My Big, Gigantic Drum Kit

infoneer-pulse:

Fair use gets stronger—thanks, “What What (In the Butt)”

Poor “What What (In the Butt).” Once nothing more than a bizarre 2007 music video posing the question “You want to do it in my butt, in my butt?,” it went viral, racking up more than 47 million YouTube views to date—until its creators got into a long-running lawsuit with the TV show South Park. That suit appeared to end earlier this month with a decision from the 7th Circuit Court of Appeals in Chicago, which went out of its way to suggest that the video’s creators were starting to look like “copyright trolls.”

And the ill-considered case has actually turned out to do copyright law a bit of good by establishing that judges can make obvious “fair use” rulings early on in court proceedings, preventing litigants from simply running up the legal bill on the other side until they have to settle.

» via ars technica

Interesting decision. I can’t imagine it’ll have much impact on, say, unlicensed sampling cases, as Bridgeport v. Dimension (“Get a license or do not sample”) made fair use claims essentially invalid for direct lifts. Plus, in this case, all of the content that was directly reused—words and music—were paid for, while the recreated, parodied content (the video) wasn’t. But as one of the comments on the article summarizes, this could have a big impact on the cost and time involved in cases with viable fair use defenses:

Before:
1) You settle.

After:
1) You go for pretrial ruling.
2A) If judge allows discovery, you settle.
2B) If judge dismissed claim, you don’t settle

I have a feeling 2A will happen 50% of the time.

Also, as another commenter brings up, the judges actually used the term “copyright trolls” in the decision. Even if it’s arguable as applied specifically to Brownmark Films, it’s encouraging to see the phenomenon recognized and responded to.

convincingindie:

Just in case you hadn’t experienced any mind-numbing, heavy-handed International corporate propaganda this week (HAHAHA JK of course you have), here is this WIPO video on Copyright.

So horrible. 

When it’s time for you to make your own heavy-handed international corporate propaganda video, though, remember that gawky, demonic, Grover-voiced kid and nightmare parrot will always get the message across. 

In a tradition started last semester, I’ll be giving a guest lecture in Raina’s information literacy intro class on the legal and ethical issues of sampling next month.  It’s mostly college freshmen, many of whom are in a program for students who need some academic help. I’m trying to figure out how to keep things fairly straightforward (e.g., not getting too hung up on the legal specifics of, say, Bridgeport Music v. Dimension Films, but getting the ideas across by playing bits of “100 Miles and Runnin” and “Get Off Your Ass and Jam”), while making sure the focus stays on cultural reuse and the legal/economic barriers.

Now the question is: if I assign this fun little video ahead of time, can I assume they’ll actually watch it and just skip to the music?  (Answer: probably not, but that just means fewer “‘Amen’ break” examples for them, which is their gain/loss!)

mach20:

90wpm:

There’s a certain reaction among the citizens of the Internet when confronted with a modern-day David and Goliath story. Conclusions are drawn (or, more often, jumped to), villains are identified, and angry status updates and harshly-worded condemnations are tossed around like so much excrement in the monkey pit at the zoo. It’s easy to look at a situation like the one Andy Baio and Jay Maisel were unfortunately saddled with and decide quickly that Baio was a fool, or that Maisel is being an asshole.

For those of you joining the conversation now, Andy Baio is the man behind the Kind of Bloop project. The album is a recreation of Miles Davis’ Kind of Blue using 8-bit sounds. The issue in question is the cover art, which is a pixel illustration based off of a photograph taken by Jay Maisel. Baio considers the illustration fair use, while Maisel considers it a violation of copyright and sought damages of $150,000 for each violation as well as $25,000 for DMCA violations. They ended up settling for $32,500. This money came out of Baio’s pocket, not out of any revenue, as the album was given away for free.

There are two discussions running in parallel at the moment:

The Copyright

Copyright law is nuanced, but the point that’s really being debated is whether or not the work in question is “derivative” or “transformative”. Historically, this has been used to classify reproductions of original works in other media as either derivative and infringing on the original’s copyright, or transformative and worthy of a new copyright. The key here is that translations of the work to other media that keep the original composition, colors and other unique identifiable traits (derivative works) are not granted the same rights as works that recontextualize the original (transformative works).

There are strong opinions on both sides of this argument. On the one hand there are those who think that the cover is a blind translation of Maisel’s work, and therefore a breach of copyright. On the other hand there are those who assert that pixel art is a craft and deserves respect, and that the work is crafted and therefore transformative [Update: this is not meant to imply that craft = transformation, but rather that there are those who have sided with Andy, for better or for worse. Thanks to Ian Adelman for pointing this out.]. From a legal standpoint, who is right depends on whether a judge determines that the pixellated rendition of Maisel’s work is a mere translation of the work to another medium, or a new work that recontextualizes the original.

The answer depends in part on where you draw the line over what constitutes a medium. Photography is a medium. Paint is a medium. Acrylic paint is a different medium from oil paint, with different physical properties which affect the creative process.

How, then, does one define pixel illustration? Is it also a medium? Or is it one tool in the larger medium of “new media”, together with photographic manipulation, vector art and digital collage? If one creates an illustration using an original work for reference, when does the abstraction become abstract enough to merit a new copyright? This doesn’t just apply to digital media. Are illustrations like Felix Sockwell’s loosely-sketched translations of famous jazz photographs actually derivative works and subject to damages?

If you photocopy a drawing, no one in their right mind would call the copy an original work of art. If you copy it again, and again, and again, and again, to the point where it becomes another image altogether due to the limitations of the technology, or if you alter it by changing the way you place the page, that discussion changes. If this sounds like a first-year art school assignment, it’s because these are the kinds of questions that are asked of first-year art students. At what point does a copy cease to be a copy? Does the law address this?

Finally, and most importantly as far as this case is concerned, what if the art is not really the translation itself, but rather the artist’s choice to juxtapose a particular original work with a particular style? We are talking about an album cover for an 8-bit tribute to Kind of Blue. The choice of medium for the rendition has a conceptual link with the music on this record.

Granted, this was not the only design choice available given the subject matter¹. I’d also agree with many critics that the concept could have been taken much, much further. But do we really want to create an atmosphere where certain artistic choices are self-censored out of fear that they will cause the artist to be the target of litigation? Or where an amateur project which simply lacks the necessary conceptual depth is a liability worth hundreds of thousands of dollars in damages?

I won’t pretend to be qualified to offer answers. But the questions are far-reaching.

The Suit

Some people think that the problem is really a matter of cropping²:

To my eye, his conversion is far too faithful to the original, and doesn’t come close to evoking the minimalist nature of 8-bit game console graphics.

Putting aside my personal disagreement with the above³, I don’t know if that’s really the problem here. John McCoy nailed it with this quote from Maisel’s lawyer:

“He is a purist when it comes to his photography,” his lawyer wrote. “With this in mind, I am certain you can understand that he felt violated to find his image of Miles Davis, one of his most well-known and highly-regarded images, had been pixellated, without his permission […]”

Would things be different if the the pixellated photo were cropped differently so as to obscure its origin to all but the astute observer? I think that if the original source of the image could to be determined (any of the alternative crops proposed by Baio, other than the last three, would be recognizable by someone familiar with the photo), word would have gotten back to Maisel, and he would not have been happy.

This fact, then, raises some other questions:

Would things be different if the photo had been used in a montage or collage of 5 other photos?

How about 50?

How about 5000, combined into a mosaic that becomes something else (say, a trumpet) when viewed from afar?

What if the illustration was done with type?

Does sculpture count?

Would any use of the photo have been inoffensive? If so, what kind?

As others have noted, this suit would likely not have been brought against Baio had the work not gained widespread notoriety. And there’s something to be said for protecting little-known photographers against other, better-known artists taking their work and making millions from works which are obvious translations while adding nothing of value themselves⁴. But in this tale, the artist is the little guy. And while I respect Maisel’s right to litigate, and his desire to avoid death by a thousand papercuts, I still think that he went overboard. He could have let Baio go with a token settlement and an agreement to use another cover.

Instead he went for the jugular.

I think, based on the facts I’ve seen, that the punishment was disproportionate given the lack of profit motive. And that’s really what’s pissing people off.

I encourage everyone to check out Kind of Bloop and buy it if you like it. Don’t buy it out of sympathy for Andy. Buy it because it’s a damn good tribute album.

Note: I’d like to thank Ian Adelman, John Niedermeyer and Jon Chretien for enduring my rants over email and then having the courage to continue the discussion in person over lunch, and Jeremy Zilar for discussing it at length over AIM.

1. I’m partial to the bottom right, though I would have chosen a color palette closer to the top right. ↩

2. See Ctein’s addendum at the end of Mike Johnston’s post. ↩

3. Tiny, abstract sprites were not the only art created for 8-bit games. Opening screens, finales, and cut scenes all used larger pixel renditions for storytelling. This comment is particularly telling. ↩

4. Whether or not you think Baio added value is your own opinion. As Jeremy noted: “Andy Baio should have thought to make a new interpretation of the album, the music, and its relationship to today… It just seems like a lot of argument for what amounts to a bad design project.” ↩

This is a far better recap than I could possibly write, but I was talking about this the other day with some folks around my department. I find this to be such a difficult situation to look at, because I find myself sympathizing with both sides…

As one of those folks around the department, I’m inclined to agree, but I lean toward Baio’s side for reasons that reflect certain aspects of U.S. copyright law (that is, item 4 of what’s considered “fair use”:  “the effect of the use upon the potential market for or value of the copyrighted work”*), but, admittedly, not all. 

Maisel’s photo is a classic piece of album art, and if it weren’t, Baio’s tweaked version of it would carry absolutely no cultural weight.  Due to the renowned status of the original, there’s virtually no way that Baio’s version could displace Maisel’s in the marketplace, since they do two entirely different things.  I suppose it’s slightly more complicated due to the linked nature of the album art and music (that is, Baio’s new version of Maisel’s art is tied to the fully-authorized recreation of the album), but it still seems like the cultural status and potential profits associated with Maisel’s original piece are not threatened in the slightest. 

*  Since U.S. copyright law is largely about that sweet, sweet money (and is abused accordingly by rights holders) and not moral rights, as in Europe, I consider it apt to put a substantial emphasis on this particular justification for fair use.