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Tuesday, 12 July 2011


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Dear folks,

I would mention that Terry hart's legal analysis at copyhype that Jeremy recommended, (http://www.copyhype.com/2011/07/kind-of-bamboozled-why-kind-of-bloop-is-not-a-fair-use) is really excellent. Anyone who actually cares about this professionally should go read it and bookmark it for future reference.

pax / Ctein

And that (among other things) is why I subscribe to TOP: You try, in a very human way, to give both sides a fair shake.

Humph, these educated, world and internet savvy guys who think it's ok to snag some guy's (iconic) image, dilute to a VERY recognizable image which includes, basic form, feel and composition and then say that they thought they were within the rules?? C'mon, it's straight up thievery, nothing more and it stinks..

Wow. My jaw just dropped off through the floor into a basement reading that… Just wow.

Ctein's link brings back to mind Fairey's Obama poster. It would seem like the purpose of the poster (something that hoped to inspire) is totally different from the purpose of the photograph (an objective news photo). Does or doesn't that make it fair use?

But in the end, lawyers always win. "Baio chose not to defend his use as fair in court because of the cost of litigating, but lawsuits are expensive for both parties."

Beginning in 2006, I've worked hard to spread the "meme" of villagers bearing torches and waving pitchforks. It pleases me when others use it, too.

In 2006 I learned by accident that a professional forum discussant (and inveterate "fisker" - something I love and use judiciously) took our thread into a different, non-professional forum and whipped up a frenzy among his coterie. I didn't know the other forum, and I only learned this when its participants contacted me by phone and e-mail. (I'm incredibly easy to find if you know my name or my work.) While patiently corresponding with them from my weekend home, I finally realized they were *not* members of the professional forum.

Much to my delight, the discussant's success creating a frenzy went hand-in-hand with his frustration that some participants in the non-professional forum *still* disagreed with him. He turned his "fisking" on them. I considered alerting the owners of the professional forum of his violation of their rule about confining discussions to their forum. Instead, I only disengaged from him, content to pay the price of my credibility on the professional forum.

Happy to talk with working professionals - as distinct from every internet jackass with a bee in his bonnet - I promptly rolled out a nom de internet held in reserve for more than a decade, Andre Friedmann. YMMV.

Thanks for posting both comments. I hadn't read Baio's response, but it makes it clear that a journalistic tone can hide some very bad "journalism". For Nicholl to just pass on the roommates comment without verifying it was not a good idea.

Dear toto,

I'm really, really sorry the Obama/Hope case didn't go to trial because it DOESN'T have a simple answer. It sits absolutely smack dab in the middle of the grey area with plagiarism on one side and inspiration on the other.

By the best legal analyses I found, it was a tossup. There are a whole bunch of legal questions you can throw at an artwork to help you decide if it's plagiarism or not. This one split it right down the middle-- as close to a 50-50 score as you'd ever see.

That makes for wonderful case law-- those sorts of precedents clear out lots of grey.

And then Fairey had to go and screw his own case, making this all moot.

A great opportunity to get some clarifying case law lost. Sigh.

pax / Ctein

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