A photo of a sculpture is in no way a substitute for the sculpture.

The pixel art is in no way a substitute for the original photo, either.

Not at all. ALL architectural works constructed after 1990 are now copyrighted in the U.S., so any photography of any vaguely new buildings/structures is an infringement. (Sculptures have long been protected.) Give it another 50 years and it won't be possible to legally take a photograph outdoors in any location where humans have built anything.

Since I'm certain people will downvote or post snarky "CITATION???" comments without googling, here's your preemptive cite:

http://en.wikipedia.org/wiki/Copyright_in_architecture_in_th...

Total misunderstanding of how copyright in architecture works. If you build a new building, I can't copy your design and build an identical building across the street. But I can take all the photos I want of it. From _your own link_:

"First, when a building is ordinarily visible from a public place, its protection as an 'architectural work' does not include the right to prevent the making, distributing, or public display of pictures, photographs, or other pictorial representations of the work. The architect will not be able to prevent people from taking photographs or otherwise producing pictorial representations of the building."

I've heard of lots of times where photographers were threatened by security, even police. I've also heard of many cases where they were able to show that the photography WAS legal, and were left alone. Just because police/security says something is illegal, it doesn't make it wrong. That's why we have courts, although unfortunately going to court can be risky and expensive, even when you're right.

And yes, it's utterly disgusting.

I don't know about the other examples, but the Rock Hall lost that battle:

http://www.gentilephoto.com/html/bio_frame.htm

As it happens, I live nearby, and I've used my big black camera and tripod on the premises many times without incident. The security guards have always been friendly to me.

I think the overall trend of wealthy organizations and individuals attempting to broaden their intellectual property holdings this way is a symptom of the way high litigation costs result in asymmetric access to the legal system. The Rock Hall (or Jay Maisel) can afford to litigate forever. I'd be utterly ruined by even a single lawsuit.

It is an annoyingly 21st-Century notion that one's original work must be free-for-all and a commodity.

I believe today's works are more complacent about this. The artists understand that their work is supposed to pay them one time, that is, they receive their payment as agreed before starting it. If their work suddenly goes far beyond its initial goal, they will get bonuses of fame but rarely direct payments of their work showing up everywhere. Not-artist people usually don't even care.

mortenjorck made an incredibly insightful comment.. Why do you feel the need to pull him into a debate that has no possibility of ever coming to any kind of resolution.

Not every comment needs a fucking counterpoint or a "citation needed" or a "can you give me an example?" or a "how would you solve the problem?"

Anyone can make an observation that things are broken (though perhaps not state it as succinctly), but coming up with a solution is both more interesting and challenging. If HN never moved into that stage, every story could be summed up in one or two comments, and it would basically just be a link aggregater.

I disagree that the question (and thus, the discussion) are pointless though. I find both participating in and reading through these discussions valuable, as they make me analyze my viewpoints, as well as introducing me to opposing viewpoints I hadn't necessarily considered. For example, the poster who felt "an artist has the right to choose how their work is used" in this thread made me consider how I felt about that. I don't think I'd like my work to be turned into something I hate, but I'm not sure if that means I have a moral right to stop it.

Obviously, this discussion comes down to personal opinion on an artist's rights, but I can't say I've really closely examined what I think. We may not all agree, but some of us can come to a better understanding.

I don't have a solution, by the way.

2) Free as in beer

3) A social structure where it is about ego/glory rather than money

Btw ... this is loosely how academia works. Most scientists are in it for the thrill of discovery and glory (we know we can get paid better elsewhere). We kill ourselves trying to get papers at the top conferences - because that gives us and our work the highest visibility. We mostly give away our knowledge for free (this is contentious because of high undergrad tuition and patent happy universities - that said, this doesn't directly go into the scientists pockets).

An excellent related quote (I think from Liar's Poker): Money doesn't matter. That's just how we keep score.

Academia is essentially the same. Replace money with # of citations, journal prestige, h-index, etc.

"What? You repeated my groundbreaking study!? I'll sue for crushing damages! Clearly you've damaged my reputation!"

------ heh:

Plaintiff Lawyers: "Right, we're suing you for personal damages of $150,000 per article printed!" Defence Lawyers: "May I remind you that our client is a scientist?" Plaintiff Lawyers: "Right, we're suing you for personal damages of $150 total and perhaps some cheap coffee"

I want to begin by explicitly letting you know that this is not an attack on you, but rather a suggestion that is applicable to many, many HN members.

Being wrong is not a crime. If you happen to be wrong some time, it is better to admit your mistake than to try to twist your original words to be right from a certain point of view.

The need to always be right, to argue until some point of view can be reached where you are established as right, is just ridiculous and unbecoming. I struggle with this, too, because I'm far from perfect, but letting go of that "need" is a big step toward more productive conversation.

In this case, the settlement may be the result of the court existing, but that does not, in any way, mean that the court figured it out.

Le droit d'auteur, vraiment c'est pas possible. Un auteur n'a aucun droit. Je n'ai aucun droit. Je n'ai que des devoirs. Jean-Luc Godard.

(Copyright, really, that isn't possible. An author has no rights. I have no rights. I have only duties).

Le livre, comme livre, appartient à l'auteur, mais comme pensée, il appartient - le mot n'est pas trop vaste - au genre humain. Toutes les intelligences y ont droit. Si l'un des deux droits, le droit de l'écrivain et le droit de l'esprit humain, devait être sacrifié, ce serait, certes, le droit de l'écrivain, car l'intérêt public est notre préoccupation unique, et tous, je le déclare, doivent passer avant nous. Victor Hugo.

(The book as such, belongs to its author, but as a thought belongs - the word isn't too vast - to mankind. All intelligences have a right to it. If one of two rights, the writer's right and the human mind's right, should be sacrificed, it would surely be the writer's right, because public interest is our unique preoccupation, and all, I declare it, must pass before us).

Why? You seem to think you have scored a point by using "should" and uppercasing THEIR.

I disagree that how THEIR work is used "should" be the artist's choice. The artist's choice is in whether to release the work, and then whether to use applicable copyright laws to control distribution of derivative works for the duration of copyright.

The question, really, is "Is this pixel-art thing even the same picture, legally speaking?" And the answer is: "We'll never know, because a legal decision is too expensive for one of the parties to obtain."

The real story here isn't 'unreasonable artist sued me' but 'lawsuits used as scare tactic'.

The real, real story here is, as the author asks, where do you draw the line? Personally I don't think the author had much of a leg to stand on given that the image was being used to sell an album and was easily recognizable as a simulacrum of the original work.

This tiny project doesn't threaten his firmly established reputation or commercial interests in any way. The audience is severely limited and the pixelated image has only appeared on the cover of an even smaller number of physical CD's and otherwise was simply displayed on the website as the visual representation of the music. For which it was incredibly appropriate. It wasn't used to 'sell the music': you couldn't even buy that pixelated image.

Maisel should allow a thousand of these tiny suns to bloom, even if that requires a thousand of his photographs to be pixelated and use in tiny projects that make a few people happy. All analogies are off, specifically because Maisel is in a supreme position to ignore all commercial and legal interests. That makes his legal action petty and unartistic and makes the world a worse place.

Yes. What's wrong with starting off with a polite note? Are you really backing the plaintiff's starting demands for $150,000 per use as a reasonable request?

So... down with fair use?

Everything created is copying something else in same way or another. An artist that expects complete control over their work is more than just delusional in their expectations, but also ignoring how their creation is riffing on previous works by other people.

For the original photograph? Yes, of course.

For a derivative work, which the pixel-art reproduction clearly is in my mind? Of course not.

But this looks to me like a very low-resolution duplicate. Only on inspection do I see elements that say "pixel", and these aren't particularly important or interesting. All the examples cited by the OP are considerably more different from the original than the image in question.

To get more clearly into the category of "fair use", I would think the art would need more significant differentiation. To an unexpert eye, these might be things like: - Variation of the palette into something typical of an NES game - Revisit the perspective to make it more two-dimensional, as an older video game would (the image clearly depicts Davis at an angle in a way we wouldn't have expected in an 80s game console) - More exaggerated usage of "pixelized" elements - Introduction of elements / themes /motifs from other pixel art pieces - Turn the image upside down, put curious, "where the hell am I?" look on Davis' face - Pixelized chipmunk - Pixelized Thelonious Monk

If the idea here wasn't to invest a lot of time into the image itself, and have some that plays the marketing role of 1950s cover art, then do something evocative but more clearly distinct.

Finding the line between "derivative" and "creative" is not a computable problem. But it gets a lot easier with the quality of the art. But it seems to me the photographer has a point. Especially when I consider that the image real does look like a low-res JPEG -- if he tolerates that, the next question will be the difference between this and an actual low-res JPEG.

Now, could he have been nicer about it? I would certainly think it better to start with "hey knock it off". But maybe I don't everything that went before the settlement.

I see this as being not that different.

It's completely different. Look at clauses 1 & 4 of the Copyright Act as sited in the article. The spirit of this 'derivative work' concept rests on the contribution of the derivative work to the general state of the art (does it add anything?), and the effect on the existing works (does is take food out of the original artists's mouth?).

Taking source code and recompiling it and redistributing it without making any contribution yourself is completely outside the idea of a derivative work. Even modifying it in some significant way, if it deprives me of my livelihood, probably doesn't work.

Pixelating a Miles Davis picture is absolutely a derivative work, especially as an adjunct to an 8-bit rework of one of the man's albums. There's no substitutability at all between this pixelated version and the original picture - it would have exactly 0 (zero) effect on the demand or availability of the original photo of Davis.

To me, simply taking a picture someone else took, and digitizing or pixellating it, is not something that I would consider "derivative". I liken it to sampling music to be used in a "derivative" work. In the vast majority of those cases, the samples have to pass through the proper licensing and be released for use before they are resold.

Yes - and I'm against requiring licensing for music resampling as well. The test should be substitutability and contribution, not establishing arbitrary control over the way intellectual property is allowed to evolve and who is allowed to reshape it.

Say you're a game programmer and you wrote an addictive platformer for the 486-era IBM PC. It's a game that brings warm nostalgia to the average 30-something gamer. It's the best game you ever wrote, but a lot of time has passed since then.

Some guy comes along and writes a remake for the ZX Spectrum 48k and releases it for a nominal charge. How do you feel? What can you do?

See my other comments for why these kinds of analogies are too far off to make a useful point.

The only thing the artist may be protected from is duplication for the mere purpose of profit, not further cultural benefit.

Thus everyone is free to make derivative works, so long as they're not so closely associated with the original that its considered mere duplication.

Duplication, if not for profit, can be allowed for individual consumers but not businesses.

---

I think writing off this admittedly socialistic view on artistic work as "self entitlement" is short sighted.

If an artist makes a work of art and nobody ever pays any attention to it, is the work still valuable?

To a certain extent, the attention that people give to a work of art gives it value (in my opinion). People's attention is a limited resource, one that certain artists fail to duly acknowledge when they attempt tyrannical control over their works. Artists: if you want absolute control over your works, keep them to yourselves and never show them to anyone else, ever (please!). Otherwise acknowledge your debt to the (mostly-free) cultural environment(s) you drew inspiration from and to the public mindspace your works occupy. At least pay back our attention with your gratitude, instead of IP-thuggery.

Why? Seriously, I'm genuinely interested in why you believe this statement should be true. If this were actually the case, there would be no such thing as a fair use defense.

The more derivative a work is, the less it belongs to the original artist. In this case, the work was derivative enough for there to be a legitimate legal case either way. It's easily understood as an honest mistake, though it clearly was a mistake not to check the art ahead of time. It's understandable for the artist to be upset. But it's conflict that reasonable, respectful human beings should be able to resolve without a full-blown lawsuit.

The vengeful attempt to inflict punitive damage on the guy who, at worst, made an honest mistake? That's worse, in my book.

I understand a little under a decade of copyright protection when you had to horse and buggy your manuscript to a printer and they shipped it by train and boat around the nation to salesmen who again went by train or carriage to sell it... But in the world of one-click publishing? A hundred years plus? Really?

The window of protection is now less a window, and more a gaping wound in the side of creativity, as seen here.

As far as the length of copyright (which, I agree, is currently too long), you can thank Disney for that.

Actually up to 120 years in the US.

Do you think Toyota should only permit particular uses of their vehicles? That Dell should only permit particular uses of their computers?

It should be the artist's choice on how their work is released, but beyond that, they can do nothing.

Once an artist has released their work, the details of how it is consumed, how it is interpreted, and how it is used will always be well beyond their control.

Much like a startup must pivot, so too must an artist live in the world within which they create their work.

http://daringfireball.net/linked/2011/06/23/maisel-mansion