djpretzel

I don't think it was unthinkable or ignorant, I think it was oversight - more or less an "oops" moment. I don't think, at the time, he was actually thinking about Fair Use at all. I think he came up with that after the fact, once legal action began, which is a bad time to start considering its criteria. Certainly not unthinkable, probably not ignorant, but just... accidental, I'm guessing? That's how it comes off to me, at least... As for disproportional punishment & greed, well... I'm going to confess: I come at this from a biased position. Andy says this was a side project, not financially motivated, and borne out of love. In that case, it would have been easier to just give it away, as a free fan tribute. That's always been my thought process in terms of honoring VGM and VGM composers through arrangements, and I'm sure that rubs off on my thought process regarding this issue. We (OCR) actually DO think about Fair Use, we consciously try to operate in its full spirit, and the primary reason I chimed in is because I thought Andy's interpretation of it was a bit mangled. RE: Kickstarter, Andy helped build Kickstarter, but I think this whole case is generating tons of album sales... they moved to S3 because of the traffic? Something like that. So I guess, buy the album? Which begs a different question - how many copies have sold? Is all of the money still going to the artists, or was there a cutoff point after which profits went to Andy? How many copies had sold at the time of settlement? Forgive me if these numbers & answers have been posted elsewhere - I didn't see them on the main post at http://waxy.org/2011/06/kind_of_screwed/, and they seem relevant when talking about things being proportional, and yet no one seems to know them... I'm going to repeat my belief that they didn't actually think they'd get $150K, they probably didn't know how many albums had been sold (I still don't, myself), and they knew they'd PROBABLY be settling for less. They also probably had no idea whether Andy was wealthy or not. They demanded $150K - OR - ALL proceeds from the album, plus $20K for "DMCA Violations". Personally, I think that last bit about the DMCA Violation is a little crap. Also, why ALL proceeds as opposed to some relevant PERCENTAGE of proceeds? THAT sounds greedy indeed; clearly the music had SOME motivating factor towards people buying the album (I'd say the vast majority)... but is all of that coming from the photographer, or his lawyers? Don't know. I'm a little unclear on how many copies had sold at time of settlement, and how many have sold now. Sounds like we all are. Without that information, I'm just thinking it's standard practice to "go in high," under the assumption that you'll be settling much lower. Not to diminish the impact & seriousness of litigation, but to the lawyers, it's a business, and they treat it as such. I do think SOME amount of compensation was in order. Personally, I'd hope that most reasonable people would think it about right to consider the cover as being more or less equal to a single song, on the album, and thus represent that percentage. The problem is, according to him, he didn't want money in the first place, he wanted the whole thing to have never happened. Can't put a price tag on that. That's not greedy... that's pissed. If you take the statement at face value - that he never would have licensed the photo in the first place - then he'd actually prefer to NOT have the $32K, and to turn back time. Like Cher. If you truly believe that's what he feels, a lot of the comments about greed and proportionality aren't as relevant... Well, they didn't end up going to court... I'm just speculating, here, but I don't think they thought that they would, either. A cease and desist would have made complete sense if the album were free, and I hope that's what they would have done... if the album were free. When you start selling "fan projects" for $$$, I think you DO cross a bit of a threshold away from them being fan projects and towards a more commercial realm. No one's (??) saying Andy's greedy for selling the album as opposed to giving it away, right? But along with entering that realm come a lot of obligations, politics, drama, etc. Personally? No thanks.

Yes... and no? As mentioned, he's said he wouldn't have licensed it at all. For any amount, ostensibly. He loves the photo so damn much that he doesn't want commercial derivative works out there, at least of this fashion. Just to be 110% clear, we're all saying that he simply should NOT have that right, as an artist? That NONE of us should have that right? Regarding being greedy, I honestly doubt he gives a shit, if as also mentioned he's sitting on $50 million+ in real estate. $32K is chump change to people like that. Wouldn't that be nice? So I just want to be clear... people saying he's a greedy asshole are saying that no artist, anywhere, should be able to exert control over commercial derivative works, and also that multimillionaires who settle for $32K are ecstatic about the goldmine of cash they're getting? Something seems slightly off... I'm not saying he's not an asshole - I really don't know that for sure. He could just be... peculiar. Eccentric. Aspergers. Who knows. Are Led Zeppelin assholes for not licensing their music for inclusion in Guitar Hero or Rock Band? Same as this photographer, they look down on their work being used in that context, PERIOD. At least so far. Shame, because I'd LOVE to play Kashmir or Black Dog in RB4. But I'm not prepared to label them assholes, and the situation seems comparable, albeit sans litigation. I'm not saying he's not greedy, either... Perhaps, even with his millions in Real Estate holdings, he spends every waking hour trying to squeeze money out of anyone and everyone, and takes Scrooge McDuck money baths in his winnings. But it seems at least POSSIBLE he just really didn't want his work used this way, didn't much care about the money, wanted to prevent it from happening again, and authorized his lawyers to do what it took. I doubt he oversaw the process or micromanaged, but what do I know... maybe he was there at every step, cackling maniacally and rubbing his hands together in anticipation of the thousands of dollars to come... Not admirable, because it's unnecessarily litigious. But I do wonder about the extreme certitude so many seem to have about the "greedy" and "asshole" labels... and I wonder if he were poor and Andy were rich, if we'd feel the same. Or if he were an individual and Andy were a corporation... Am I missing something?

In the absence of Fair Use, any criticism, satire, parody, or educational utilization of ANY copyrighted material would be de facto infringement. Modern discourse would be severely crippled. If that's the type of clarity you want, you're welcome to it; sounds pretty crap to me. Yay for thinking things through to their logical outcome? Since you proposed no viable alternative, that's the implication. It's protective without going to court. It's protecting us right now. Can you feel the warm tingle in your pants? That's Fair Use. It protects every single Wikipedia article you see with an image that falls under Fair Use. It's not really that a court case is required for it to be protective - we enjoy its protections every day, we take it for granted - it's just in order for it to be protective AGAINST LAWSUITS, yes, a court case is required. That's how the judicial system works. Your example about speeding tickets is actually factually incorrect, depending on the nature of the speeding it's either an infraction, in which case you don't need to go to court, or a violation, in which case you do. I think you're also way off the mark in that most copyright lawsuits are CIVIL matters, NOT criminal, and thus either take place in civil hearings or are settled, as in this case. It's not "The People vs. Dude Who Copied Kind of Blue Cover", it's between private parties, and so the type of elegant, speeding ticket simplicity you're so wanting & craving is more or less a pipe dream. Listen.... do some reading. You're not awful at reasoning, but... read the above paragraph I just wrote like, five times over. Let it sink in. Marinate in its corrections. Do some basic Googling and what not. Due diligence.

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Unless I missed something, you just completely agreed with me. Which is cool cause no one else is particularly interested in this thread. I'm fairly sure there are worse laws, and since OCR couldn't really exist without Fair Use, I'm going to say that the grayness of its wording is outweighed, and then some, by its value to our culture. But of course, I suppose I'm biased. What's weird is, Andy said he thought he had a "very strong" case for Fair Use, but in almost the same breath, criticized it for not being protective and clear enough. In order for it to be protective, you need to go to court, but I'm confused how it could simultaneously be problematically unclear and yet clear enough to suggest to him that he had a very strong case, in this instance.

You're really, really abrasive... borderline trolling; you know that, right? I can tell that YOU think you're making excellent points... The bottom line is that I think it would have made a very weak fair use argument in court; we'll never know for sure, since he settled, which was probably wise financially, either way. With regards to commentary, others were claiming it was protected as commentary, more or less because Andy said so, hence my statement. I obviously think Fair Use is vital, otherwise I wouldn't be chiming in to defend and explain it. I look at case law and I see courts honestly trying to uphold the spirit of the law, which is to allow for flexibility within the copyright system while not entirely subverting its purpose. There is a necessary nuance - these aren't easy questions. Since you assume that the countless lawyers, judges, and politicians who have crafted & interpreted Fair Use over the years are all mental midgets next to the clarity of your own cognitive powers, I'll counter your softball with a hardball: Rewrite Fair Use to be completely deterministic and involve no subjectivity whatsoever. While you're at it, do the same with our submission standards. I'll see you in... never.

This is one of those instances where I don't even know why I'm responding... but others might be interested, I suppose. That's entirely NOT what I was saying, I don't know why you put it in quotes, it has nothing to do with anything, and "trust" doesn't factor in. Courts ultimately decide what is or isn't fair use, and they do it based on evidence, which may include testimony, which would be under oath. Innocence is always presumed. The criteria for fair use are evaluated and weighed. There's no magic formula. Precedents help establish interpretation, including the nature of what constitutes commentary. Generally speaking, commentary is discourse - work ABOUT another work - and this isn't really that. It's not good enough to simply claim something is commentary, you need to at least attempt to actually prove it, which would involve looking at how a work was marketed, how it was perceived by its audience, etc. Nowhere in the marketing for Kind of Bloop did I see anything remotely suggesting it was intended primarily as a commentary on Kind of Blue; it is a cover album. I'm pretty sure it's meant to be enjoyed, on its own, as music, unless I really missed something. In some sort of cosmic, karmic, poetic sense, you can consider that a commentary, I suppose, but that's not what's intended by the fair use clause - it's a bit more specific than that. Note that if you find yourself using the word "bullshit" too often, consult a thesaurus or reassess your reasoning. A law that requires precedent and careful evaluation isn't necessarily broken; a more rote alternative would probably be far more restrictive by default, so we should all probably be very glad fair use is worded as such, when it comes right down to it. As mentioned, a long history of case law helps expound on the different meanings of the criteria, and while the track record isn't always 100% transparent, I think you'll find most cases involve far more nuance, and evidence, than your "he-said, she-said" scenario. Well, there you go. Stop studying politics and start studying law instead. Flip this on its head for a second.... if Activision took artwork from some guy's deviantart profile, did a pixelated version that was easily identifiable as the same image, used it as the cover for Call of Duty 9000, and made a gazillion bucks, odds are the gaming community would be up in arms. And rightfully so. The inequity here is not the law itself, but rather the financial ability to fund a defense, or offense. That particular inequity extends to plenty of other legal situations, and doesn't speak to flaws of fair use so much as the realities of our legal system and/or capitalism.

It's certainly a response... but in my opinion, not a great answer. I'm not relishing being the bad guy or devil's advocate, here, but this just doesn't strike me as a great poster child for a fair use defense, specifically. I think settling was the right move; I think he would have lost in court. The commentary argument is pretty weak... the clause is designed more to protect criticism/discourse, but in this case, it's an album of Miles Davis covers... with a pixelated version of the same album cover. That strikes me very much as homage/tribute, but not commentary. If that passed as commentary, ANYTHING would, making the clause almost entirely worthless. I believe the intent is more to protect journalism, satire, parody, and commentary ABOUT works, but not works themselves. This album was being sold, commercially, as a tribute to Miles Davis, not a commentary, and to claim otherwise is to cheapen the album itself, as well as the artist I believe it pays homage to. Under the above linked reasoning, I can take any album, ever, and if I license the music, I can pixelate the album art without any sort of copyright concerns, and call it commentary, and say it's protected under fair use. Does that sound right to you? Forget legality, just do a basic, common sense gut check. We were all pretty pissed off during the whole Timbaland chip/demo ripoff fiasco, as well we should have been, but under this reasoning, why couldn't he have claimed fair use, too? Hey, it's just commentary, right? No matter how much we might like chiptunes, pixel art, or Miles Davis, or all three combined, the same reasoning should be applied to both cases, otherwise it's a double standard. People use occasions like these to shit on Fair Use, but it's a powerful addition to our copyright law that MANY other nations outright lack, and part of its power is LINKED to its "grayness". That being said, I really don't think it was designed to protect this type of use, specifically, and I think claiming otherwise is confuddling. Also, judging from recent comments, this is turning into tons of album sales for Andy, so perhaps the loss will be recouped via the free publicity.

Whether the album was great or not (I thought it was a fantastic idea) has no real bearing... In my opinion, the album art was not particularly more or less transformative than the music on the album. If the intent was commercial sale, and the music was licensed to be above board, as mentioned, the album art probably should have been treated the same way, right? I'm not saying the photographer's not being a douche, or that the sums asked for weren't inappropriate, or anything of that regard, I'm just saying, if you look at the album as comprised of two elements - the music, and the cover - the first was licensed for commercial sale, and the second was not, so if you make a fair use argument for the cover... why not the music as well? If you acknowledge that the music needed to be licensed in the first place, and hence did NOT fall under fair use, it seems odd to make the opposite argument for the album art. That's my only real point, but I feel it's worth making, because it seems like music is often treated very differently (MORE scrutiny & copyright concern) than images. My favorite example that hits close to home is video game fan art vs. video game fan mixes. Peeps been submitting drawings of Mario, Zelda, etc. to EGM before the Internet took over, but the second mixes became a thing, everyone was VERY concerned w/ copyright issues. Again, no hate. We talk about fair use a lot here, it's relevant to us, and I'm pretty sure all of us read this article as a damn unfortunate thing happening to a good person. It's just... that doesn't make him right about the law, or fair use, and I just thought the inconsistency between the music being licensed and the image not was worth mentioning. A kickstarter to get him his legal funds back would be awesome; that's the best way communities can fight some of the more unfortunate aspects of our often-problematic copyright & legal system.

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Balls... should have coordinated something, of the big three this is the one I ain't seen. I might be moving that weekend, I'll need to look into it. I wonder if Vinnie will be back from Japan or if Amy or other NoVa peeps are interested...

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Still got time; I'd definitely like to see that idea fleshed out.

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Yeah... it almost looks like more of a shell/application sitting on top of Windows 7 than something more invasive/extensive. Not a bad shell, from the looks of it, but rewriting/upgrading an OS is different from writing a new visual shell, so I'm particularly interested to see what other areas get an update... otherwise, it's less of an OS and more of an application.

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JJT got some Owl City-style vocals; good, concise album with some sort of mix between the former and TMBG and other influences, with some admirable lyrics to boot.

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