Will 'Clipart Covers' Find Itself Staring Down The Barrel Of A Lawsuit?

from the next-idea?-using-clipart-to-recreate-iconic-stock-photos dept

Every time you think the internet has already covered every possible iteration of everything, up pops something new. The current frontrunner for the “Best New Internet Thing of the Immediate Future” is Clipart Covers, which does exactly what it says on the tin: it recreates album covers using only clipart and, apparently, Comic Sans.“Immediate future” defined as anywhere from 30 nanoseconds to one week.

Here are a couple of examples:

Très amusant, non? Just a little friendly derivative artwork with no greater purpose than a few lols. But is it actionable?

Good question. The site creator has even avoided the potentially litigious pitfall of hosting the original artwork for comparison and it would seem that the artwork here is transformative enough to avoid legal action and would definitely fall under most people’s definition of “fair use.” In fact, it would even fall under one legal interpretation of fair use, specifically Blanch vs. Koons, in which the court stated that Koons’ use of a fashion photo “added something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”

Which brings us to the handcrafted term “Maiseling”… As Techdirt readers will surely recall, a re-done album cover touched off an internet shit storm a few months ago. An 8-bit remake of the album cover for Miles Davis’ “Kind of Blue” turned into a lose-lose situation for Waxy.org’s Andy Baio, who settled with album cover photographer Jay Maisel rather than risking a much larger amount attempting to have a court recognize it for what it was: fair use.

It’s entirely possible that the creator of Clipart Covers will never face legal action for his her reinterpretations. But all it takes is one photographer, one label rep or one clipartist to derail the whole thing and turn a spur-of-the-moment idea into a financially crippling legal nightmare. And sadly, there is no real benchmark for “fair use.” It’s still very much in the eye of the beholding court, but chances are that an aggressive “Maiseling” will ensure it never gets that far. This will also ensure that the definition of “fair use” stays ambiguous enough to allow for repeated blunt force trauma via the copyright-as-weapon plan.

And I’m sure the critics will be (s)trolling through the comment threads soon enough, throwing around words like “ripoff” and “uncreative,” and citing their unproven ability to create art in a vacuum. To them I say, if you want people to “respect” copyright, you need to treat it as a tool for the common good rather than a pecuniary weapon. You also need to realize that when people put together something like Clipart Covers, they’re not doing it to flaunt copyright or disrepect the original artists. They’re doing it to be part of a shared cultural experience, something aggressive copyright holders seem to actively disdain.


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Comments on “Will 'Clipart Covers' Find Itself Staring Down The Barrel Of A Lawsuit?”

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mercutuoviz (profile) says:

Fair Use Test?

I would love to see someone with more guts than I take the initiative and create a fair use test. IIRC, someone did a series of ever more blocky digitizations of the Maisel photo that was at the center of the aforementioned Internet p00p storm. I would love to see someone take dozens of popular images (all of which still under copyright) and produce a sort of litmus test where the original artist as well as the public could vote on the first image that crosses from infringing to fair use.

I suppose as a safe test we could use public domain images, although I’m sure it would only be a matter of time before UMG starts sending out the DMCA takedown notices. 😉


Lawrence D'Oliveiro says:

Re: Fair Use Test?

If only it were just about guts. But it?s not: it?s about having a strong stomach, an almost pathological streak of stubbornness, and possibility even a penchant for masochism.

I have no idea what it?s like to be on the receiving end of a lawsuit. But every experience I have read about (here on Techdirt and elsewhere) shows that it is basically a life-destroying experience. No wonder most reasonable people would rather give in than fight.

Atkray (profile) says:

Re: Re: Fair Use Test?

Only a lawyer wants to go to a courtroom. The average person, not so much.

Additionally, I have the unpleasant suspicion that if you had such a case and it got to where you might get a nice clear litmus test type ruling the other side would throw irresistible amounts of money at you to make you settle.

Copyright maximists would do anything to keep fair use obfuscated.

xenomancer (profile) says:

Just Trolling

And I’m sure the critics will be (s)trolling through the comment threads soon enough, throwing around words like “ripoff” and “uncreative,” and citing their unproven ability to create art in a vacuum.

I would leave an uncreative reply, but that would be such a ripoff. I have indeed created art in a vacuum, just ask the flight attendant who used the bathroom after me a week er two ago. I’m sure she’s about recovered from the visual awe that caused her to pass out and bump her head.


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