This is an absolute must-read account by Andy Baio, who was threatened with a lawsuit by Jay Maisel, photographer of the Miles Davis photo on Kind of Blue, which Baio had transformed into pixel art for the cover of his 8-bit tribute, Kind of Bloop. Goddamn terrifying murky waters of fair use that some of us swim in. Go read it: it’s every artist’s nightmare.
There are a lot of myths and misconceptions about “fair use” on the Internet. Everyone thinks they know what fair use is, but not even attorneys, judges, and juries can agree on a clear definition. The doctrine itself, first introduced in the 1976 Copyright Act, is frustratingly vague and continually being reinterpreted.
Four main factors come into play:
- The purpose and character of your use: Was the material transformed into something new or copied verbatim? Also, was it for commercial or educational use?
- The nature of the copyrighted work
- The amount and substantiality of the portion taken, and
- The effect of the use upon the potential market
…In his influential paper on fair use, Judge Pierre N. Leval wrote, “Factor One is the soul of fair use.” Stanford’s Fair Use Center asks, “Has the material you have taken from the original work been transformed by adding new expression or meaning? Was value added to the original by creating new information, new aesthetics, new insights and understandings?”
Seriously, go read. Sorry this happened, Andy. Thanks for sharing with the rest of us.
Kind Of Screwed.
