th, 2011 @ 11:08am

              Re: Re: Re: Re: Re:

              So wait - you come in here talking about commercial use, and now you launch into a big spiel about commercial use, and then you say neither of us are qualified to discuss it?

              So why did you bring it up?

              You're saying that neither of us is qualified to analyze this, so we should just default to assuming its a violation of copyright. Well, that's exactly the problem with copyright: it creates chilling effects, because people are scared to do something - even when they may well have a fair use defense - since the law is so complex and losing is so costly.

              So no, sorry, I will not simply back down and assume it's infringing just because I'm not a lawyer. I am also not claiming to know for sure that it's not infringing. You are the one pretending to be an expert, saying that it's definitely not fair use out of one side of your mouth, but confessing that you are not qualified to make that determination out of the other.

              So yeah, I guess you have basically admitted that your original comment was bullshit and you didn't actually know what you were talking about. Good on you for finally acknowledging a mistake.

               

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                Anonymous Coward, Jul 6th, 2011 @ 11:13am

                Re: Re: Re: Re: Re: Re:

                You said: "So wait - you come in here talking about commercial use, and now you launch into a big spiel about commercial use, and then you say neither of us are qualified to discuss it?"

                I said: You are a prick, as always.

                I am giving you my understanding. I am not giving you a definitive statement. I am saying that the example you gave of fair use in commercial is extremely narrow, and not at all related to this case.

                If you want to be a prick, keep going. But geez, come on, admit when you don't have a clue already.

                 

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                  Marcus Carab (profile), Jul 6th, 2011 @ 11:23am

                  Re: Re: Re: Re: Re: Re: Re:

                  Heh. Your very first statement was "Fair use doesn't include resale rights."

                  Sounds pretty definitive to me. And even if it wasn't intended that way - how come you're allowed to give your understanding, but when I give mine I'm a prick?

                  You started the conversation with a clearly definitive statement, and all I did was show a counterexample to prove that the statement wasn't definitive.

                  You play some pretty funny games. It would bug me if I didn't know that absolutely anyone reading this can see that we're both pricks, and I'm the smart one.

                   

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                    Anonymous Coward, Jul 6th, 2011 @ 11:31am

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    Exactly. Fair use does not include resale rights. Including an image in a book, which is sold as part of a limited rights (you can't use the content of the book to resell other things) is very different from selling a stock photo.

                    It is pretty clear and basic, you just seem to miss the point every time. Either that, or you are just being a prick. The former would mean you are sort of stupid, and the latter would mean you are just a prick.

                     

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                      Marcus Carab (profile), Jul 6th, 2011 @ 11:35am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      Two minutes ago it was "incredibly complex" and neither of us were qualified to talk about it. Now all of a sudden it's "pretty clear and basic"

                      Wow. You are a real piece of work.

                       

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                        Anonymous Coward, Jul 6th, 2011 @ 11:37am

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        argh Marcus, do you ever give up?

                        The differences between your example (tour posters used in a book) versus this case (stock photography sale) are pretty clear and basic.

                        The legal implication are incredibly complex, unlike your thought processes.

                        Did you just wake up stupid today, or did you have to take a pill to get like this? PRICK!

                         

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                          Marcus Carab (profile), Jul 6th, 2011 @ 11:39am

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                          Actually yes, I do give up. I give up right now. Talking to you is not worth my time. I would rather debate this with a gerbil.

                          To the rest of the community: If I am actually being stupid here and I don't realize it, somebody else please inform me. Otherwise I will go with my assumption that I am being barked at by a raving lunatic, and just ignore him.

                           

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                            Anonymous Coward, Jul 6th, 2011 @ 11:43am

                            Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                            Marcus, when you can't spot the idiot in the room, he is probably you.

                            You seem unable to have a reasonable discussion. You appear to only read every other word or so, and you attempt to draw conclusions for the other person that are not being drawn at all. You attempt to link statements together that are not related. Basically, you are a prick.

                            Don't you have some freelance living off the copyright world to do, anyway?

                             

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                              Marcus Carab (profile), Jul 6th, 2011 @ 11:47am

                              Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                              Marcus, when you can't spot the idiot in the room...

                              With you around, that's never been an issue.

                               

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                                Anonymous Coward, Jul 6th, 2011 @ 11:51am

                                Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                Oh tee-hee. How original. Can't even come up with your own poke, you ahve to remix mine? You are rather unoriginal.

                                So, how much of your income comes from working for companies that use and support copryight, anyway? If we are going to talk crediblity here, perhaps you want to explain why you hate copyright but profit from it daily.

                                 

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                                  Marcus Carab (profile), Jul 6th, 2011 @ 11:54am

                                  Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                  I've already responded to your issues with my career, and you ignored me completely. Please go away now, you are making yourself look stupider and stupider.

                                   

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                                    Anonymous Coward, Jul 6th, 2011 @ 11:59am

                                    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                    Actually, in your usual method, you didn't answer the question.

                                    It's something else I noticed, you rarely put forth your own ideas, you just pick, pick, pick at everyone else's. Again, I guess it is the remix artist in you, feeling that just putting your slight spin on other people's words is enough to call it your own.

                                    Why not make a nice clear declaration of what you really do, so that the "freetard" masses here can understand that one of their leading spokesmen is actually living at the copyright teat.

                                    Oh, and for the quote, from where I sit it is just a common phrase, something that has been used a million times over. The poker use of it is very modern, but I have heard it used long before poker was at it's current level. I know, it may amaze your barely out of school mind, but there was actually history before you were born.

                                     

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                                      Marcus Carab (profile), Jul 6th, 2011 @ 12:12pm

                                      Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                      So using a common phrase that has been used a million times is totally cool when you do it - but when I respond to it I'm being unoriginal? Double standard much?

                                      And uh, I totally answered your question about my work and why I don't feel copyright has anything to do with it. Sorry that you're not satisfied with the answer. Maybe you should come back with a name and an identity, and we can interrogate you about YOUR career? Until then, I don't think I'll be answering any more questions about how I make my living to someone who is so cowardly he will only comment anonymously.

                                       

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                                        Anonymous Coward, Jul 6th, 2011 @ 12:34pm

                                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                        Marcus, I don't put myself out there as a grand crusader against copyright, so who I am really doesn't matter. You on the other hand are a contributor here, and really I find it incredibly funny that your income depends on copyrighted publications. It seems almost classic. Anonymous posting by me doesn't mean anything one way or the other, it's an option presented by the site that I choose to take, nothing more.

                                        As for the phrase, once again, you are skipping every other word and trying to pin something on that isn't true. We are two people chatting here. Using a phrase (one that you think applies in a single place, and I know does not) that is old and in common use has no implications on copyright. I am not charging you to read it, I am not reselling it. I am not using it as part of a commercial venture, I am not claiming it as my own.

                                        I could go on, safe to say only that your prickish attiude shows through so clearly in this case, and shows you to be bitter, petty, and more than a little ignorant. You are so busy trying to pick on me as a poster that you don't even have the time to come up with your own arguments.

                                        Care to remix that post and look like more of a prick?

                                         

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                                          Marcus Carab (profile), Jul 6th, 2011 @ 12:39pm

                                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                          Care to remix that post and look like more of a prick?

                                          Nope. Like I said: not answering any more questions from you until you grow some balls.

                                           

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                                            Anonymous Coward, Jul 6th, 2011 @ 12:40pm

                                            Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                            What is truly classic is that in not answering, you answered.

                                            You truly are a weak, weak little man.

                                             

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                                              Marcus Carab (profile), Jul 6th, 2011 @ 12:42pm

                                              Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                              Balls. Come back when you have some.

                                               

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                                                Anonymous Coward, Jul 6th, 2011 @ 1:08pm

                                                Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                                I got. I also have my own opinion and my own ideas. I don't remix Mike's ideas and claim them as my own.

                                                So little man, when are you coming out of the copyright closet?

                                                 

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                                                  Marcus Carab (profile), Jul 6th, 2011 @ 1:14pm

                                                  Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                                  Sorry, I couldn't hear you. All the words got sucked into that vacuum where your balls should be.

                                                  (Seriously dude, I can do this all day. You're going to call me a prick no matter what I say, so I might as well be one right?)

                                                   

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                                                    Anonymous Coward, Jul 6th, 2011 @ 2:02pm

                                                    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                                    hands over your virtual ears yelling "LALALALAALALALA" at the top of your lungs. How very childish of you. Congrats Marcus, you have officially self destructed online.

                                                     

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                                                      Marcus Carab (profile), Jul 6th, 2011 @ 4:10pm

                                                      Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                                      Okay, lets dissect your response here line by line.

                                                      I lost my balls in an unfortunate accident involving a Fleshlight and a George Forman Grill

                                                      Ouch! I'm actually starting to feel some sympathy for you...

                                                      Life as a eunuch is tough. My girlfriend left me for a DJ who lives next door, and I can hear him "remixing" her every night.

                                                      That really sucks man. I'm sorry I was making fun of you for the no-balls thing.

                                                      Please understand, this is the real reason I comment anonymously. If the world finds out I am a man with no balls, I will lose my job as a Rockette.

                                                      Ah, yeah, I guess they probably frown on that.

                                                      You should have seen them after the accident. It was gruesome. The left one was...

                                                      Er, the comment kind of strays into TMI territory here... I'm going to skip the next bit.

                                                      ...seventeen staples! So if I get kind of cranky sometimes, it's mostly because of the itching. I'm sorry about that.

                                                      You are completely forgiven, dude. Frankly I'm impressed that you manage to get out of bed every morning.

                                                       

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                                                        Anonymous Coward, Jul 6th, 2011 @ 8:48pm

                                                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                                        All I can say is that you are a petty, petty little man. One day you will grow up and understand how stupid you have been. Until then, we will continue to be subjected to your prickish ways and stupid posts.

                                                         

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                                                          Jay (profile), Jul 7th, 2011 @ 11:17pm

                                                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                                          When you find your balls, let us know.

                                                           

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                                  Marcus Carab (profile), Jul 6th, 2011 @ 11:55am

                                  Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                  And, uh, by the way, the joke you used is an old classic poker joke. You "remixed" it yourself by changing the traditional "sucker" to "idiot"

                                   

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                                  Any Mouse (profile), Jul 6th, 2011 @ 3:23pm

                                  Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                  You're being disingenuous, and obviously you are only a troll. Marcus has answered your questions in the past. That you do not accept them is a problem on your end, not his, not our's. Tell us, exactly, how he is to continue the work he does and NOT use copyright? Since, you know, it's FORCED on him. He doesn't enforce his copyrights, either. Thus, it seems the only prick in this discussion (?!) is you.

                                   

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                                    Anonymous Coward, Jul 7th, 2011 @ 9:19am

                                    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                    Actually, Marcus tends to shy away from answering the questions directly. In fact, for all of his online high profile activities, he doesn't really say much about himself. I will say that his music is pretty horrid, but that is another issue.

                                    What Marcus doesn't address is that his income comes mostly from dealing with the copyright world. The value of his graphic design and such would plummet if everyone and anyone could just take from every other site and layout done, and just use it like that. His value in the market is created and supported only by the existance of copyright, the thing he hates the most.

                                    I have at least a little more respect for Nina Paley, who rails against and tries not to work with those she despises. Marcus, well, he makes his living off of them (including the wonderful dead tree newspaper industry... god love them!).

                                     

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                            Anonymous Coward, Jul 6th, 2011 @ 12:55pm

                            Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                            Two points.

                            First, you are not being stupid. The other AC is, or at least is writing unclearly.

                            Second, I don't believe the Techdirt community is generally well qualified to accurately identify when someone is being stupid.

                             

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                              Marcus Carab (profile), Jul 6th, 2011 @ 12:58pm

                              Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                              First, you are not being stupid. The other AC is, or at least is writing unclearly.

                              Actually to be specific, I think he's being disingenuous.

                              Second, I don't believe the Techdirt community is generally well qualified to accurately identify when someone is being stupid.

                              Not sure I agree, but even if I did, I'd still trust them over this idiot :)

                               

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                            Prisoner 201, Jul 6th, 2011 @ 2:22pm

                            Re: Re: Re: (repeating of course)

                            I'm with you on this one. What that AC guy is sprouting makes sense only if he's getting paid to argue with you regardless of facts.

                             

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                            BeeAitch (profile), Jul 6th, 2011 @ 4:45pm

                            Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                            Marcus, I thought you were debating with a gerbil!

                            It's pretty smart for a gerbil (apparently it has learned to type, but not to reason).

                            Frankly I'm amazed you're still even trying to argue anymore. I would have quit when you totally pwned him and he wouldn't admit he was wrong (though he obviously was).

                             

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                            Jay (profile), Jul 6th, 2011 @ 7:41pm

                            Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                            " If I am actually being stupid here and I don't realize it, somebody else please inform me. Otherwise I will go with my assumption that I am being barked at by a raving lunatic, and just ignore him."

                            Nah, looks like you kicked him where his balls used to be.

                             

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                            nasch (profile), Jul 6th, 2011 @ 8:16pm

                            Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                            To the rest of the community: If I am actually being stupid here and I don't realize it, somebody else please inform me.

                            Yes, you're being stupid. You correctly concluded talking to him is not worth your time, but kept doing it. ;-)

                             

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                      Anonymous Coward, Jul 6th, 2011 @ 12:53pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      I'm pretty sure I'm not stupid, have a decent understanding of fair use, and I can't understand what you're trying to say here.

                       

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                        Anonymous Coward, Jul 6th, 2011 @ 5:51pm

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        Let me assure you, you are stupid, and a stalker, and a coward, and a troll, and not even a good one at that.

                         

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                          Marcus Carab (profile), Jul 6th, 2011 @ 6:36pm

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                          I think you're talking to the wrong guy here. This particular AC is not really a troll at all (and in fact he is helping me defend against the true troll with the very comment you replied to)

                           

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                  techflaws.org (profile), Jul 6th, 2011 @ 10:05pm

                  Re: Re: Re: Re: Re: Re: Re:

                  I said: You are a prick, as always.

                  That's rich coming from you.

                   

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                Anonymous Coward, Jul 6th, 2011 @ 11:23am

                Re: Re: Re: Re: Re: Re:

                Nice work.... but you know... as entertaining as it was watching you hand that troll his ass, it was probably a wasted effort. He knew he was caught when he typed that wall of text response to your first whoopin... still fun to watch tho...

                 

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                  Marcus Carab (profile), Jul 6th, 2011 @ 11:27am

                  Re: Re: Re: Re: Re: Re: Re:

                  You are entirely right. I really shouldn't bother with him. But I mean, just look at the shit the guy spews! It gets my goat big-time. The smart thing to do would definitely be to ignore him, but I suppose I do enjoy making him look foolish on a daily basis. I know it's effective because he's made me his enemy - he is always addressing me by name, bringing me up in other arguments with other people, and spending a lot of time googling me so he can try to mock my career and my hobbies and such. Turns out having a nemesis is fun when they are incompetent and worthless!

                   

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                    Anonymous Coward, Jul 6th, 2011 @ 12:13pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    "Oh Marcus, if only you were 100% original then I might listen to you but sadly I can only listen to 100% originality. A dirty re-mixer like yourself wouldn't understand the complexities of 100% original thinking."

                    In my own defense, I only believe in 110% originality, so that person is less original than I am.

                     

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                      Marcus Carab (profile), Jul 6th, 2011 @ 12:19pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      The confusion here is that he doesn't use the traditional definition of originality. To him, the word means "whatever I'm saying" - even when he's using cliched age-old jokes. The word "remix" means "wrong things Marcus says"

                      Slowly but surely, I'm translating his language... and it's a very self-serving tongue.

                       

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                        Prisoner 201, Jul 6th, 2011 @ 2:25pm

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        "and it's a very self-serving tongue."

                        So, simply put (yet incredibly complex in practice), he's licking his own arse?

                        Totally makes sense.

                         

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              Hulser (profile), Jul 6th, 2011 @ 11:21am

              Re: Re: Re: Re: Re:

              But the general rules in the world of photography is you need a release for almost anything that isn't natural, if you intend to use it for commercial purposes.

              You're missing the point. It may very well be that the "general rules" say one thing, but the actual law and, more importantly, the purpose of copyright say something different. For example, it may be a general rule that if you take a picture of a public work of art, you should get the permission of the original artist. But that's not because you're legally required to do so. It's because the original purpose of copyright has been corrupted and extended to ridiculous extremes. It's because, in our current envorinment, it's just easier to give into those who think that they control every aspect of their artwork.

               

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              David Liu (profile), Jul 6th, 2011 @ 12:27pm

              Re: Re: Re: Re: Re:

              "I could not take an image of Mike Masnick, at a public event (say a speaking engagement with the "you may be photographed" disclaimer) and then sell that image to a company that is selling AIDS medications or for use in a pro-copyright marketing campaign."

              I don't see why you wouldn't be able to do this at all. The company would probably sued for representing him as someone he's not, but that wouldn't be a copyright issue at all.

               

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                Anonymous Coward, Jul 6th, 2011 @ 1:00pm

                Re: Re: Re: Re: Re: Re:

                "I don't see why you wouldn't be able to do this at all. The company would probably sued for representing him as someone he's not"

                I think you just answered your own question, right? Anyway, ceratinly a potential right of publicity claim there.

                 

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              Mike Masnick (profile), Jul 6th, 2011 @ 1:00pm

              Re: Re: Re: Re: Re:

              Commercial rights are an issue. In the same manner that people have control over the use of their personal image, there is also rights regarding locations and other things of that nature. I could not take an image of Mike Masnick, at a public event (say a speaking engagement with the "you may be photographed" disclaimer) and then sell that image to a company that is selling AIDS medications or for use in a pro-copyright marketing campaign.

              Not to get involved in the rest of the debate, but just wanted to point out that the above scenario has nothing to do with copyrights, and its dishonest to pretend that it has anything to do with the fair use determination, rather than a privacy rights/endorsement issue.

              Locations and other works also have certain implied commercial rights. I am not a lawyer, I won't pretend to be one. But the general rules in the world of photography is you need a release for almost anything that isn't natural, if you intend to use it for commercial purposes.

              Again, that's not a copyright issue. Don't conflate these issues.

              Marcus is right, and you're woefully wrong, concerning commercial use and fair use.

               

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                Dark Helmet (profile), Jul 6th, 2011 @ 1:05pm

                Re: Re: Re: Re: Re: Re:

                "Not to get involved in the rest of the debate"

                Well, you don't have to, but I will. The irritating part of all this is that I KNOW this is the same cat having a self-spooge fest about "excessive free speech", yet here he is, woefully wrong as you put it, all the while having the interwebz stones to boastfully back up his wrong position while shouting "prick" over and over again.

                Look, I'm all for namecalling, but before this jackwad gets those floppy beef-curtains between his legs in a twist, perhaps he should come up with a sustainable position to advocate....

                 

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                  Anonymous Coward, Jul 6th, 2011 @ 2:17pm

                  Re: Re: Re: Re: Re: Re: Re:

                  "My balls are 100% original, unlike you freetards who only have 90% original balls. The other 10%? It's your penis!"

                   

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                Anonymous Coward, Jul 6th, 2011 @ 2:14pm

                Re: Re: Re: Re: Re: Re:

                Mike, "you are wrong" without any additional information really doesn't bring anything to the table.

                Are you suggesting that copyright holders have no recourse to stop their works from appearing in commercial uses?

                Please, can you enlighten us a bit?

                Also, since you can't scroll down that far, might you comment on:

                http://www.jeremynicholl.com/blog/2011/07/04/how-stockbroker-andrew-peterson-aka-thomas-hawk- smeared-photographer-jay-maisel-in-andy-baio-copyright-row

                ?

                 

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                  Prisoner 201, Jul 6th, 2011 @ 2:30pm

                  Re: Re: Re: Re: Re: Re: Re:

                  Your are good. I dont think I know anyone else that could miss the point of a post so totally. And on purpose too.

                  Its like the tripple backflip with spin of double-think.

                  *golfclap*

                   

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                  BeeAitch (profile), Jul 6th, 2011 @ 4:51pm

                  Re: Re: Re: Re: Re: Re: Re:

                  I'll comment on it. It has nothing to do with theis article and you only linked it to further obfuscate the original argument, WHERE YOU HAD YOUR ASS HANDED TO YOU.

                  Oh, and YOU ARE A PRICK!

                   

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                  Mike Masnick (profile), Jul 6th, 2011 @ 4:58pm

                  Re: Re: Re: Re: Re: Re: Re:

                  Mike, "you are wrong" without any additional information really doesn't bring anything to the table.


                  You claimed that commercial use is not fair use. That's wrong. In fact, you and Marcus had this debate in the past and he pointed you to evidence you were wrong. Why you continue to make this claim is beyond me, other than you don't mind looking foolish.

                  Are you suggesting that copyright holders have no recourse to stop their works from appearing in commercial uses?


                  Wow. Logic error. No, I did not say that at all. This is similar to your logic error on the ICE/.com thread. You claimed that commercial use was not fair use. That's false. That doesn't mean *ALL* commercial use is fair use. But it certainly means that commercial use can be fair use. That's all I'm saying. Commercial use can be fair use.

                  And your points about using an image to endorse a cause has nothing to do with copyright. You're wrong there, which was why I jumped into this thread. Amusingly, you didn't even respond to that point. Why? I don't know.

                  Also, since you can't scroll down that far, might you comment on:

                  http://www.jeremynicholl.com/blog/2011/07/04/how-stockbroker-andrew-peterson-aka-thomas-hawk- smeared-photographer-jay-maisel-in-andy-baio-copyright-row


                  Why would I want to comment on that?

                   

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                    Anonymous Coward, Jul 6th, 2011 @ 8:54pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    There are exceptional cases where commercial use can be fair use, but never in the context that we see here. The only example presented revolved around images used inside a book, essentially as part of the writing content. It was not a book made up only of images, example.

                    Would you not agree that, in general, and in almost all circumstances, commercial use means there is no fair use? There may be exceptional circumstances that are fair use, but even they are on a rare, case by case basis.

                    So yes, commercial use can be fair use, but it is about as rare as hen's teeth :)

                    As for "why would you want to comment on it", I just think it is a pretty good indication that the story you ran the other day might have been slightly one sided, that's all. What the "freetards" did to that guy is absolutely horrible, all based on misunderstandings.

                     

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                      Mike Masnick (profile), Jul 7th, 2011 @ 3:58am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      There are exceptional cases where commercial use can be fair use, but never in the context that we see here. The only example presented revolved around images used inside a book, essentially as part of the writing content. It was not a book made up only of images, example.

                      Not exceptional at all. The case law on fair use is littered with examples of commercial use. Newspapers and news programs (radio and TV) regularly rely on fair use, and they're commercial enterprises. To claim that it's an exception to typical fair use concepts is simply wrong.

                      As for "why would you want to comment on it", I just think it is a pretty good indication that the story you ran the other day might have been slightly one sided, that's all. What the "freetards" did to that guy is absolutely horrible, all based on misunderstandings

                      Odd. The story I ran the other day had nothing to do with Thomas Hawks' coverage of it. I wrote it entirely based on Andy Baio, and I noted that Baio clearly asked people to stop complaining to Maisel directly.

                      And, what "misunderstanding" was that story based on?

                      Furthermore, looking at that post, it's hilariously wrong. The fact that Thomas Hawk is a pseudonym is not news. It's well known by pretty much everyone who knows him. The idea that his views on this subject matter are based on Hawk's experience with that one museum is wrong. Hawk has been covering these issues for years, long before his run in with that museum.

                      Finally, I don't believe Hawk incited anyone to attack Maisel, but that post directly suggests that people try to get Hawk fired. And you say the attacks on Maisel were uncalled for?

                       

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                        Anonymous Coward, Jul 7th, 2011 @ 7:02am

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        You said: "Not exceptional at all. The case law on fair use is littered with examples of commercial use. Newspapers and news programs (radio and TV) regularly rely on fair use, and they're commercial enterprises. To claim that it's an exception to typical fair use concepts is simply wrong."

                        Me: Newspapers and news are really not the type of commercial use I was considering at all, because they are not reselling the product, only using the content in support of a story. You would have to agree that, as an example, a newspaper running 1 chapter from a book each day until the book has been entirely published wouldn't be fair use. Their fair use claims are very narrow, and do not relate to resale of a product. It is more of an editorial use rather than direct commercial use.

                        You ran the book story a while back in part I think because you were pretty impressed that the courts found this to be fair use. It is a bit of the extension of the newspaper rules, again an editorial rather than commercial use. The results would potentially have been different if the book was nothing but other people's images, without any material from the "author".

                        I think that in showing the examples, you have pretty much confirmed it for me: as a general rule, commercial use is rarely if ever fair use. To err on the safe side, using "commercial use is not fair use" as a rule of thumb would be a prudent way to go. You might find exceptions, but they are comparatively rare (and none of them seem related to stock photography).

                        For Maisal, I think that any time people take it beyond words and move to actions, they have lost the plot. For anyone to have incited or suggested this as a good course of action makes me wonder. I also think while you feel the story is wrong, it is a clear indication that there is another side to the deal that isn't quite so clear, and perhaps shows that a certain part of what they call the "freetards" are going a little too far.

                         

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                          Anonymous Coward, Jul 7th, 2011 @ 10:33am

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                          The fact that you didn't consider types of commercial use that are often found to be fair use when stating that commercial use is not fair use does not make the statement "commercial use is not fair use" any more true.

                           

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                          Mike Masnick (profile), Jul 7th, 2011 @ 11:21am

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                          You said: "Not exceptional at all. The case law on fair use is littered with examples of commercial use. Newspapers and news programs (radio and TV) regularly rely on fair use, and they're commercial enterprises. To claim that it's an exception to typical fair use concepts is simply wrong."

                          Me: Newspapers and news are really not the type of commercial use I was considering at all, because they are not reselling the product, only using the content in support of a story. You would have to agree that, as an example, a newspaper running 1 chapter from a book each day until the book has been entirely published wouldn't be fair use. Their fair use claims are very narrow, and do not relate to resale of a product. It is more of an editorial use rather than direct commercial use.


                          Holy logical fallacy, Batman.

                          You: There are no black puppies!

                          Me: Actually, there are lots of black puppies.

                          You: Yes, but if you took a black puppy and painted it red, there wouldn't be black puppies, so we can all agree that there really aren't many black puppies.

                          Since you probably won't get this, let me spell this out for you: You claimed there was almost no commercial use that was fair use. That's false. You are wrong. You should admit that you are wrong. Your example above of a newspaper publishing a book is an example of commercial use that would not be fair use, but is irrelevant. The fact that some commercial use is not fair use does not disprove the point I made which is that plenty of fair use cases involve commercial use.

                          Look, even one of the lawyers in this thread who regularly disagrees with Techdirt is telling you you have no idea what you're talking about.

                          It's time to pack it in and admit you're clueless on the subject.

                           

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                      Anonymous Coward, Jul 7th, 2011 @ 9:57am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      I don't think it's quite as rare as you seem to think.

                       

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      Not an Electronic Rodent (profile), Jul 6th, 2011 @ 10:56am

      Re:

      "Fair use doesn't include resale rights. Trying to resell the image on a stock photo site without a release for the main subject of the photo is risky. Legally, he is very likely to lose."

      As descibed the photograph was of a person on top of the "artwork". That's not fair use? Well bang goes any photograph that includes for example any architectural structure as a background... someone will certainly have "rights" to people being able to see those in a picture. So you can only sell a photo against a natural background then? Well until someone who planted the tree claims "rights" over that too of course.

       

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        Anonymous Coward, Jul 6th, 2011 @ 12:06pm

        Re: Re:

        I don't disagree with you, but here is the question:

        What is the fair use in selling the image as stock photograhy, where it could be used in advertising, example?

        He could keep the picture for himself. Heck, he could probably publish in a book and have no issues. Once he tries to resell it commercially, it's a whole other ball of wax.

        As I mentioned to Marcus above, Commercial rights are incredibly complex, certainly lawyer range stuff and really you want a good lawyer too. In my non-lawyer opinion, I cannot see what the fair use would be here. Fair use seems to be judged on the use. I cannot see stock photography sales as fair use, but I would love to see examples of judgements that say otherwise. That would be news to me.

         

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          Anonymous Coward, Jul 6th, 2011 @ 1:04pm

          Re: Re: Re:

          IP lawyer here.

          You're thinking of the issue in a fundamentally flawed way if you're asking "what is the fair use?" or saying "I can't see what the fair use would be."

          There is not some single criterion that, if present, means you've spotted "the fair use."

          You have to balance several factors, and several of them could go in favor of finding fair use here.

           

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            BeeAitch (profile), Jul 6th, 2011 @ 4:52pm

            Re: Re: Re: Re:

            Except that that is not what he is paid to do.

             

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            Anonymous Coward, Jul 7th, 2011 @ 8:29am

            Re: Re: Re: Re:

            I agree with you completely. My thoughts are that I cannot see much of anything in directly selling stock photographic images that would meet the criteria of fair use. Those who purchase the image and use it in certain ways might have a claim of fair use (perhaps used in a newspaper or as part of a church social sheet, example), but as it stands there isn't anything that would allow the photographer to directly claim fair use in his attempt to market the image.

            What sort of factors do you see that could make it fair use?

             

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              Anonymous Coward, Jul 7th, 2011 @ 8:54am

              Re: Re: Re: Re: Re:

              What sort of factors do you see that could make it fair use?


              The photograph was taken on a public sidewalk, and the plaintiff claims copyright in a feature permanently embedded into the sidewalk by the City.

              If we look at this as a time, place, or manner restriction, then it fails: The person claiming to own the copyright on this piece of sidewalk is restricting the expressive purposes to which this piece of sidewalk may be put.

              Even if this photograph is being put to a "commercial use" under the copyright act, the photograph is not "commercial speech" under the first amendment. (For that matter, even if it was "commercial speech", it's not false or misleading commercial speech.)

              Suppose we were to presume that the copyright owner could arbitrarily refuse to license use of this piece of sidewalk for expressive purposes while discriminating based on content? Then the City's act in installing the art would be unconstitutional. Thus, the City would be forced to remove the artwork from the sidewalk. But that seems unreasonable and excessive. So, instead, this is fair use.

               

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                Anonymous Coward, Jul 7th, 2011 @ 10:41am

                Re: Re: Re: Re: Re: Re:

                Nothing you said has anything to do with fair use, and I have a hard time believing your constitutional analysis is valid either.

                 

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                  Anonymous Coward, Jul 7th, 2011 @ 11:02am

                  Re: Re: Re: Re: Re: Re: Re:

                  Nothing you said has anything to do with fair use....


                  Fair use is one of copyright's builtin accomodations to the first amendment. See e.g. Eldred.

                  The § 107 factors are not the exclusive factors to be considered in a fair use.

                  It would be very strange to find a traditional first amendment analysis not relevant to an analysis of one of copyright's builtin accomodations to the first amendment.

                  Analyzing a time, place, and manner regulation for content neutrality before deciding on intediate scrutiny is straightforward first amendment analysis.

                  Here, the City could not directly impose a non-content neutral permitting scheme on a traditional public forum.

                   

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                  Anonymous Coward, Jul 7th, 2011 @ 11:17am

                  Re: Re: Re: Re: Re: Re: Re:

                  ... and I have a hard time believing your constitutional analysis is valid either.


                  The City may not constitutionally enact a viewpoint-discriminatory permitting scheme on a public sidewalk. Do you really need cites for that basic proposition?

                  What the City may not do directly —by an ordinance invalid on its face— the City also may not do indirectly, by delegating sidewalk-permitting decisions to a private, unelected, unaccountable individual.

                   

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              Anonymous Coward, Jul 7th, 2011 @ 10:40am

              Re: Re: Re: Re: Re:

              Factor 1: Nature of the use. I haven't seen the photos, but the descriptions sound like they could be significantly transformative. On the other hand, the use is clearly commercial. I could see a court going either way (or neutral) on this.

              Factor 2: Nature of the work. Sculptural works may be considered near the core of copyright protection in general, but these particular works are simply the sculptural form of well-known dance steps. Thus they include a high proportion of non-protectable material, and are somewhat analogous to heavily factual works. I'd have this go for the defendant.

              Factor 3: Amount and substantiality of the work used. Again, I haven't seen the photo, but it sounds like only a small portion of the work is used, and not "the heart" of the work. I'd have this go for the defendant.

              Factor 4: Effect on the market. I have a hard time seeing how use of a small portion of the sculptural work harms the market for the work. It certainly doesn't harm the market for future sculpting works by the artist or casts of the sculpture/dance steps.

              The only argument could be that it harms the photo-licensing market. This is runs into a bootstrapping problem with the fourth factor, in which you can say it harms the market for licensing only if you presume that a license is needed in the first place (i.e. it's not fair use).

               

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      Chris-Mouse (profile), Jul 6th, 2011 @ 11:00am

      Re:

      Fair use doesn't include resale rights. Trying to resell the image on a stock photo site without a release for the main subject of the photo is risky. Legally, he is very likely to lose.

      Fair use doesn't mean "any use".

      Fair use can, but doesn't always, include any and all rights that would otherwise be restricted by copyright. The question isn't qhich right is being violated, but whether or not it's fair, and fair can include commercial resale if the other three factors in the test are decided in the defendant's favor.
      The problem is that deciding wheter or not a use is fair has to be done by a court, and, win or lose, you're still going to be out a big pile of money by the time the dust settles.

       

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        Anonymous Coward, Jul 6th, 2011 @ 11:35am

        Re: Re:

        Chris, you got it right. In an area where the legal implications are very grey, and mostly on the site of the rights owner, it is very complex to determine. Fair use generally applies to non-commercial uses, but there are exceptional cases.

        In this case, the resale as a stock photo means that the courts would have no specific fair use to judge. My personal feeling (I am not lawyer, sorry Marcus) is that without a specific use, fair use would be very hard to establish. DO you have any examples maybe of stock photos being covered by fair use?

         

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          David Liu (profile), Jul 6th, 2011 @ 12:51pm

          Re: Re: Re:

          Why would you need a specific usage to establish fair usage?

          According to the fair usage clause:
          The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

          Fair use isn't only defined by it's commercial/non-commercial usage in the world; it's also defined by whether the work it is being contained in is "fair", if you get what I'm saying.

          Besides, here's an example of stock photos being covered by fair use:
          Every stock photo of a city out there.

          Obviously there aren't many lawsuits of stock photos that are covered by fair use, because stock photos that ARE protected by fair use aren't going to get sued in the first place, for the most part.

           

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            Anonymous Coward, Jul 6th, 2011 @ 1:07pm

            Re: Re: Re: Re:

            The city photos are a great example, mostly because they don't specifically contain any one item as it's focus, rather a collective. I am sure however that images of a city used to promote a product, example, would have the brand names and such removed or altered as to not imply any relationships.

            Fair use certainly is not defined only by commercial aspects, my thoughts are only that it having a commercial aspect (used to sell a product in advertising, example) might be a tipping point of sorts in the discussion. Remember also that in saying commercial, I am really focusing on the use of images in marketing and promotion, and not so much of images published as part of non-fiction book about a time period, example.

            The specific use of this image to be sold as a stock photo I think is most relevant, I can suspect that other uses would likely have not lead to any legal action, as they could have been more clearly fair use.

             

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              Any Mouse (profile), Jul 6th, 2011 @ 3:30pm

              Re: Re: Re: Re: Re:

              And what was the 'main focus' in this photo? The art? The person on the art? Maybe the act of imitating the moves? Maybe it was the reactions of the people around the central figure (which was the person, not the art)?

              The fact is, you don't know! You can't even guess, and putting it out there that he would most certainly have lost just makes you look like all the things you accuse others of.

               

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                Anonymous Coward, Jul 7th, 2011 @ 7:06am

                Re: Re: Re: Re: Re: Re:

                Thankfully I don't have to make a guess. I don't think that the focus of the image is particularly relevant, because it is about something in the image. No matter where the photographer is attempting to put the emphasis, the item is still in the image.

                By the description, the item is also not just incidental to the image, but a key part (otherwise it would be just a kid on a sidewalk).

                So no guessing required.

                 

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          nasch (profile), Jul 6th, 2011 @ 8:32pm

          Re: Re: Re:

          My personal feeling (I am not lawyer, sorry Marcus) is that without a specific use, fair use would be very hard to establish.

          You don't really know what fair use is, do you?

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

           

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            Anonymous Coward, Jul 6th, 2011 @ 8:56pm

            Re: Re: Re: Re:

            I understand perfectly. Just look at the four prong test:

            the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
            the nature of the copyrighted work;
            the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
            the effect of the use upon the potential market for or value of the copyrighted work.

            In each case, the term "use" is part of the test. Without a specific "use", how can one apply the four prongs of the test?

             

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      dwg, Jul 7th, 2011 @ 2:45pm

      Holy crap, I fell off the right side of the page!

      AC, you've taken a matter that is moderately complicated and made it totally incomprehensible. Only those with a background in this area of the law will be able to keep their heads straight reading your posts--and then, they'll be left with no new information at all, only their original understanding that (1) this can be a difficult area, and (2) a lot of people who pretend to know a lot are morons.

      Marcus, you've tried to explain the inherent difficulties in the area, and have succeeded--including by using your own back-and-forth with AC as a good exemplar.

      Score: Marcus, 1. AC, 0. The rest of us: minus 15 minutes we'll never see again. No resale rights? What the crap does that even mean?

       

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    :Lobo Santo (profile), Jul 6th, 2011 @ 8:38am

    *sigh*

    Ya know, all this legal BS about copyright really sucks, but I suppose it's better than the ol' guns & knives way of settling such disputes.

    ;-P

     

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      btr1701 (profile), Jul 6th, 2011 @ 11:41am

      Re: *sigh*

      > all this legal BS about copyright really sucks,
      > but I suppose it's better than the ol' guns &
      > knives way of settling such disputes.

      At this point, I'm not so sure.

      Blind and savage violence at least has a sort of elegant simplicity about it.

       

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        Anonymous Coward, Jul 6th, 2011 @ 11:11pm

        Re: Re: *sigh*

        It would certainly make some people think twice about flinging questionable infringement claims around if they had to engage in a knife fight for it.

        It's one of the more egregious problems with IP laws as they are used today: certain folks twist them out of all proportion because it's just too damn easy to frighten people with costly lawsuits and preposterous damages.

        Instead of focusing on enforcement and more bad law, the penalties for abusing the law as it stands should be jacked up to far more painful levels. There's no real disincentive to *not* abuse the law (bogus DMCA takedowns come immediately to mind). There is no balance anymore, if there ever was, only the apex or the pit.

         

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    John Doe, Jul 6th, 2011 @ 8:42am

    I hope his dance steps don't infringe

    Do a google image search on dance steps and you will get tons of hits diagramming dance steps. I hope his steps don't copy these because a take down would be a bitch.

     

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    Anonymous Coward, Jul 6th, 2011 @ 8:44am

    So i can't take a photo of myself on top of some statue and try to pawn it off on some suckers without violating copyright of the statue?

     

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    A.R.M. (profile), Jul 6th, 2011 @ 8:45am

    If Mackie's this concerned about his works, here's a stellar idea: keep your art in your own home.

    Artists like this sicken me.

     

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    out_of_the_blue, Jul 6th, 2011 @ 8:51am

    "do the exact opposite of the stated intentions"

    Such as Bush claiming to be "liberating" Iraq. That's THE number one method used today: make up a good sounding title such as "Enduring Freedom", or "Patriot Act", when instituting a police state. Has the useful (to the liars) side effect of no one trusting anything, so the scale of lies can be increased, nothing ever pinned down, just more lies to muddle up.

    However, more on topic: you ARE right up to a point on "law", that point being "de facto" or actualities. -- And you can't seem to grasp that you really are losing there, making your notions irrelevant. -- The actualities are why I think that the true purpose IS being served, and that's why to prevent /anyone/ from gaining special privileges in "law", EVERY tiny point secures the beachhead for the coming full scale assault.

    It's a mistake for anyone to cave before a trial: if you're right, stick to your guns. -- But of course if you're doing DERIVATIVE "art", then you DO NOT have a /full/ right.

    Also, this one is so scrambled with public funding that the "artist" has NO claim to the work, either. -- And so though I agree with his words, he's just FLAT WRONG in sum: It's PUBLIC property, a concept which is also disappearing under the libertarian/neocon assault of "privatizing" everything, even warfare. You WILL regret that, people, and soon. Fascism is the mixture of gov't and corporatism. -- This is more public funding, private profits, so dear to the black hearts of both National Public Radio and to Wall Street bankers with their bailout.

    So there's no one clearly correct in the piece, another typical mess...

     

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      Marcus Carab (profile), Jul 6th, 2011 @ 8:59am

      Re: "do the exact opposite of the stated intentions"

      WHAT in "the" NAME OF ALL that is /holy/ are you RAMBLING about? --and why CAN'T you WRITE and PUNCTUATE like a "normal" person?

       

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        out_of_the_blue, Jul 6th, 2011 @ 9:15am

        Re: Re: "do the exact opposite of the stated intentions"

        I think to anyone who reads all that it's obvious that I'm NOT "rambling". Simple mockery doesn't make a case: you've obviously nothing. I label my posts with a "handle" so one can skip.

        What is this "holy" name, and by what authority do you seem to assert that I must answer to /you/ for actions?

        My writing style isn't random as you imply: it's simply due to using real TEXT.

        Again, by what authority do you imply that I'm not normal? Are you NOT outraged by the Bush administration stating that the US is "liberating" Iraq by murdering hundreds of thousands? -- I seized on the quoted part because it's one of my hot buttons, but I think it's as merged and as relevant as most of MIke's rambling.

         

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          Marcus Carab (profile), Jul 6th, 2011 @ 9:32am

          Re: Re: Re: "do the exact opposite of the stated intentions"

          Er, well I do agree with you about Iraq, though I am not sure what that really has to do with this story about a Seattle photographer

          It's clear that you believe the U.S. Gov't is irredeemably corrupt and that capitalism is a bad thing. I'm not sure I'd go quite that far, but those are totally valid points that are fair to discuss - it's just that you drag every single story back to that theme.

          When we're talking about one particular lawsuit, it's kind of random for you immediately go off about Iraq, NPR and Wall Street (though it does explain the handle you choose) - it really distracts from the real topic people are trying to discuss.

          I mean, I could take every conversation and say "well yeah but really we're all just molecules floating around, so let's look at this from a chemical perspective" - and I wouldn't be wrong, but I wouldn't be contributing anything relevant either.

           

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            techflaws.org (profile), Jul 6th, 2011 @ 10:10pm

            Re: Re: Re: Re: "do the exact opposite of the stated intentions"

            Isn't there some law already about this? For bringing up Iraq no matter how far away from the topic of dicussion?

             

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          nasch (profile), Jul 6th, 2011 @ 8:34pm

          Re: Re: Re: "do the exact opposite of the stated intentions"

          I think to anyone who reads all that it's obvious that I'm NOT "rambling".

          Actually most of that post was very difficult to follow, at best.

           

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        Atkray (profile), Jul 6th, 2011 @ 9:18am

        Re: Re: "do the exact opposite of the stated intentions"

        He forgot his Skittles.

         

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        Anonymous Coward, Jul 6th, 2011 @ 9:30am

        Re: Re: "do the exact opposite of the stated intentions"

        Dammit all Marcus, I've got coffee all over my desk and monitors now......

         

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        Not an Electronic Rodent (profile), Jul 6th, 2011 @ 11:00am

        Re: Re: "do the exact opposite of the stated intentions"

        WHAT in "the" NAME OF ALL that is /holy/ are you RAMBLING about? --and why CAN'T you WRITE and PUNCTUATE like a "normal" person?

        Very Shatner-esque

         

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      Anonymous Coward, Jul 6th, 2011 @ 9:15am

      Re:

      Umm, a little too much COFFEE this MORNING?

       

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      Ron, Jul 7th, 2011 @ 5:33am

      Re: "do the exact opposite of the stated intentions"

      Your are a fucking moron.

       

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    Anonymous Coward, Jul 6th, 2011 @ 9:29am

    Regarding Tom Petty and ASCAP/BMI licensing, saying "he doesn't have a legal leg to stand on" is going a bit far. He may not have a copyright claim, but there is (or may be) at least a leg to stand on regarding a trademark/unfair competition type claim if some people are likely to take use of Petty's music as an endorsement of Bachmann.

    Depending on the song used and how it is used, that could be a legitimate claim.

     

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      nasch (profile), Jul 6th, 2011 @ 8:37pm

      Re:

      Has there ever been a successful case by a musician against a politician on trademark or unfair competition charges? I know some politicians have used unlicensed music in commercials and gotten in trouble for it, but that's a different issue.

       

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        Anonymous Coward, Jul 7th, 2011 @ 10:46am

        Re: Re:

        Not sure if there have been judgments in any such cases, but I think some politicians have stopped using the songs. That's successful in my book.

         

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          nasch (profile), Jul 7th, 2011 @ 8:34pm

          Re: Re: Re:

          Sure, but that says nothing about the validity or likelihood of success of the lawsuits, which is why I asked about judgments. I really doubt there would be any legitimate trademark claim, but I don't really know much about "unfair competition" laws (this is a whole category of laws that sounds like it shouldn't even exist, but that's a different issue).

           

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      marcyrw (profile), Jul 7th, 2011 @ 6:24am

      Re:

      Also, if Bachmann used the song in connection with videos she or her campaign made of her, for example, at rallies, she could be held liable for copyright infringement.

       

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    Gracey (profile), Jul 6th, 2011 @ 9:37am

    I'm wondering...should I run right out an take a photo of my grandchildren standing in his dance steps...and then license my photo under creative commons for the rest of the world to use?

    I seriously fail to see how a "photo" of concrete impressions in a sidewalk has the potential to cause him any loss. It isn't like he's able to um, sell the artwork again. He was already paid for it...with public funds, created in a public place...using I assume public property (a sidewalk) paid for most likely by the taxes of the citizens of that city.

    Soooo, who actually owns the artwork? And...are the dance steps themselves a new dance he created, or are they "prior art"?

     

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      Andy Brittain, Jul 8th, 2011 @ 8:13pm

      Re:

      "Gracey:
      I seriously fail to see how a "photo" of concrete impressions in a sidewalk has the potential to cause him any loss. It isn't like he's able to um, sell the artwork again. He was already paid for it...with public funds, created in a public place...using I assume public property (a sidewalk) paid for most likely by the taxes of the citizens of that city.

      Soooo, who actually owns the artwork?..."

      It doesn't matter who owns the artwork, but rather who owns the copyright in the artwork. The two are separate things.

      It depends entirely upon the contract he had with the city. They may have paid for both the artwork AND the copyright to the work, or, as seems most likely the case in this instance, they just bought the artwork itself. In which case the artist still owns the copyright to the work.

      In simpler terms, when someone buys a painting from a painter (or from a gallery) more often than not they don't buy the various "copy-rights" (i.e. copyright) associated with the painting. Physical ownership of a particular work does not imply ownership of the copyright.

      Of course in many cases a buyer can always seek the full ownership of all rights in a particular work. But as usual, that has a higher cost....

       

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      Andy Brittain, Jul 8th, 2011 @ 8:13pm

      Re:

      "Gracey:
      I seriously fail to see how a "photo" of concrete impressions in a sidewalk has the potential to cause him any loss. It isn't like he's able to um, sell the artwork again. He was already paid for it...with public funds, created in a public place...using I assume public property (a sidewalk) paid for most likely by the taxes of the citizens of that city.

      Soooo, who actually owns the artwork?..."

      It doesn't matter who owns the artwork, but rather who owns the copyright in the artwork. The two are separate things.

      It depends entirely upon the contract he had with the city. They may have paid for both the artwork AND the copyright to the work, or, as seems most likely the case in this instance, they just bought the artwork itself. In which case the artist still owns the copyright to the work.

      In simpler terms, when someone buys a painting from a painter (or from a gallery) more often than not they don't buy the various "copy-rights" (i.e. copyright) associated with the painting. Physical ownership of a particular work does not imply ownership of the copyright.

      Of course in many cases a buyer can always seek the full ownership of all rights in a particular work. But as usual, that has a higher cost....

       

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    Anonymous Coward, Jul 6th, 2011 @ 10:33am

    Streets and sidewalks

    Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.

              ——Hague v CIO (1939)


    Here, now, some person claims to own all photographs taken at particular place on public sidewalks along Broadway, in the Emerald City of Seattle.

    This is not right.

    Generally, I believe that the people of a city have the right to stop and regulate private companies who would otherwise indiscriminately rip up their streets and sidewalks. The mischief is a great public inconvenience. In this case, though, I think Olympic Pipeline should come in through there and just tear up that concrete with jackhammers.

     

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    Ceasar, Jul 6th, 2011 @ 10:47am

    From above

    Is the next step to sue Google Earth for photographing the statue from above and then providing the picture for free?

    Gimmie a break. If you decide to put your art on a public sidewalk, expect it to be photographed. From ANY angle.

     

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    K, Jul 6th, 2011 @ 11:07am

    Publically funded artowork makes it mine

    Taxpayers, payed for that artwork. It also became public property, and no longer "belongs" to the artist, who signed it away into public use.

    If I buy an artwork from an artist, and later decide to sell it for a profit, does that mean I owe that artist the profit margin over the original purchase price?

    Strangely, the dissemination of that work might mean more recognition to the artist, but in this case, because he's a money-grubber, he should be relegated into the dungeon of unknown and forgotten artists. Frivolous lawsuitors suck. No matter what he "thought" his motivation was, he's greedy, and saw an opportunity to screw someone for a few dollars.

    Maybe he'll sue me, too, for defamation of character.....my opinion is he's a dirtbag!

     

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      Andy Brittain, Jul 8th, 2011 @ 7:56pm

      Re: Publically funded artowork makes it mine

      "If I buy an artwork from an artist, and later decide to sell it for a profit, does that mean I owe that artist the profit margin over the original purchase price?"

      In a growing number of jurisdictions, yes it does. Not quite the profit, but rather the artist would get a (small) percentage of any resales of the work. It's called droit de suite.

       

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    jakerome (profile), Jul 6th, 2011 @ 11:22am

    Can't get the point to sink in...

    One photographer has decided to make it his crusade to encourage the formation of a real-life mob to harass the employers of Thomas Hawk for his involvement in the Baio/Maisel as it were. the article is a cheap hit piece, but it's worth reading through the comments to ascertain the attitudes of many "real" photographers (whatever that means). My attempts at a rational discourse on the underlying issue-- the ridiculousness of the statutory damages-- proved impossible as I was attacked repeatedly for promoting a different point of view, and with one poster implying that he would "unmask" me (I wasn't really masked) in a vain attempt at intimidation. Not sure Hawk wants this to go too much attention, but hope Mike & the regular "freetards" here will pop over & read the discussion.

    http://www.jeremynicholl.com/blog/2011/07/04/how-stockbroker-andrew-peterson-aka-thom as-hawk-smeared-photographer-jay-maisel-in-andy-baio-copyright-row

    P.S. Where's my shout-out for submitting this issue (along with others, no doubt). I really need the XP to level up my character.

     

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      Anonymous Coward, Jul 6th, 2011 @ 11:49am

      Re: Can't get the point to sink in...

      Wow, I would love to see Mike Masnick take that story on and try to explain it away.

       

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        techflaws.org (profile), Jul 6th, 2011 @ 10:12pm

        Re: Re: Can't get the point to sink in...

        Understandable given how your ass has been handed to you in this thread yet again.

         

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          Anonymous Coward, Jul 7th, 2011 @ 9:23am

          Re: Re: Re: Can't get the point to sink in...

          This from a man called flaws.

          The only thing handed to me was Marcus's sorry ass, as he melted down online, went into baby mode and covered his ears yelling "LALALALALAA" to try to ignore me. If I got my ass handed to me, Marcus got his BBQ'ed and served up cold.

           

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      Anonymous Coward, Jul 6th, 2011 @ 2:56pm

      Re: Can't get the point to sink in...

      Tried to read. Too long.

      What's your point? Is it just that some folks on the Internet are psycho? That's not exactly groundbreaking (or related to this story) is it?

       

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    Anonymous Coward, Jul 6th, 2011 @ 11:50am

    I guess that particular sidewalk is likewise out of bounds for any filmmakers who would shoot their movie in Seattle without first obtaining a license from Mike Hipple? Must all public art installations be avoided by filmmakers, newscasters and anybody else who would otherwise be making money from images containing such artwork?

    This guy strikes me as the kind of person who would complain about people publishing pictures of the sidewalk with his rather pedestrian "artwork" digitally removed, on the grounds that it harms him as an artist or some such nonsense.

     

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    Anonymous Coward, Jul 6th, 2011 @ 2:49pm

    people like mackie are the real reason i am against copyrights, i just can't STAND their extremely egotistical snobbery and HUUGE sense of entitlement

    and there's an assload of 'em!

     

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    Anonymous Coward, Jul 6th, 2011 @ 3:32pm

    I knew Mackie's name was familiar (and not because of the audio equipment company):

    He won the princely sum of $1000 in damages after suing the Seattle Symphony, and going to a bench trial on damages, over using a photo including his work in a brochure.

    http://ftp.resource.org/courts.gov/c/F3/296/296.F3d.909.00-35839.html

     

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    BeeAitch (profile), Jul 6th, 2011 @ 3:48pm

    "I do not want my work to be part of a coffee company's ad campaign. I do not want my work to be part of a sales pitch for condos on Broadway. I do not want my work associated with banksters..."

    This guy better watch out. He's awfully close to copyright infringement of Dr. Seuss' works.

     

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    Nicedoggy, Jul 6th, 2011 @ 5:29pm

    Ok I'm laughing now LoL

    This thread is such a tension breaker :)

     

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    darryl, Jul 6th, 2011 @ 7:12pm

    Fair us = NOT for commercial gains

    How hard is that ?????

    The issue was that Hipple put the image up on a stock photo site for sale,


    Do you know what "FOR SALE" means ????? anyone,,, now take your time.... !!!!... it's NOT that hard !

    FAIR USE: EXAMPLES INCLUDE:

    - COMMENTRY
    - Criticism
    - News reporting
    - Research
    - Teaching
    - Library Archiving
    - Scholarship.

    Where the fuck does it say

    you can put the image up on a stock photo site for sale,

    To justify the use as 'fair' one must,
    demonstrate how it either advances knowledge or the progress of the arts through the addition of something new. A key consideration is the extent to which the use is interpreted as transformative, as opposed to mearly derivative.

    also Mike, how do you 'get around' this simple fact ?
    "whether such use is of a commercial nature or is for nonprofit eduational purposes"


    it is also up to the defendant to PROVE that his use of the work falls under "fair use", Mike why dont your 'play' this guys defense laywer, and provide us with a legal argument showing that is falls under 'fair use'.

    Instead of just saying that "it does", if that was the case you should be able to 'prove' that with a legal argument, showing the jury (or me) how you will prove and then proving it to be fair use, to the level where you can convince a Jury of that 'fact'.

    So GO FOR IT MIKE, put your mouth, there your mouth is.

    Just think you would be able to explain clearly how it is 'transformative' and not 'deritive', and you will show us that even though he put the picture up for sale, he was not intending to make financial gains from the sale of that picutre?


    Good luck with that Mike, or is that why you are writing for TD and not 'walking the walk' ?

     

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    Marc J. Randazza, Jul 7th, 2011 @ 1:34am

    The problem is...

    The problem is not statutory damages. The problem is that Fair Use has such tiny teeth.

    Fair use should be decided upon a special motion, sort of like an Anti SLAPP motion in California. It freezes everything, and you front-load the analysis. Then, there should be a strict enforcement of prevailing defendant fees if the fair use argument prevails. Perhaps with the judge having the right to treble the fees, or perhaps even to have statutory damages swing back at the plaintiff -- now we're talking.

    The fact is, copyright can be a good thing. but, when asserting a fair use defense can be devastating financially, free expression suffers dearly. If big rights holders were forced to care about such things, the contours of fair use would settle into a comfortable ridge, rather than being constantly eroded by unsupportable suits.

     

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      Marcus Carab (profile), Jul 7th, 2011 @ 6:22am

      Re: The problem is...

      The fact is, copyright can be a good thing. but, when asserting a fair use defense can be devastating financially, free expression suffers dearly. If big rights holders were forced to care about such things, the contours of fair use would settle into a comfortable ridge, rather than being constantly eroded by unsupportable suits.

      This!

       

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      Anonymous Coward, Jul 7th, 2011 @ 8:36am

      Re: The problem is...

      It's an unworkable idea. You are attempting to short circuit the legal system to the benefit of the defendant, and putting up significant blocks to the plaintiff.

      "prevailing defendant fees" is a horrible idea as well, because it would double the risk for the plaintiff (risk of losing the judgement, risk of having to pay for both legal fees), based on a fair use, which as a doctrine is still very grey and very murky at the edges.

      Often, they would be seeking judgements against defendants who are not well financed. Not only would they not be able to fulfill any judgement against them, but they are also further less likely to be able to pay plaintiff's legal fees, once again adding to the plaintiff's suffering in the process.

      You want the defendant to have all the rights, for the plaintiff to take all the risks, and to have to suffer with receiving an unfulfilled judgement at the end. All this for trying to defend what is rightfully theirs.

      If you want to play on the edges of fair use, and you want to work with other people's copyrighted material, you should also be ready to pay the price of getting there. It would be an incredibly injustice to place all the burden on the plaintiff, all the risk on the plaintiff, and leave the defendant with almost no responsibility or costs to get there.

       

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      Anonymous Coward, Jul 7th, 2011 @ 10:51am

      Re: The problem is...

      But since fair use is so fact dependent, how do you get a fair use ruling prior to discovery?

       

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      nasch (profile), Jul 7th, 2011 @ 7:44pm

      Re: The problem is...

      The problem is not statutory damages. The problem is that Fair Use has such tiny teeth.

      That's a false dichotomy; they're both problems.

       

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    bill, Jul 7th, 2011 @ 4:59am

    where can I get the pic?

    Does anyone know where the image can still be found? Would love to post it all over the internet :)

     

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    darryl, Jul 7th, 2011 @ 7:38pm

    So funny

    I did not expect anyone to put up a real argument, that is trying to make the case that this has anything to do with fair use.

    One person said "look at google" !!

    But NO ONE, and especially not Mike, would have the balls or ability to go beyond "ITS FAIR USE" and actually state WHY you think you could convince a judge or jury that it was was fair use, and it was not for commercial gains.

    (good luck when he was trying to sell the picture for his own gains, without attribution)..

     

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    Andy Brittain, Jul 8th, 2011 @ 7:50pm

    Buildings and copyright

    "Not an Electronic Rodent (profile), Jul 6th, 2011 @ 10:56am

    As descibed the photograph was of a person on top of the "artwork". That's not fair use? Well bang goes any photograph that includes for example any architectural structure as a background... someone will certainly have "rights" to people being able to see those in a picture. So you can only sell a photo against a natural background then? Well until someone who planted the tree claims "rights" over that too of course."

    Rodent, you don't seem to be clear on Copyright law.

    As a general rule Architectural Works which are located in or visible from a public place are specifically excluded from copyright protection as far as any form of pictorial representation (including photographs) is concerned. (See §120).

    So your 'sky is falling' scenario doesn't hold water.

    As an aside, in many jurisdictions (such as Canada) a similar sensible exclusion from copyright protection also applies to permanent public works of art. Not so in the US, obviously.

     

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