1. Just because there is no license available doesn't mean you can just use it anyways.
2. He never asked for the license before using it. Only after he was sued did he ask if he could have gotten a license.
3. It was a commercial product.
4. The "compulsory license" does not give rights to do whatever the person wants with it. From the wikipedia page, it gives the right to rearrange the work but not to change the melody or fundamental character of the work. I know that the remix artists 2 Many DJs were not given permissions to create versions of certain songs. So it is most definitely not cut and dry as this claims it to be.
At the end of the day, he created a derivative work to be used in a commercial product without, as a minimum, even asking for permission.
At the end of the day, he created a derivative work to be used in a commercial product without, as a minimum, even asking for permission.
Asking for permission is absolutely not a minimum for fair use.
Of course, we'll never know if it constituted fair use because, at the end of the day, he who wielded the larger stick forced the result that he wanted.
This was neither criticism, comment, news reporting, teaching, scholarship, or research.
Furthermore, it was commercial use (regardless of whether the work created from the photo was itself sold, it was part of a product that was sold).
Whether it is fair use or not, we don't know, but I'm not a lawyer, I'm going to venture to say you're not a lawyer, he's not a lawyer, and he didn't contact a lawyer before using it.
He had entirely what came to him ... even if it was a bit harsh.
You could argue that CAMPBELL, AKA SKYYWALKER, ET AL. V. ACUFFROSE MUSIC, INC. [1] wasn't a criticism, comment, news reporting, teaching, scholarship, or research (the court ruled that it was a parody). In CAMPBELL V. ACUFFROSE, the court also ruled that it being a commercial recording didn't stop it from being covered under fair use. There was another case which slips my mind at the moment that found similarly (that commercial use doesn't stop it from being fair use).
IANAL, and I am not familiar with all of the little details that go into determining whether something is fair use. From the reading of the applicable laws and precedents and having an actual lawyer go through those with me (I took a class last semester on IP law), however, I don't see anything that would outright bar this from being fair use.
My lawyers and I firmly believe that the pixel art is "fair use"
As a courtesy, I am taking his word for this as well as assuming that he held the same belief before the legal trouble.
Given that assumption, we can blame him for making risky assumptions himself and for not contacting a lawyer to make sure, but we cannot blame him for doing "a minimum" of asking permission when he didn't believe that he was using the image in a way that required that minimum.
Fair use is a potential defense in court, not a blanket immunity from suit.
Pleading fair use is like pleading insanity, there's only a narrow band of conditions it applies to and you can't plead it until you're standing infront of a judge.
It actually is an immunity (maybe not from suit, since as we know you can sue for anything, but it is an immunity). It's a limitation set on the copyright holder to protect the party using the work fairly:
It's a major reason for the outrage; even if Baio's use of the image was fair use to the letter, fair use law couldn't have protected him from the weight of the financial burden needed to protect his rights.
Your insanity defense analogy doesn't validate because fair use isn't supposed to simply act as a plea when you're forced to defend yourself. It's a protection that we all have currently.
From the article: "I doubt anyone would argue that song composition is a lesser art or any less deserving of full royalties than other arts."
Note that this viewpoint isn't historical: http://law.bepress.com/villanovalwps/papers/art31/ Copyright wasn't originally granted even to sheet music, if I read the paper correctly. In the USA, musical recordings weren't covered by Federal copyright until 1972, but rather were covered under state copyright. Older music still is.
Copyright on music is indeed debateable, and has been as long as copyright has existed as a legal concept.
Good catch. I definitely meant it in the sense that I doubt anyone would currently argue such a thing.
But the same historical twist applies to photography, albeit a century earlier -- whether copyright should be extened to photographs was a hotly debated issue in the courts.
It wasn't until 1865 that copyright was extended to photos, almost 100 years after copyright itself was instantiated.
The commentary I have read this last week on this case seems to all take one side or the other and makes absolutist claims for either. There are certainly many such cases in copyright law where things are obvious and the result of a court case clear in advance to those knowledgable of copyright law. This is not one of those cases, it is more subtle.
The work is derivative, but he claims it is not a copy that has been filtered with an algorithm, he hired an artist to recreate it pixel by pixel by hand. Thus it's like an impressionist painting of a realistic photo. A substantial difference. Is it fair use? Fair use looks at many things not just one. Given that it's transformative to comment on what is being done to the music as well, and it's a non-commercial project (income went to pay costs and remaining profit went to charitable something or another), it might be fair use. Or it might not. This would have to be resolved in court because it's an edge case. It's not cut and dried who would win this case.
2. He never asked for the license before using it. Only after he was sued did he ask if he could have gotten a license.
3. It was a commercial product.
4. The "compulsory license" does not give rights to do whatever the person wants with it. From the wikipedia page, it gives the right to rearrange the work but not to change the melody or fundamental character of the work. I know that the remix artists 2 Many DJs were not given permissions to create versions of certain songs. So it is most definitely not cut and dry as this claims it to be.
At the end of the day, he created a derivative work to be used in a commercial product without, as a minimum, even asking for permission.