Kind of Screwed - Andy Baio sued for 8-bit rendition of "Kind of Blue" photo

[Radiowar]

thought i'd post this for those who remember Kind of Bloop, the 8-bit tribute to Miles Davis' Kind of Blue produced by Andy Baio a couple years back. apparently last year the photographer of the original Kind of Blue album cover took Andy to court over it, and he's made this post on his blog today describing what happened.

it's bullshit obviously but when has that ever mattered. and i feel bad for him, because it is bullshit and because it was a great album, and i guess also i was selfishly hoping for a similar project/sequel to happen somewhere down the line.

maybe some kind of kickstarter fundraiser album project is in order.

[Level 99]

That's just awful. The person who sued Andy, whether it was upon action of the photographer or people who he worked for that get a cut, is a heartless money-grubbing bastard.

A Kickstarter for this is pretty much without question.

[Nutritious]

For those of us who can't get the link to work (for whatever reason), could someone sum up what happened?

[Liontamer]

Andy had an artist create a pixelated rendition of the album art photo of Kind of Blue for Kind of Bloop. The original photographer said it violated his copyright and sued him. The lawsuit would have been too expensive and time-consuming, so Andy, without admitting guilt and firmly believing the transformative nature of the work meant it fell under fair use, nonetheless felt he had to settle the case to get it behind him. It cost $32,500 to settle. The blog is his story of the case, and an informal analysis of fair use, particularly in regards to transformative visual artwork.

[djpretzel]

1. Whether the album was great or not (I thought it was a fantastic idea) has no real bearing...
   
2. 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.
   
3. 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.
   
4. 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.
   

[big giant circles]

Agree with the points Dave made, but would like to reiterate that the photographer is a massive douchebag and I hope karma catches up to his greed. One of my biggest peeves in the world are people who feel justified in extorting outrageous amounts of money for things that are truly not worth the amounts they demand.

Guy makes an 8-bit tribute album, doesn't realize he's supposed to license the artwork: Whatever, the proper and humanly decent thing to do as the photographer would have been to contact him and say "Hi, you used a derivative of our artwork without permission. To obtain a license would have been X amount. Please pay us such." Heck, they could have even thrown a small fine on there. But $150k, then settling on $32k?

And even moreso, look at the intent. This clearly wasn't a malicious attempt to rip off the artist, it was a mere oversight. Recently Disney World settled a case to pay $50,000 ($33,000 to a kid and $17,000 to the parents) because the kid burned his lip on hot nacho cheese. I'm not trying to get too deep into this particular case by pointing out all the factors involved and whether Disney was at fault or not, but let's face it, the amount they sued for was exorbitantly high if Disney had to settle on $50k. By the way, the medical bill was under $500 and the kid has recovered fully and needs no continual medical care.

Greed is just one of the things I hate the most about this world we live in. People have done and will do awful things for money. They will ruin someone else's life in a heartbeat if it means some padding for their wallet. I guess reason and empathy are things that most people really truly don't possess. Disgusting.

Anyway, I'm definitely in favor of a kickstarter for Andy. And maybe another one to hire a plane to fly over New York with a banner that reads "Jay Maisel is a greedy douchebag".

*edit*

I can't say the Facebook wall-lynching surprises me haha - http://www.facebook.com/jaymaisel. Worth nothing I suppose, Andy does not approve of it, he's taking the high road. http://twitter.com/#!/waxpancake/status/83965389075267584

*moar edit*

Dear Jay Maisel,

Hi there, I just wanted to tell you that you've taken some great pictures in your career, and I particularly appreciate you capturing what many people believe to be such a great picture of me, it truly captures the passion and love for my art, my music, my soul. But then I find that you recently took a young man to court over his re-imagining of these things. Seeing as it is my face and my image directly involved, I cannot help but be alarmed that you would capture such a seemingly poetic moment in the name of art, but then deny someone else the opportunity to do the same, and at no real threat to you. I'm awfully disappointed in you, Jay. Let thieves be thieves, but let artists be artists.

Regards,

Miles Davis

*for clarification, the above is not an actual quote (should be obvious haha), but rather what I personally envision Miles Davis's reaction might be to this matter.

[Liontamer]

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.

He answered this: http://twitter.com/waxpancake/status/83928854581874688

http://www.picturepundit.com/2011/06/23/andy-baio-vs-jay-maisel-in-a-fair-use-case-my-quick-question/

[JackKieser]

Hmm... copyright law is allowing people to do stupid things in court to good people just trying to make art?

I would have never guessed.

When are people going to wake up and realize that this kind of legal stupidity isn't going to go away without serious and comprehensive reform that looks to the future, instead of to the past?

inb4shutupjack

[The Derrit]

shut up jack

[djpretzel]

He answered this: http://twitter.com/waxpancake/status/83928854581874688

http://www.picturepundit.com/2011/06/23/andy-baio-vs-jay-maisel-in-a-fair-use-case-my-quick-question/

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.

[Dyne]

I saw this earlier too. And I agree with both DJP and BGC.

[Radiowar]

haha didnt take long for someone to get to Jay Maisel's wikipedia page damn

[JackKieser]

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?

What's so wrong with that? Are you worried about people *gasp* lying about their intentions and claiming fair use? "Commentary" is, kind of by definition, a meaningless term in this instance, anyway, since the only person who can make a claim to whether something is a commentary or not is the person who's also getting sued for copyright infringement.

If I take something, say a photo, and I want to comment on how funny I think this one part of the photo is (say, the nose of the guy in the picture) so I digitally manipulate the picture to give the guy an even bigger nose, then take that picture and use it in a comedy routine, and sell it as merch after the show, is that infringement or protected action? I'm probably protected under fair use because most people consider comedy to be commentary.

What if I just sold the picture? My intention is the same: to highlight this one dude's comically large nose using a well-known picture. Or, what if it was just a photoshop job I did to practice using photoshop, a picture that hapened to sell on my deviantart page.

Who is going to say what my intention is? Commentary or not, the only person who can make a claim is me, since I'm the guy doing the photo manipulation. What DJP is basically saying is "you can't trust the guy in the defendant's chair", which is:

A ) bullshit, if the guy is under oath.

B ) bullshit, since it assume guilt before innocence.

If we have a law, and that law is so broken that we can't even tell when it applies and when it doesn't without bringing up 4th grade "he said, she said" bullshit or without one lawyer having to blurt out "Objection, obviously the defendant is lying, your honor", then the law is broken and needs to be scrapped or re-written.

With the law we have now, either we trust that everyone who claims commentary is telling the truth (and thus everything claimed as commentary is automatically fair use), or assume that no one is telling the truth (and all commentary claims are automatically deemed not fair use). Obviously, I'm cool with allowing people to just claim commentary, because if we are stupid enough to have such an indiscreet law on our books, we deserve to see it abused.

...the more and more I study politics, the more and more I'm convinced that all politicians who have pens capable of writing laws should be strapped to a desk and forced to read Sirlin's "Playing to Win".

[djpretzel]

Who is going to say what my intention is? Commentary or not, the only person who can make a claim is me, since I'm the guy doing the photo manipulation. What DJP is basically saying is "you can't trust the guy in the defendant's chair", which is:

A ) bullshit, if the guy is under oath.

B ) bullshit, since it assume guilt before innocence.

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.

If we have a law, and that law is so broken that we can't even tell when it applies and when it doesn't without bringing up 4th grade "he said, she said" bullshit or without one lawyer having to blurt out "Objection, obviously the defendant is lying, your honor", then the law is broken and needs to be scrapped or re-written.

With the law we have now, either we trust that everyone who claims commentary is telling the truth (and thus everything claimed as commentary is automatically fair use), or assume that no one is telling the truth (and all commentary claims are automatically deemed not fair use). Obviously, I'm cool with allowing people to just claim commentary, because if we are stupid enough to have such an indiscreet law on our books, we deserve to see it abused.

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.

...the more and more I study politics, the more and more I'm convinced that all politicians who have pens capable of writing laws should be strapped to a desk and forced to read Sirlin's "Playing to Win".

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.

[JackKieser]

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.

I put it in quotes because it was a paraphrased summation of your argument; the quotes helped separate it from the rest of the sentence for easy reading. And, based off of your post, it's an accurate summation, because one of the first things you said was, again "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?". You're assuming that the person using fair use in such a manner is doing it disingenuously... also known as lying. You're basically saying that anyone who uses the "commentary" defense could be lying... not necessarily that they are, but they could be, and that it poses a problem to the integrity of the law.

The problem with that is that everyone could always be lying. It also plays into another problem with fair use defenses: ease of proving intent. How do you prove that your work is commentary or not? By testifying? The law doesn't state that fair use is intended only for "good" commentary, so if I roll up into court with a commentary defense and the commentary I'm trying to make is really bad, I could still get slapped down, even though I am making a commentary (just a bad one). See how subjective this is? Murder charges are not subjective: did you or did you not kill a man? Fair use, especially commentary, is very subjective, and it makes it a bad law.

So, you bringing up that a person could potentially get away with a commentary defense by, essentially, lying and claiming commentary where there is none, plays directly to how much importance you yourself put on testimony in fair use trials (since, if testimony is only a small part and physical evidence is worth more weight, one could not, as you posit, roll up into court with a shoddy commentary defense and win).

Note that if you find yourself using the word "bullshit" too often, consult a thesaurus or reassess your reasoning.

Repetition is an element of writing. It was done on purpose.

A law that requires precedent and 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, then your "he-said, she-said" scenario.

We should all be thankful? Don't make me laugh! A well-written, well worded law could protect just enough copyright to be fair and be discreet enough that any individual citizen with a little common sense could figure out whether the law applied or not. This is a shoddy law. If you accuse me of murder, we both know exactly what needs to be proven in order to convict me: that I held the murder weapon and used it to kill the victim. What does it mean to "perform commentary"? What does it mean to be "transformative"? What is a "substantial" amount? All of these terms are so loosely defined that even lawyers don't know before a trial what is or is not fair use; that's why so many cases are settled out of court: because people can't figure out for the life of them if they even need to be in court in the first place!

Well, there you go. Stop studying politics and start studying law instead.

No thanks; I think I'll just stick to writing and philosophy. I like having a soul.

Flip this on its head for a second.... if EA 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.

Depends. Is Activision making a commentary using the boxart? How transformative was it? What was the intended message? What was the original copyrighted work?

You're implying that you can't make commentary using boxart; that's kind of presumptuous, don't you think? So, no, the gaming community would NOT be "rightfully" up in arms if Activision did that. And, no, the problem here isn't JUST that those with money can outfund those without, because if the law was a good one, there'd be no contention about this issue; either he'd be wrong, and know that he fucked up in using someone else's copyrighted work (in which case defending yourself in court is lying and misrepresenting the truth in the hopes that the jury sees it your way), or he'd be right and the original photographer's lawyers wouldn't have ever sued him anyway because it'd be clear that they'd lose in court.

If Fair Use law was written well, we wouldn't have these issues. DJP, here's an easy, softball question for you: do you think Fair Use is a necessary component of copyright law?

[The Damned]

Whoa... Jack arguing against people that know the law better and can formulate proper responses to his comments.

This is very deja vu-ie.

popcorn.gif

[Brushfire]

popcorn.gif

l AM PRESENT!!

[djpretzel]

If Fair Use law was written well, we wouldn't have these issues. DJP, here's an easy, softball question for you: do you think Fair Use is a necessary component of copyright law?

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.

[Brushfire]

When DJP comes in, he comes hard...

[Monobrow]

I hate you for these times of vaguely sexual descriptions.

Also after reading his Wiki, that dude is fucking rich. It pisses me off so much when the rich dude sues the little dude, law aside.

[JackKieser]

You're really, really abrasive... borderline trolling; you know that, right?

What? Me? I'd never troll.

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.

Well, we agree on that; unfortunately, it would take more money to prove that he was in the right than it would to just settle.

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.

Well, that's probably the issue here; Fair Use, by it's very spirit and definition, is a subversion of copyright law. Fair Use is a mandate to say, in certain circumstances, that copyright law should be broken. It is ok, considering certain factors, to allow certain people to break copyright law in the pursuit of creating certain works. That's what Fair Use is. You can't have Fair Use without subverting copyright law in some way.

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.

You think you can troll me back? Fair Use, by it's very nature, cannot ever be deterministic and objective. I can't rewrite it to be what it cannot ever be. I asked you if you thought Fair Use was necessary for a reason (though you didn't play ball): to get a rational reason for why copyright law can't exist without it. The fact of the matter is that copyright law can't exist with it. Fair Use, as a law, is flat-out terrible. Copyright law could be written very simply, very discreetly: (excising all of the legal mumbo-jumbo) if you didn't come up with the idea, you don't get any of the profit. There is a simple test for copyright claims: prove you came up with the idea. As far as our current system goes, that simply means "show the judge your copyright registration". Fair Use is nowhere near that discreet; it has so much "nuance" that it becomes meaningless; literally anything, given the proper context, could potentially be Fair Use, which is why it's so impossible to actually defend in court: because defending a Fair Use claim requires proving a bunch of subjective stuff that may or may not be true... or may or may not even exist in the physical world! You can't, as of now, register "intent" with the government.

Fair Use undermines copyright law, plain and simple. It makes copyright law harder to enforce, and it wastes people's time and money by giving non-copyright holders hope when, over here in reality, copyright holders (especially ones with tons of money) usually just force a settlement out of court, just like with this case, due to high legal fees and uncertainty about who is really justified.

Fair Use is a great idea. The English language is not capable of describing it clearly enough to allow it to be wholly compatible with current law. And, honestly, it's just a burden to the system, a burden that copyright law doesn't NEED to have; copyright law can exist without Fair Use.

Now, of course, without Fair Use, you'd have a complete permission culture, in which creativity was the sole jurisdiction of those fast enough and with enough money to utilize the legal system it their advantage... but oh well. That's modern law for you. ^_-

While you're at it, do the same with our submission standards.

No need; your submission standards aim to judge artworks, something inherently subjective. Until the day "art" has an objective meaning, your submission standards will have to remain subjective and arbitrary in nature. So, I guess... have fun redefining "art" in an objective manner? Not like it matters.

I'll see you in... never.

Wow, someone's salty. On an unrelated note, posting here is fun. I love copyright threads; they are inevitable and always full of lulz.

[djpretzel]

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.

[drake7707]

I'll just leave this absolutely unique creation here

(of course big whoop reference to this)

In all seriousness, both have a point and it's certainly not the first time someone sued someone because it looks similar or is based on the original product.

I think it depends how people view it, if they see it as a reference to the original (like remixes) and there's no loss of income from the party that made the original it should be fine. If however people think the original is a derivative of the adaptation, I can understand that they won't like that at best.

[JackKieser]

Unless I missed something, you just completely agreed with me. Which is cool cause no one else is particularly interested in this thread.

Yeah, you missed something. We agreed that Fair Use is a nice concept, but you said it's a necessary concept, and that it's nuance is part of it's strength. I explained that it's not necessary at all, that in fact it makes copyright law as a whole worse, and that it's nuance is what causes all of it's problems.

So, not really agreeing with you. Don't know where you got that from.

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.

To be fair, you don't know if OCR could exist because of fair use or not, because it's so badly worded that no one can figure it out. OCR assumes that Fair Use is on it's side because, like you said, you're biased (you and the members of OCR want it to be so)... but in all of the copyright threads I've ever posted in, every time OCR's relation to Fair Use has come up (and it's been many times), not a single person could point out the way in which Fair Use directly protects OCR any better than how this one guy claimed Fair Use protected his album cover. Again, it's because Fair Use is non-explicit in its crafting; what does it mean for a mix to be "substantially" transformative? What is the market effect of your free mixes relative to actual OSTs?

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.

Let's look at Fair Use's clearness as a spectrum:

|---------------|---------------|

Clear Not Clear

Fair Use, in theory, could protect this guy no matter where on the spectrum it lands in relation to clarity; it would depend on the wording of the law. What clarity actually determines is not whether or not the law actually protects you as an artist in any instance (that is a binary value, 1 or 0, and not a spectrum; Fair Use can't kind of protect you, either you're protected or you're a criminal), but the relative risk associated with you going to court. Andy may be fairly certain he could defend himself, but depending on where the law falls on the clarity scale (and I'm arguing, it's pretty far to the right, so far that it's meaningless), could be unsure enough that going to court is too risky. The risk factor does not affect whether or not you are actually protected (again, that's binary and only peripherally related to clarity), just your chances of communicating that protection to a courtroom.

Long story short, if a law isn't so clear that you know you're protected by it even before going to court, then it's not clear enough... and Fair Use is not clear enough. This argument of, "In order for it to be protective, you need to go to court" is bullshit, and not how laws should work. I don't have to go to court to know if I'm speeding or not, and I shouldn't have to go to court to know whether I'm infringing on copyright or not.

[Level 99]

OCR provides interpretive works, while giving full credit to the original composers and game creators, distributed for free. So, in fact, it is free advertising and creative arrangements available for no cost to anyone anywhere except the bandwidth, which we pay for via donations. Despite Fair Use's ambiguity, it needs to be as such because there could be billions of cases that are different and not one universal Fair Use clause could cover them. Fifty couldn't. A thousand couldn't.

Case in point: the photographer was most likely in his right to sue for use. It sucks, and the guy is definitely a dick who lives in a 72-room mansion, but it was in his legal right most-likely. He'd need a very solid case for not licensing the art if he licensed all the music. If he inquired and the guy said he wouldn't license, it was really stupid to go ahead and do it anyway. It is possible that it just slipped his mind, but this is what happens when you don't cover every angle airtight. He was just unlucky enough to get a huge douchebag who owned the rights.

The same way the Westboro Baptist Church shows the worst side of Free Speech, so to does this show the worst abuse of defending copyright against allegations of Fair Use, and without the satisfaction of a trial. Sucks, and yes as I've said, Maisel is a total asshat, but yeah.