A few years ago, Andy Baio over at waxy.org put together a great 8-bit tribute to Miles Davis' "Kind of Blue," which enjoyed a bit of airplay over here at WFMU (click here to listen to the 8-bit cover of "So What"). The album's music was fully licensed from Davis' publisher, but Baio recently had to shell out $32,500 for an out-of-court settlement because of the tribute album's cover art (shown below next to the original album art). You can get the full details of what happened right here, in addition to an excellent overview of Fair Use and some recent examples of other similar cases.
It seems like every few months some story like this pops up and reminds me that the U.S. is in desperate need of clearer guidelines and a stronger legal precedence for Fair Use. The current state of affairs encourages predatory lawsuits, while examples like Baio's case produce a chilling effect on transformative creativity and remixing. Props to the EFF for fighting the good fight in this dept.
I don't need to point out the fact that new art has always been built by borrowing and reinterpreting existing ideas. Or do I?
As an illustrator, I face the same problem with copyrights and image reusage. However, Picasso is quoted as saying: "the difference between plagiarism and genius - is you cannot tell where the genius is stealing from." This is a good rule to follow when in doubt.
Posted by: Detroit Mac | June 24, 2011 at 12:06 PM
Reusage should be unrestricted in noncommercial environments, and presumptively allowed in commercial ones (with a strong burden of proof on the "original" artist that the reuse of the image contributes to the reuser's cashflow) - but credit should always be given where practical. (Something like Girl Talk...credit's not so practical, because there are thousands of borrowed items...but this cover is a simple case: credit the original photographer and designer as source & inspiration.)
Posted by: 2fs | June 25, 2011 at 01:11 AM
c'mon...a clear case of plagiarism...take somebody else's work and overly pixilate? I would sue
Posted by: C_Stei | July 01, 2011 at 02:01 AM
Detroit Mac: where did you find this quote? An apocryphal variant ("Good Artists Borrow, Great Artists Steal") has long been in circulation, which in turn is a distortion of a quote that's traceable to T.S. Eliot:
http://nancyprager.wordpress.com/2007/05/08/good-poets-borrow-great-poets-steal/
Regardless of provenance, pretty different meaning though, no?
C Stei: Not clear to me at all- seems like a significant transformation (even if it is a simple one). You would sue? Do you think photographer Jay Maisel lost money because of this cover? That IS a major consideration in determining Fair Use.
Posted by: JimS | July 05, 2011 at 12:07 PM