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:
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.
(Signed, 'William P. MacFarland')
William P. MacFarland
Product Marketing Manager
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."
Photographs viewed online suffer from a crushing sameness, without the particular pleasures provided by silver-gelatin, chromogenic, or ink-jet prints. As I’ve edited the issue, the question preoccupying me has been whether it’s possible to have what Michael Fried calls an “absorptive” experience with a photograph online, in which the image can obliterate one’s consciousness of viewing it. And though this condition isn’t related exclusively to form, it requires a certain minimum size and richness of detail—enough to monopolize one’s attention and reveal the photograph’s complexities in the moment of viewing. The challenge here is to charge the JPEG—among other low-grade image-file formats common to the Web—with this task.
What a digital space lacks, it makes up for in the potential for recombination. A tactic common to the projects in this issue is emphasizing relationships among images, whether those belonging to a discrete set authored by the photographer or to the vast cache of vernacular imagery readily accessible online. This is true of Boru O’Brien O’Connell and Simone Gilge’s variations on the slide-show format, Dan Torop’s textual interventions, and Daniel Gordon’s automated amalgamations of his own photographs and those found on the Web. “I wish that each picture…was not forced to be surrounded by just two others,” Geoff Dyer writes in The Ongoing Moment, his book on photography. “Ideally some sections would be adjacent to four or eight or even ten others,” and the book would “emulate the aleatory experience of dipping into a pile of photographs as far as is compatible with the constraints of binding.” Online, liberated from the mechanics of actual space, photographs flash and dissolve, are animated and stilled, merged and isolated, replicated and excerpted. Their vitality is contingent.
—— EXCERPT FROM A NOTE ON BLACK BOX BY HANNAH WHITAKER (TRIPLE CANOPY)
More from Triple Canopy's new issue on photography.
Wayne Bremser considers Google Maps Street View art, drawing an interesting comparison to 60s Americana photography capturing TV screens:
One important process-related issue with GSV images that end up as photographs on a gallery wall is this: they are not screen grabs, but photographs of a screen. Whether the camera was employed to enable more megapixels for large printing, or as part of the conceptual artistic process, images created by the GSV device and compressed for the web are transformed somehow, perhaps with the air between monitor and camera. This is especially true with Rickard’s work. Spending time at the gallery, I noticed myself switching from paying attention to jpeg artifacts and evidence of the source, to finding the right distance and appreciating the colors and Rickard’s compositions.
Photographs of screens with GSV scenes actually belong to a long tradition. How many families in America have taken photographs of the television? Of the moon landing, or the home team winning the World Series?
The transformation is similar to what Rickard and the others are exploiting: a fuzzy TV signal on a crappy TV that makes its way into a Pittsburgh home, but becomes something different when captured by a decent Nikon lens. The resulting photograph doesn’t just capture the content of the TV screen, but the person’s desire to capture what was on the screen. Today GSV is just as fleeting as the World Series was in the pre-VCR or DVR era. There’s no way to know when Google will update a location and remove a scene.
Robert Frank has a few television screens in The Americans, including one wonderful photo inside a television studio. Along with the insane pile of cables, at the same time the photograph shows both how ...