Comment: There’s No Such Thing as a Compulsory License for a Photo

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My friend Andy has a terrific post up about his ordeal settling with the photographer Jay Maisel over the threat of a copyright lawsuit. Chances are if, you’re reading this, you know about that. If you haven’t ready Andy’s story, go and read it and then come back.

There’s one pointed question I’ve seen crop up in a number of conversations about the settlement:

Isn’t it wrong that Andy chose to pay the licensing fees for the music but not for the photograph?

This question makes the assumption that Andy could have paid the licensing fees to Maisel like he did for the music. He couldn’t have. This is because Jay Maisel refused to license the image and there’s no compulsory license for photography like there is for musical compositions.

A compulsory license is what it sounds like: the owner of the underlying musical composition is required, by law, to license it to anyone who wants to use it at a predetermined rate. This prohibits song writers from picking and choosing who gets to perform their works. It also allows Andy to license, at a fair rate, the underlying song compositions from a Miles Davis album to make a new album of original recordings (remember, copyrights to recordings are different from copyrights to the compositions of a song).

The copyright of photographic works, unlike works of music composition, is not subject to a compulsory license.

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Letter from Campbell Soup Product Manager to Andy Warhol (1964)

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In light of Andy Baio's settlement with Jay Maisel, this 1964 letter from the Campbell Soup product manager to Andy Warhol serves as the ideal way to respond to transformative works:

Transcript:

Campbell SOUP Company
CAMDEN 1, NEW JERSEY

May 19, 1964

Mr. A. Warhol
1342 Lexington Avenue
New York, New York

Dear Mr. Warhol:

I have followed your career for some time. Your work has evoked a great deal of interest here at Campbell Soup Company for obvious reasons.

At one time I had hoped to be able to acquire one of your Campbell Soup label paintings - but I'm afraid you have gotten much too expensive for me.

I did want to tell you, however, that we admired your work and I have since learned that you like Tomato Soup. I am taking the liberty of having a couple of cases of our Tomato Soup delivered to you at this address.

We wish you continued success and good fortune.

Cordially,

(Signed, 'William P. MacFarland')

William P. MacFarland
Product Marketing Manager

via Daniel Jalkut, Dan Abrams

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Andy Baio Writes About Settling Out of Court Over Pixel Art Depiction of Miles Davis

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Andy Baio (who took part in this year's Seven on Seven) writes about settling out of court for the pixel art cover to Kind of Bloop, his Kickstarter-funded "8-Bit Tribute to Miles Davis' Kind of Blue." As Baio explains, "the fact that I settled is not an admission of guilt. My lawyers and I firmly believe that the pixel art is 'fair use' and [Jay] Maisel and his counsel firmly disagree. I settled for one reason: this was the least expensive option available."

Baio goes on to explain how difficult it is to claim fair use in practice:

If you're borrowing inspiration from any copyrighted material, even if it seems clear to you that your use is transformational, you're in danger. If your use is commercial and/or potentially objectionable, seek permission (though there's no guarantee it'll be granted) or be prepared to defend yourself in court.

Anyone can file a lawsuit and the costs of defending yourself against a claim are high, regardless of how strong your case is. Combined with vague standards, the result is a chilling effect for every independent artist hoping to build upon or reference copyrighted works.

Also, as Marc Hedlund at O'Reilly Radar points out, "Andy negotiated the right to post the full story to his blog. That in itself is a huge accomplishment and service -- almost always, DMCA claims that end in settlement include a ban on speaking publicly about it. You should read the story, and when you do, consider that this happens all the time and we usually never hear about it."

Update: Mat Honan at Gizmodo has more, including this quote from Baio, "My lawyers and I firmly believed that I was legally in the right. But it doesn't matter, fair use doesn't protect you unless you're willing to pay to defend yourself. The average copyright case costs $310,000 to litigate when there's less than $1 million at risk."

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Domenico Quaranta on Jon Rafman show, copyright issues

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Recently Jon Rafman removed several images from the Brand New Paint Job website after an artists' licensing organization based in Canada sent cease and desist letters. In an essay for his show at Fabio Paris Art Gallery, Domenico Quaranta, author of Media, New Media, Postmedia (excerpted on Rhizome) explains why the contested images are fair use:

Schwitters Alley, 2011

What makes BNPJ [Brand New Paint Job] a radical project, despite its apparent accessibility, is – on one hand – its not immediate identification as a work of art and – on the other – its referencing of a conception of intellectual property that is not shared by current legislation.

As for the first point, without entering into the legal motivations behind the cease and desist letters, it is interesting to note that neither of them refer to the artistic nature of the project. The first makes a generic mention of “images”, and the second refers to an “online game”. It has to be said that if Rafman had been recognised as an artist, and his work as art, it is highly likely that it would have satisfied the criteria for fair use: the limited use of copyright material for specific purposes, as normally applies to artistic appropriations. So how was it possible that a collective set up to protect the interests of artists did not recognise, or refused to recognise, the artistic nature of a work?

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