I chose photograph specifically for the lack of transformative element. Generally, use of a photo is exactly as the photo was taken. I don't believe a court likely taking a photo and placing it within another photo or ad transformative. Courts have noted taking a photo and placing within a book as transformative. Bill Graham Archives v. Dorling Kindersley, Ltd.But I think this would be different. In any event, we can agree to disagree. I think Perfect 10 a bit different because it could be argued a thumbnail pic has less resolution and is "kinda" transformative, where as,in my example and yours, the photo would be unadulterated.
I chose a photograph specifically because the photographer is the rights holder and the photo was used without permission and there would be no transformative element. Moral rights do not figure into the equation because the politician did not license the use. I am not fond of moral rights and was not trying to imply after a sale the creator has any say in what is done with the creation. Interesting you brought up compulsory licensing because the license is contingent in not changing the song. So the compulsory license almost gives a moral bend because you don't have to get permission from the author but you can't really change it, in fact, in a way, controlling the song.
The Fair use test includes an evaluation of whether the original creator's economic efforts are being stymied and perhaps I should have been more clear. I think many ignore the literal meaning of copyright is the "right" to "copy." The control of derivative works etc. Whether there is a philosophical disagreement with the enumerated rights given is personal but as the statute is written, if a creator doesn't want their art used by someone or for something they are intrinsically opposed, regardless if they are economically harmed is their right. I think a perfect example, the photographer who is against discrimination based on sexual orientation and their photo being is used in a political ad by a candidate opposing gay marriage. If fair use was only an analysis of whether the photographer was being prevented from making money, this outcome could happen all the time with no recourse for the photographer. Thankfully, this is not the case.
"Once people try to make a business out of creativity, we run into problems."
This statement suggests that creators should not try to make a business from their creations because it causes problems, to which I could not disagree more.
"The big problem with current copyright law is it treats everyone's creative act like it has business potential."
Who is to decide that is does not have business potential? You, another? Business potential is decided by the market. The protections given by the statute to the creator allow him or her to explore the possibility without another with more capital using the same creation and not monetarily compensating the originator.
"With an opt-in system (and searchable database) people who feel their works have value can pay to protect it, and everyone else can just be free to create. I'd have a lot more sympathy then when people cry infringement."
An opt in system would automatically exclude those that were unaware or unable to pay the cost of registration, unless of course this registration were free. All are free to create. I do not believe sympathy for infringement is necessary, the law provides protections.
Yes. The graph shows options to acquire content other than cable. If, as the author laments, and as the title suggests, piracy is not mentioned, then option E would include piracy. Why, pray tell, would a writer, writing for a major publication not mention piracy as an option? I believe there is a one glaring reason.The premise of the article seems odd and the answer rather obvious.
There is no doubt that Kutiman is incredibly creative and the work would definitively lean more towards fair use as very small parts of the original sources were used to create a new work. However, there are many mashups or remixes that use the entire vocal track of one song over the instrumental of another. In this context I can understand and support the licensing aspect. The court has defined a sample as requiring licensing in that it is the exact performance that is used. It is not similar, it is a copy. In addition, an argument (although weak) could be made that the mashup or remix is depriving the original creator to commercially exploit the work in the same manner.
"Often times you have to defend the scum, in order to protect the rights of the innocent."
Yes, I agree. Perhaps what I am suggesting is if the SOLE purpose of a site is to post these types of images, can a site operator REALLY state they had no idea as to what type of content was posted? To feign ignorance is just dishonest, like running pawnshop and turning a blind eye to stolen property and then saying there was no way to check. I don't have the solution just voicing my thoughts. When commerce is involved, it is hard to justify an operator is not responsible in any form or fashion as to the content they are profiting from.
I wonder if protecting revenge porn sites was intent of the 230 protections. I would like to hear justifications as to why a site created solely to post intimate pictures of others (presumably, without the subject's consent) should be protected. These are not public figures and individuals have an inherent right to privacy. If someone took a photo of you in a compromising position, and you intended it for an individuals use and then it was posted on the internet, wouldn't you like some recourse? Shouldn't you have a say? I believe in freedom of speech but wonder the cost in this context. In addition, someone is profiting from an image the subject did not intend to sell.
What should really be determined is if Left Shark was a work-for-hire and if it was, Perry very well could own the rights. The argument against Left Shark's ability to be copyrighted because it is a costume seems pretty week. There are many characteristics of Left Shark that are different from other shark "costumes" that a case for its uniqueness could be established.
"You can't really blame the movie industry, ever since music became easily available online it's become freaking impossible to find any band playing live.
Live music generated $16.6 billion in 2006, and 23.5 billion in 2011. See? Digital music is killing the music industry."
I appreciate the irony. As the income generated from the sales of recordings fell, live performances become even more important for artist to earn a living. 95% is the percentage thrown around of a major act's income derived from live performance. Eventually the movie industry will come around and admit an illegal download is an opportunity for monetization lost because the consumer could not get the content how and when they wanted it.
Great to see the Judge really understanding the statute and the protections given to the composition vs the recording. That was the point entire time. The songs "feel" similar. However, copyrighting feel is akin to copyrighting "disco"or "funk" or songs with bongos. What is most bothersome is that the M. Gaye tune is in a minor key and "Blurred lines" is in a major key. That is why the estate is battling like this because, music theory wise, the songs are not the same.
To imply I left details out purposely is amusing. My purpose for placing the performance royalty rates was to show how small they actually are. Terrestrial radio does not pay performance royalties. And, as I stated earlier, many countries do pay performance rates for terrestrial radio. So, for the author to imply it is a practice that is dishonest is misguided. The rates are unsustainable in that many artist just won't license their music or license very few songs to a streaming service(i.e T, Swift). The point has been made that a spin on terrestrial is more valuable than on internet. I agree. However, I would argue that in many instances, one spin reaches more than one person. To ignore many small businesses use streaming services, artificially devalues a spin on the internet because the number of listeners is inaccurate.
"wouldn't an artist want the streaming service to pay more?"
And this attitude is exactly the problem. For starters, of course artists want more money.
The argument of Swift and many others is that the service cannibalizes record sales. That is why they might want more. I suggest to any artist. Don't release a new record to a streaming site until it's sales run has completed. Why should Swift or any other artist wait 5,10,15 years for the monetization from streaming services when they can just hold it initially from the site, increasing demand for the purchase of the music?
"All these companies knew this was a gray loophole that copyright holders would likely challenge."
I disagree. They were following the policy set for decades. However, it is supply and demand. If these services really want the music then they will pay. If they don't then they won't. It should be a simple cost benefit analysis by the streaming services. I am sure some will be pro-active.
I can only use myself and my buying habits for this argument. However, I don't believe I am alone in this behavior. Some artists' music I buy. Others I only stream. As for profitability, for Swift it was a no-brainer. And I believe her first week sales speak for themselves.