>The problem is, Kat Von D never requested or received a license or permission from Sedlik to reproduce the photo, which has been sold with a non-exclusive license for reproduction, distribution, and display ever since its creation back in 1989.
Which PP reproduces and distributes from the electronic court filing.
> the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright
Not a lawyer, and this is an incredibly complex legal matter, but I think precedent hints that when media are crossed (e.g. going from photo to paint, or from paint to woodcutting, or, like in this case, photo to tattoo), the work is (usually) transformative enough.
There are two tests the judge will look at: (1) Originality, and (2) Transformativeness. Obviously, the courts will litigate this (or it's going to be settled out of court, like in the Obama poster case[1]). Interesting edge-case nonetheless.
The language is fuzzy enough that it depends on how good and/or persistent your lawyers are. Coincidentally, a different photographer's photo of Miles Davis caused a copyright stink over an chiptune tribute album's artwork about a decade ago: https://www.litigationandtrial.com/2011/06/articles/attorney...
I disagree. It's a simple matter: copyright laws abridge "the freedom of speech, or of the press" and should be outlawed by the 1st amendment.
If that doesn't work for you they also violate the 4th Amendment ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures").
If that doesn't work for you there's the 13th amendment "Neither slavery nor involuntary servitude...shall exist within the United States".
Or maybe the XIVth "nor shall any State deprive any person of...property, without due process of law". If you are prevented from doing harmless things with your property, then you are deprived of your property.
The bottom line is copyrights and patents are bad laws from first principles, and completely in conflict with the rest of our values and ideals. Sure, in the body of the text they are permitted, but so was human slavery and the right of only white men to vote. We need to fix this and #AbolishImaginaryProperty #EndCopyrights #EndPatents
You can't expect a constitutional amendment to completely nullify half of a fairly clear clause of the constitution (Article 1, Section 8, Clause 8) just because an activist interpretation of that amendment might go against it. That's not how constitutional amendments work.
That is how amendments work. They amend or change the constitution. But maybe that's not what you meant. I agree there is little chance of changing that particular clause.
Oh, I don't disagree that they change or amend the constitution.
My point was that you can't read into a theoretical ramification of an interpretation of an amendment to overrule the plain meaning of the text of the constitution.
Edit: I’m a little zonked out on cold meds, but I believe if I were to go back to my legal days, the relevant canon of construction in statutory interpretation is ‘repeal by implication,’ if anyone’s curious about this idea of how we square two ideas that may be partially opposed. The basic principle is that courts will be unlikely to repeal something just because another part of the law implies it’s no longer valid. IIRC there’s some thought that subsequent laws in subsequent legislative sessions carry more weight towards a repeal, so that would be in favor of repeal in the case of the amendment. But it’s still pretty uncommon, and highly discouraged. And in this case, I think when you have a plainly written passage enshrining the right of congress to enact Copyright-esque laws, you’d need some clear language to remove the clause. The 21st is a good example, but you wouldn’t need to be that explicit.
Pretty unrelated, but for those looking to argue about IP law on a constitutional basis, look at the congressional authority to enact trademark legislation. Unlike Copyright and Patent, which is an enumerated right, federal trademark law (the Lanham Act) is all based on the commerce clause. The commerce clause just being a broad clause on interstate commerce. It’s much weaker, and fun to pay attention to since the strength of the commerce clause waxes and wanes with the Supreme Court. Anyways, I hope someone enjoyed this cold medicine fuled aside.
> I hope someone enjoyed this cold medicine fuled aside.
I very much did, thank you. I hadn't heard the term "repeal by implication" and now you've got my curiosity peaked and have a new wikipedia hole to go down.
FWIW, my argument is a loser. Never in a hundred years do I think it would win in court, and I think a new clear amendment will be necessary, but that's where I'd make my stand given the current laws. (I'm resigned to think this might not be a hypothetical b/c I can only espouse SciHub so many times before some angry bear comes after me—though luckily there are a lot braver souls out there peacefully doing a lot more than mme leaving forum comments). :)
I think the gp’s interpretations are a bit fanciful, but its fairly clear that amendments can indeed nullify parts of the constitution and your opinion that a given interpretation is “activist” isn’t enough to dismiss that opinion.
It is not arguing in bad faith to say that no, the sun does not revolve around the earth and just because people repeat that a lot does not make it true.
If you can name one single useful copyrighted work that is not composed of >90% "infringement" I'll apologize and shut up.
Creators are not the creators they think they are. Everyone stands on the shoulders of giants, more so than they admit, even people who repeat that phrase.
Creators should work for their income like the rest of us, and not depend on restricting the freedoms of others so that they can be more comfortable.
The public domain is the only domain there should be. We abolished royalty in the USA but somehow we let the scourge of royalties remain. If you don't want people to share your ideas, fine, keep them to yourself. We don't need the help of any copyright leeches. We'll do just fine without those "contributions".
It’s bad faith to pretend slavery is the same as a limited time monopoly to incentivize people to create things.
Imagine you’re creating a new country and you want people to make things, how can you incentivize this? One way is to give people who make things a small time where they can make money from their creations, especially in cases where creating the thing requires a lot of capital investment (drug discovery). In the case of patents, you want them to share the detailed specs on their inventions with the public rather than keeping them secret. This way people are incentivized to share their inventions with the public so they get the protection.
Without copyright the bigger players and distributors make all the money. The only model possible is some donation based scheme which doesn’t work for high capital investment projects. Without patents companies keep everything a trade secret. There’s a lot of stuff in the modern world that would not exist in this one and a lot of people that make their money creating things that could not do so without IP law.
Is copyright law today broken? Yes. Are software patents in particular stupid? Yes. Is copyright and patent law broken from first principles or in conflict with useful incentive structure in society? No.
> Imagine you’re creating a new country and you want people to make things, how can you incentivize this?
You could pay them?
> One way is to give people who make things a small time where they can make money from their creations, especially in cases where creating the thing requires a lot of capital investment (drug discovery).
Yeah, you could claim the right to put your hands on anyone who made a copy of a creation, because you want people to make stuff and penalizing anyone other than the first person to make a thing helps the original artists get paid.
Of course if you wanted to incentivize creators you could also not punish them for copying other creators because the copy is another creation that you claim to want.
> Without copyright the bigger players and distributors make all the money.
Honestly I think its the other way around, you have to be big enough to hire a lawyer to enforce your copyright, and the bigger you are, the more / better lawyers you can get. Mickey Mouse and Disney are the ur-counterexample here.
> The only model possible is some donation based scheme which doesn’t work for high capital investment projects. Without patents companies keep everything a trade secret. There’s a lot of stuff in the modern world that would not exist in this one and a lot of people that make their money creating things that could not do so without IP law.
Perhaps we would be better off without all of this.
> Is copyright and patent law broken from first principles or in conflict with useful incentive structure in society? No.
> It’s bad faith to pretend slavery is the same as a limited
time monopoly to incentivize people to create things.
But copyrights and patents are a form of slavery. They
are in no way, shape or form, a form of property rights. In
fact, they are the exact opposite. You cannot have
property rights and copyrights and patents. You get to have
one or the other [0]. The only way you can reconcile the 2,
is if you allow the possibility of having property rights
over another person, which is by definition slavery.
But moving beyond the semantic and rhetorical, who do you
think benefits from patents and copyrights? People and
corporations are still benefitting from copyrights from the
years 1926-1965, when most African Americans were still
fighting for their basic rights to vote. Do you think
these laws are benefitting the descendants of slaves, or the
descendants of slave owners? This is not a rhetorical
question. You can do some research into who is getting the
revenue from these laws and you will find an interesting
distribution that resemble some earlier periods in
history.
There is no reason why people in poor cities should
be barred from transmitting software peer to peer peacefully
and instead forced via threat of violence to pay tithes to
people like Bill Gates.
> Imagine you’re creating a new country and you want people
> to make things, how can you incentivize this?
This argument is so asinine but very typical of the
arguments proffered by those pushing #ImaginaryPropertyLaws.
There is ZERO incentive NOT to innovate and make things.
ZERO. "What's that daughter, you are hungry? Sorry I have no
incentive to invent a better plough and feed you because if
I were to do without patent laws then I can't stop other
people from also benefitting from my idea."...."Oh Grandma,
you're sick? I would try to find a cure but I have no
incentive since if I were to find a cure I couldn't charge a
royalty to other people who read about it." None of our most
important things were built by people who gave a shit
about copyright and patents and none of them ever will be.
> There’s nuance and complexity here
There is not. The sun does not revolve around the earth.
There is no compromise ("I think we should compromise and
say it revolves 70 percent around the earth"). You either
decide to go with math and numbers and logic and first
principles or you decide to go with whatever those in power
decree.
There is truth and lies. And some times the true things
aren't the most well known things, and the lies get more
airtime.
If it costs you one billion dollars to discover a drug and then that drug can be sold by others making generics immediately for five cents then the drug will not get created, the business model isn't viable. This kind of thing is what I mean by incentives.
Even with modern IP laws you see this play out, if a drug is less marketable even with the IP protections it doesn't get made.
If you write a book and that book can be immediately distributed or sold by others giving you nothing then the only people that will write books are people that have money and are willing to do it for free or donations (this is already a little true, but would be more extreme in a world without copyright). We want a society that empowers more people to create.
Policy is not equivalent to physical laws like gravity. It turns out you can have property rights alongside patents and copyrights, we do. Just stating that you're correct like gravity isn't convincing. I could state my position is equivalent to gravity too.
As far as the length of copyright, I agree and the link in my first comment goes into that.
This is clearly an issue you're passionate about and have held for a long time, I can relate somewhat because I was more partial to some of those ideas when I was younger. I changed my mind when I read more about it.
The reason the slavery bit bothers me is because it confuses the topic with an unrelated and especially terrible historical issue that's particularly provocative. I find that rhetorical style a sign of bad faith. This kind of thing plus the hashtags I generally dislike and find unpersuasive.
> If it costs you one billion dollars to discover a drug
This never happens. Generally what does happen is it costs one trillion dollars to do the basic public domain research funded by the people to discover a drug, then some corporation makes a crappy version of one derivative, patents that version, shills it and falsely markets it for the duration of the patent term, and then tries to run away when the damage from the patent emerges (https://longbets.org/855/).
>> There is no reason why people in poor cities should be barred from transmitting software peer to peer peacefully and instead forced via threat of violence to pay tithes to people like Bill Gates.
You appear to be under some delusion that when companies invest in developing and supporting software - or other things - they are behoven to give that away as a charitable act.
Microsoft, for example, is a business tasked with making a profit.
> You appear to be under some delusion that when companies invest in developing and supporting software - or other things - they are behoven to give that away as a charitable act.
This is a lie and I never implied such a thing. What I'm saying is that when companies publish something, they should not then win some special rights of control over the people. You are free to keep ideas a secret, but as soon as you publish, people should be free and have the freedom to do what they want with those ideas.
> Microsoft, for example, is a business tasked with making a profit.
Thank you for telling me that my former employer is a for-profit business. I had no idea. /s
Sincerely, most of my life, me and most people around me have been ecstatic to create and share until we grew up and were drown into the collective dream of the possibility of getting rich (or at least getting by) by creating for money. And if you go to places were people are still not yet slaves to themselves - and you don't have to travel too far, just in the countryside, small islands in Europe, etc., you will see that people create and create continuously and ingenuously without ever thinking of copyrighting/trademarking/patenting. If you can't believe it, well, that's OK - I find it kind of sad, because I have experienced that and I do experience that and it is beautiful. But thinking that copyright actually incentivizes people to create is also fine - maybe it does for other subset of people.
What do you mean by "derivative works are exempt from copyright claims" ?
Standard language is copyright law around the world includes essentially "The owner of copyright has the exclusive rights to do and to authorize derivative works based upon the copyrighted work", there are various more specific details that may apply and change that, but the default scenario is that derivative works definitely require blessing from the copyright owner.
I'm sure you're correct, but I don't think media is being crossed here, since music = lyrics + melody. I'd presume that the musical piece as a whole is under copyright, but the lyrics are also under copyright, and the melody is also under copyright.
This is not correct. [1] has examples of court cases on transformative and non-transformative. Simply changing media, while copying the image wholesale, and the image alone, is not transformative.
For an interesting case, look at the famous Obama poster [2], which was made from a photo of Obama, but was clearly transformed. In the ensuing legal battle, which was settled out of court, the creator of the poster went to great lengths to destroy evidence that he created it from someone else's photo (which he later regretted when caught by the court).
So if the Obama poster is not transformative by your argument, then there is no way the Miles Davis tattoo would be.
There's plenty more cases showing media changes are not enough.
There are tons of people out there with Disney IP tattooed on their body. I've always been curious on their stance, or if tattoo artists are just hush-hush on drawing other's characters or trademarks.
Has there been any previous case law on whether or not this is allowed?
IANAL, that said I guess this falls under the "not going to complain about free marketing" category, even if they technically could. From the eyes of the biggest IP holders there is little chance of someone mistaking their creations for the work of someone else, and preserving the roots in pop culture is probably valued much higher than licensing.
Not tattoos, but games look at a similar situation with videos and streaming, most companies welcome the free advertising or encourage it heavily. But there are gaming companies famous for exercising a strong grip on content creation, most prominently japanese companies likes ATLUS [1].
Could an argument be made that since Disney has never defended this, then they have no right to complain now? (At least trademark is supposed to work that way - you lose it if you don’t actively enforce it).
IANAL but the idea that you lose your trademark if you don't actively enforce it is not true except in rare edge cases. Whether or not this is an edge case is up to the courts.
What edge cases? Yes, you can most your trademark. It isnt so much as I'd you actively enforce it, but rather if you let the term fall into regular use.
> trademark is supposed to work that way - you lose it if you don’t actively enforce it
That’s an oft repeated myth, but it’s not quite true.
From an article by the EFF:
> The circumstances under which a company could actually lose a trademark—such as abandonment and genericide—are quite limited. Genericide […] is very rare […]. Courts also set a very high bar to show abandonment (usually years of total non-use). Importantly, failure to enforce a mark against every potential infringer does not show abandonment.
I think it depends on whether or not those tattoo artists are using the work to promote themselves (and if they are famous enough that that tattoo-brand promotion is worth real money). It doesn't make sense to sue someone to recover the price of the tattoo. It absolutely makes sense to sue someone if you can potentially recover the price of the tattoo plus the marketing value to the tattooing business/brand.
It depends on the visibility of the tattoo artist or production. Friend went on a TV production for tattoos and the artists had a strict policy they would not use any copyrighted image.
She made that money by selling the image of Miles Davis that she did not have rights to. I suspect she and the client agreed on that image as pre-conditions of the sale.
Not actually relevant, but I was at Disneyland one time and a large man was sitting on a bench at the hub on Main St. He proceeded to remove his shirt to unveil dozens of tattoos of Disney characters on his torso.
It took less than a minute for one of the security people (dressed in an old-timey police uniform, of course) to come over and tell him to put his shirt back on, in a tone and cadence which made it sound like this wasn’t the first time the two of them had had this interaction.
Anyway what I’m saying is, as far as I know he wasn’t bound and gagged and hauled off before a Disney magistrate.
While I fall on the side of the tattoo being transformative... I disagree with the sentiment that "a drawing by eye" is especially relevant. To take another medium as an example, if I listen to a song and then release a cover of it by ear, then I believe that would fall afoul of copyright laws. That seems like a pretty direct parallel.
> To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
It is pretty clearly about promoting those things via economic incentives, by giving inventors and authors a limited monopoly.
Jeff Sedlick appears to have created a photograph that is iconic over 30 years later, while the tattoo artist is just copying it. If the point of copyright law is to encourage creativity then don't we want Sedlick to win?
Copyright is a compromise between the creatives and the community. Sedlick has already received more than enough compensation and protection to enable this creation, and that was the point of copyright - to encourage the creation of new works, not to protect them in eternity.
The compromise has diminishing returns for providing protections and affordances on longer time scales, and 30 years is really pushing it.
Do we know this? He's not even got a Wikipedia page. My understanding is that photographers earn peanuts and I for one would be raging if some Instragammer was coining it in from copying the one piece of work that made me famous.
Any argument that this is infringement must be predicated on how accurate the tattoo is to the original photo. The artist would never think to sue if it wasn't executed so expertly.
Where do you draw the lines? Is it infringement if you draw a picture while looking at another picture? What if you do it from memory?
The quality of execution is not a factor - a sloppy copy is a derivative work just as a very good copy. (If the result is substantially transformative - which is very, very different from an expertly executed copy, other factors might apply).
If the tattoo was executed poorly, the artist might never think to sue, but they would be exactly as justified to sue as in this case.
> Remember Kind of Bloop, the chiptune tribute to Miles Davis’ Kind of Blue that I produced? I went out of my way to make sure the entire project was above board, licensing all the cover songs from Miles Davis’s publisher and giving the total profits from the Kickstarter fundraiser to the five musicians that participated.
> But there was one thing I never thought would be an issue: the cover art.
> Before the project launched, I knew exactly what I wanted for the cover — a pixel art recreation of the original album cover, the only thing that made sense for an 8-bit tribute to Kind of Blue. I tried to draw it myself, but if you’ve ever attempted pixel art, you know how demanding it is. After several failed attempts, I asked a talented friend to do it.
I suspect photographers will disagree, but a 31 year old photo of a long deceased person, hand copied to another medium does not ethically feel like infringement to me.
The only part of this that's legally relevant is "hand copied to another medium", which might make it sufficiently transformative to be fair use.
Ethically, I'm inclined to agree that copyright currently lasts too long, though I'm not sure I'd call 31 years, with the author of the copyrighted work still being alive too long.
Pure speculation: Perhaps, in this particular case he was provoked by Kat Von D (short for Drachenberg), whose Wikipedia-quote includes a quote from a jewish magazine calling her an "anti-jew":
I think part of the deal with asks like $150k for damages like this are a) lawyers will eat a lot of it and b) if the judge sides with the original artist, they might not award the full amount anyway. Ultimately they may just end up with the licensing fee they lost and some compensation for time lost having to chase that fee. It seems greedy but it might be more indicative of a dysfunctional legal system? I’m not sure, just adding a couple cents.
That figure is for damages, presumably the number would have been lower if her team hadn't ignored the copyright owner trying to reach out directly—and much lower if they'd asked for a license before the tattoo.
> Plaintiff Jeffrey Sedlik reached out to Kat Von D 'artist to artist' (through her representatives) seeking an amicable resolution of the matter prior to filing suit, but Ms. Von Drachenberg chose to ignore Mr. Sedlik’s good faith effort to avoid litigation.
Just a technical note: The artist is not representing himself. The artist is Jeffrey Sedlik. The attorney is Gary Sedlik. They're obviously related, but not the same person.
I can't imagine going through life with a tattoo the size of my entire upper arm of someone's photo. The copyright symbol could at least arguably be ironic.
Your personal life experiences and subjective viewpoints about how to utilize one's own body do not trump others'. If you do not want a tattoo, that is fine, but your distaste toward them should not influence others' abilities to do the same.
Thank you for insight. I hadn't considered that others might have a different opinion.
All sarcasm aside, to take it to a logical and pedantic extreme, even while I wouldn't want someone to change their body based on my opinion, you probably wouldn't want someone to tattoo themselves with black face or a swastika, so I don't entirely agree.
Neither of those things are representative of those with tattoos, and are a pretty small outlier. Reductio ad absurdum, in my opinion.
That being said, I wouldn't personally care. Not my life to live and I don't have time to police the actions of others. Plus, I'm sure they'll face their own set of issues related to such imagery that go far beyond anything I could do about it.
You seemed to care enough and have the time to try and police my opinion about my own judgement, also providing your own by suggesting there might be consequences to my hypothetical but observed example.
I personally don't think anything is necessarily representative of people with tattoos, never mentioned any such generalization, and find your comment defensive as though I was attacking you personally. If you have a tattoo of the sort, why wouldn't you just add a contrary point of view?
I guess it's somewhat off topic but tattoo artists will often sue media companies using their tattoo's that the media company is copying from clients bodies.
>“While Von D no doubt used Sedlik’s photo as a reference, the process is not as simple as running someone’s body through a photocopy machine."
This line is insulting. HN can understand, there is nothing simple about a photocopy machine. Kat Von D could probably create her own tattoo tools, but could she create her own photocopy machine?
Photog maybe pissed off but he aint getting $150,000 in this life for this.
In the best case the talented tatoo lady maybe forced to pay some of the fees she collected for tatoo work.
His abmulance chasers may scream "damages" for as long as they want but this is no win for him and them.
Good advertisement for the lady, well deserved, great work.
PS: I used to work as a professional photographer and I had artist asking me to buy exclusive license to paint a picture off my photo of a famous horse jumper in action. I sold it to her for $20. Come on! Everyone is happy.
Photographers are one of the few subsets of artists that have benefitted greatly from Copyright Law; that and Songwriters. Everyone else gets to eat cake.
I mean, who made "photography" an "art" anyway that deserved to have such protections? I mean, come on, all you did was be at the right time at the right place and took a fucking picture, with a camera no less.
And, don't get me started on how badly drummers have been screwed under this "copyright law". I'm too busy sampling the "Amen Break" for the thousandth time...
> I mean, who made "photography" an "art" anyway that deserved to have such protections? I mean, come on, all you did was be at the right time at the right place and took a fucking picture, with a camera no less.
If that were the case, everyone would be a great photographer. Being able to envision a shot and then also being able to execute it (prepare for it, shoot it and process it afterwards) is not as simple as "being at the right place and right time".
Regardless of your claims, this portrait is a studio photograph and requires very careful setup of lights and also clear direction by the photographer.
Just because you use a camera to snap pictures without careful consideration to light composition or subject doesn't mean that's how everyone else does it.
There's an incredible irony in your uniformed views. You suggest that photography couldn't possibly be art because it involves technology and then you go on to talk about the indignity of the "Amen Break" which itself only gained popularity because of sampling technology. In fact the same can be said for all the break beats on the "Ultimate Breaks and Beats" compilations. Much of early Hip Hop was the result of sampling technology[2]. Is Hip Hop not art either since by your reductionist logic all someone did was press a button?
It's also worth mentioning the Winston's B-side of "Amen Brother" from which the "Amen Break was sampled is itself a derivative work. That track is actually based on the Impression's track "Amen" itself a traditional Gospel song[1] as well as a top 50 hit in the same year the Winston's recorded it. However the Winston's credited themselves with the songwriting. The outrage and sympathy seem to be pretty well cherry-picked when you consider all these facts. It made for good headlines for a while though.
Drum part's aren't copyrightable for the sole reason that they are not songwriting but rather are accompaniment. And they are copyrighted in the context of the master recording. Trying to imagine a world in which drum parts are copyright is an exercise in insanity. The classic Bo Diddley drum beat while one of the most recognizable beats was certainly not invented by Clifton James. Nor would he ever claim he did. It has roots in Afro-Cuban music and in fact goes all the way back to the Yoruba in Western Africa. Anyone who has ever been to Carnival or Mardi Gras knows this beat. How exactly would such copyright litigation unfold?
By the way nobody "made photography an art." Like all new mediums it was once hotly debated whether it was art or not. That debate ended a long time ago however. You would be hard pressed to find anyone who has looked at the work of Henri Cartier-Bresson, Diane Arbus, Robert Mapplethorpe or Ansel Adams conclude that it wasn't art.
Legal matters aside this is quite interesting from moral point of view. Sure, 30 years is long and 150k USD is a lot, but where one draws the line?
I imagine that photographer would like to earn money for the photo he took. Probably such photographer only has couple of those shot throughout lifetime and it’s quite obvious he’s trying to make a living out of it. One could criticize greediness and time, but should it be 1$ and 1 day instead?
On the other hand we have tattoo artist that reproduced 1:1 photo to skin. It probably was hard and required a lot of skill and experience. My guess is that artist should have the source material. Should they create all of it? If not should they have permission of the source material?
And there is third side - using sourced work as a marketing material. Would drawing straight rectangle both on client’s arm and showing it on photo of “work in progress” had the same marketing effect as using famous photo? Instagram brings money too and this specific piece of work was used to boost it.
I understand the need and also myself I would like art to be free, but in the end artist (such as photographer or tattoo artist) has to eat, I’m not really sure how one could settle this without a fight though.
It seems like there's an interesting parallel between this case and the one where the tattoo artist sued NBA 2K for their artwork appearing in their game (as it is _part_ of the player that appeared in the game).
Judge Rules in Favor of 'NBA 2K' Creators in Case Brought by Tattoo Artists
Like paying a secretary to type up a copy of a novel for you, or paying a musician to perform songs?
As for the copy & distribution aspect of instagram, don't the copies have to be plausibly usable as stand-ins for the real thing? Are any of those pics of such quality that you can frame them and otherwise use them instead of the original?
Then again, don't you need to negotiate rights to include even small samples of someone else's song in your own? The sample nor the new song certianly can't stand in for the original.
Maybe IF the tattoo artist included pics of the original alongside her own work, then she just needs to do whatever petapixel did to include their copy in this article? Did they have to do anything much?
I think both the tattoos and the pictures of the tattoos are safe but any copies of the original on instagram etc is probably a much less cut and dried question.
But it doesn't sound like tbis can possibly be a new problem that hasn't been hashed out 100 times in 100 essentially equivalent cases by now since decades ago, maybe even literally involving tattoo artists.
I'm honestly not the most knowledgeable in this, but from what I can see it's actually two separate issues. The first was the actual tattoo, but the second was the instagram posts using the tattoo and picture.
I could be wrong, but I feel like, as for the issue of the tattoo itself, that's going to end up amounting to nothing. The publicity pictures on the other hand may be more of an issue.
As far as my very ignorant opinion, likely not based on reality or laws goes...
Copyright on a photo should apply to direct copies being used in in ways photos are typically used.
Paintings, tattoos, etc. of photos should not fall under 'usage of a photo' as far as copyrights go. It's ridiculous. It doesn't matter how photorealistic somebody can paint a picture, it's still not the same picture.
It's not identical, the medium is not the same, and they're not even competing for the same...I guess...pool of money?...I dunno how to word that...but they don't tend to interfere in eachother's markets.
I like all your points, but I think them all kinda... irrelevant?
Being 'dinged' what could easily be more than $150k is a penalty that is almost certain to have massive repercussions on someone's life. Even if we assume complete guilt, full knowledge of the law, and willful intent to disregard it to do the job... in what world is it sane to economically trash someone's life over a mistake like this?
He is so worried about photo being used by others then he should keep it locked in his underground store house. This is just pure greed. If Time uses it as "Picture of the year" the he was okay, but now he sees some other person making money by working hard - he wants free piece of action. Honestly owner of the picture should "person" in the picture. Photographer do not own reality!
Copyright is messed up. It should definitely be shorter, or require annual registration fees that grow exponentially, or something. Society loses with copyright law the way it is.
I suspect exponential growing registration fees is something that is more likely to get done, because people like Disney will pay for valuable asset protection but every random work from 20+ years ago is fine.
So like $0 copyright for 20 years, then $1,000 for 5 year extension, $10,000 for next 5 year extension, $100,000 for next 5 year extension, $1,000,000 for next 5 years etc.
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[ 0.23 ms ] story [ 178 ms ] threadWhich PP reproduces and distributes from the electronic court filing.
https://www.law.cornell.edu/uscode/text/17/107
> the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright
There are two tests the judge will look at: (1) Originality, and (2) Transformativeness. Obviously, the courts will litigate this (or it's going to be settled out of court, like in the Obama poster case[1]). Interesting edge-case nonetheless.
[1] http://www.nytimes.com/2011/01/13/arts/design/13fairey.html
I disagree. It's a simple matter: copyright laws abridge "the freedom of speech, or of the press" and should be outlawed by the 1st amendment.
If that doesn't work for you they also violate the 4th Amendment ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures").
If that doesn't work for you there's the 13th amendment "Neither slavery nor involuntary servitude...shall exist within the United States".
Or maybe the XIVth "nor shall any State deprive any person of...property, without due process of law". If you are prevented from doing harmless things with your property, then you are deprived of your property.
The bottom line is copyrights and patents are bad laws from first principles, and completely in conflict with the rest of our values and ideals. Sure, in the body of the text they are permitted, but so was human slavery and the right of only white men to vote. We need to fix this and #AbolishImaginaryProperty #EndCopyrights #EndPatents
If the 1st Amendment were intended to do so to copyright, someone would have noticed by now.
My point was that you can't read into a theoretical ramification of an interpretation of an amendment to overrule the plain meaning of the text of the constitution.
Edit: I’m a little zonked out on cold meds, but I believe if I were to go back to my legal days, the relevant canon of construction in statutory interpretation is ‘repeal by implication,’ if anyone’s curious about this idea of how we square two ideas that may be partially opposed. The basic principle is that courts will be unlikely to repeal something just because another part of the law implies it’s no longer valid. IIRC there’s some thought that subsequent laws in subsequent legislative sessions carry more weight towards a repeal, so that would be in favor of repeal in the case of the amendment. But it’s still pretty uncommon, and highly discouraged. And in this case, I think when you have a plainly written passage enshrining the right of congress to enact Copyright-esque laws, you’d need some clear language to remove the clause. The 21st is a good example, but you wouldn’t need to be that explicit.
Pretty unrelated, but for those looking to argue about IP law on a constitutional basis, look at the congressional authority to enact trademark legislation. Unlike Copyright and Patent, which is an enumerated right, federal trademark law (the Lanham Act) is all based on the commerce clause. The commerce clause just being a broad clause on interstate commerce. It’s much weaker, and fun to pay attention to since the strength of the commerce clause waxes and wanes with the Supreme Court. Anyways, I hope someone enjoyed this cold medicine fuled aside.
I very much did, thank you. I hadn't heard the term "repeal by implication" and now you've got my curiosity peaked and have a new wikipedia hole to go down.
FWIW, my argument is a loser. Never in a hundred years do I think it would win in court, and I think a new clear amendment will be necessary, but that's where I'd make my stand given the current laws. (I'm resigned to think this might not be a hypothetical b/c I can only espouse SciHub so many times before some angry bear comes after me—though luckily there are a lot braver souls out there peacefully doing a lot more than mme leaving forum comments). :)
https://news.ycombinator.com/item?id=26028392
As a concept it exists to promote the progress of science and useful arts - to incentivize people to create. This is something we want in a society.
You could also say "As a concept slaves exists to promote the cotton industry. This is something we want in a society."
It doesn't matter if you lie and call him the "Red Angel", if when you stop and examine him closely he's really the devil.
If you can name one single useful copyrighted work that is not composed of >90% "infringement" I'll apologize and shut up.
Creators are not the creators they think they are. Everyone stands on the shoulders of giants, more so than they admit, even people who repeat that phrase.
Creators should work for their income like the rest of us, and not depend on restricting the freedoms of others so that they can be more comfortable.
The public domain is the only domain there should be. We abolished royalty in the USA but somehow we let the scourge of royalties remain. If you don't want people to share your ideas, fine, keep them to yourself. We don't need the help of any copyright leeches. We'll do just fine without those "contributions".
-Breck, via the World Wide Web and TCP/IP
Imagine you’re creating a new country and you want people to make things, how can you incentivize this? One way is to give people who make things a small time where they can make money from their creations, especially in cases where creating the thing requires a lot of capital investment (drug discovery). In the case of patents, you want them to share the detailed specs on their inventions with the public rather than keeping them secret. This way people are incentivized to share their inventions with the public so they get the protection.
Without copyright the bigger players and distributors make all the money. The only model possible is some donation based scheme which doesn’t work for high capital investment projects. Without patents companies keep everything a trade secret. There’s a lot of stuff in the modern world that would not exist in this one and a lot of people that make their money creating things that could not do so without IP law.
Is copyright law today broken? Yes. Are software patents in particular stupid? Yes. Is copyright and patent law broken from first principles or in conflict with useful incentive structure in society? No.
There’s nuance and complexity here - people like to make everything simple and one sided, but it’s not: https://www.lesswrong.com/posts/PeSzc9JTBxhaYRp9b/policy-deb...
You could pay them?
> One way is to give people who make things a small time where they can make money from their creations, especially in cases where creating the thing requires a lot of capital investment (drug discovery).
Yeah, you could claim the right to put your hands on anyone who made a copy of a creation, because you want people to make stuff and penalizing anyone other than the first person to make a thing helps the original artists get paid.
Of course if you wanted to incentivize creators you could also not punish them for copying other creators because the copy is another creation that you claim to want.
> Without copyright the bigger players and distributors make all the money.
Honestly I think its the other way around, you have to be big enough to hire a lawyer to enforce your copyright, and the bigger you are, the more / better lawyers you can get. Mickey Mouse and Disney are the ur-counterexample here.
> The only model possible is some donation based scheme which doesn’t work for high capital investment projects. Without patents companies keep everything a trade secret. There’s a lot of stuff in the modern world that would not exist in this one and a lot of people that make their money creating things that could not do so without IP law.
Perhaps we would be better off without all of this.
> Is copyright and patent law broken from first principles or in conflict with useful incentive structure in society? No.
Hard disagree. Yes it is.
But copyrights and patents are a form of slavery. They are in no way, shape or form, a form of property rights. In fact, they are the exact opposite. You cannot have property rights and copyrights and patents. You get to have one or the other [0]. The only way you can reconcile the 2, is if you allow the possibility of having property rights over another person, which is by definition slavery.
But moving beyond the semantic and rhetorical, who do you think benefits from patents and copyrights? People and corporations are still benefitting from copyrights from the years 1926-1965, when most African Americans were still fighting for their basic rights to vote. Do you think these laws are benefitting the descendants of slaves, or the descendants of slave owners? This is not a rhetorical question. You can do some research into who is getting the revenue from these laws and you will find an interesting distribution that resemble some earlier periods in history.
There is no reason why people in poor cities should be barred from transmitting software peer to peer peacefully and instead forced via threat of violence to pay tithes to people like Bill Gates.
> Imagine you’re creating a new country and you want people > to make things, how can you incentivize this?
This argument is so asinine but very typical of the arguments proffered by those pushing #ImaginaryPropertyLaws. There is ZERO incentive NOT to innovate and make things. ZERO. "What's that daughter, you are hungry? Sorry I have no incentive to invent a better plough and feed you because if I were to do without patent laws then I can't stop other people from also benefitting from my idea."...."Oh Grandma, you're sick? I would try to find a cure but I have no incentive since if I were to find a cure I couldn't charge a royalty to other people who read about it." None of our most important things were built by people who gave a shit about copyright and patents and none of them ever will be.
> There’s nuance and complexity here
There is not. The sun does not revolve around the earth. There is no compromise ("I think we should compromise and say it revolves 70 percent around the earth"). You either decide to go with math and numbers and logic and first principles or you decide to go with whatever those in power decree.
There is truth and lies. And some times the true things aren't the most well known things, and the lies get more airtime.
#AbolishImaginaryProperty
> Are software patents...stupid? Yes.
Okay at least we agree on that.
[0] https://breckyunits.com/an-unpopular-phrase.html
P.S. Not trying to harp on your personally, it's the industry as a whole that my anger is directed towards.
Even with modern IP laws you see this play out, if a drug is less marketable even with the IP protections it doesn't get made.
If you write a book and that book can be immediately distributed or sold by others giving you nothing then the only people that will write books are people that have money and are willing to do it for free or donations (this is already a little true, but would be more extreme in a world without copyright). We want a society that empowers more people to create.
Policy is not equivalent to physical laws like gravity. It turns out you can have property rights alongside patents and copyrights, we do. Just stating that you're correct like gravity isn't convincing. I could state my position is equivalent to gravity too.
As far as the length of copyright, I agree and the link in my first comment goes into that.
This is clearly an issue you're passionate about and have held for a long time, I can relate somewhat because I was more partial to some of those ideas when I was younger. I changed my mind when I read more about it.
The reason the slavery bit bothers me is because it confuses the topic with an unrelated and especially terrible historical issue that's particularly provocative. I find that rhetorical style a sign of bad faith. This kind of thing plus the hashtags I generally dislike and find unpersuasive.
This never happens. Generally what does happen is it costs one trillion dollars to do the basic public domain research funded by the people to discover a drug, then some corporation makes a crappy version of one derivative, patents that version, shills it and falsely markets it for the duration of the patent term, and then tries to run away when the damage from the patent emerges (https://longbets.org/855/).
Source: spent a few years in medical research.
You appear to be under some delusion that when companies invest in developing and supporting software - or other things - they are behoven to give that away as a charitable act. Microsoft, for example, is a business tasked with making a profit.
This is a lie and I never implied such a thing. What I'm saying is that when companies publish something, they should not then win some special rights of control over the people. You are free to keep ideas a secret, but as soon as you publish, people should be free and have the freedom to do what they want with those ideas.
> Microsoft, for example, is a business tasked with making a profit.
Thank you for telling me that my former employer is a for-profit business. I had no idea. /s
Standard language is copyright law around the world includes essentially "The owner of copyright has the exclusive rights to do and to authorize derivative works based upon the copyrighted work", there are various more specific details that may apply and change that, but the default scenario is that derivative works definitely require blessing from the copyright owner.
Perhaps sometimes - but written song lyrics don't lose their copyright when sung.
This is not correct. [1] has examples of court cases on transformative and non-transformative. Simply changing media, while copying the image wholesale, and the image alone, is not transformative.
For an interesting case, look at the famous Obama poster [2], which was made from a photo of Obama, but was clearly transformed. In the ensuing legal battle, which was settled out of court, the creator of the poster went to great lengths to destroy evidence that he created it from someone else's photo (which he later regretted when caught by the court).
So if the Obama poster is not transformative by your argument, then there is no way the Miles Davis tattoo would be.
There's plenty more cases showing media changes are not enough.
[1] https://www.nolo.com/legal-encyclopedia/fair-use-what-transf...
[2] https://en.wikipedia.org/wiki/Barack_Obama_%22Hope%22_poster
Has there been any previous case law on whether or not this is allowed?
Not tattoos, but games look at a similar situation with videos and streaming, most companies welcome the free advertising or encourage it heavily. But there are gaming companies famous for exercising a strong grip on content creation, most prominently japanese companies likes ATLUS [1].
[1]: https://atlus.com/note-persona-5-streaming/
Could an argument be made that since Disney has never defended this, then they have no right to complain now? (At least trademark is supposed to work that way - you lose it if you don’t actively enforce it).
That’s an oft repeated myth, but it’s not quite true.
From an article by the EFF:
> The circumstances under which a company could actually lose a trademark—such as abandonment and genericide—are quite limited. Genericide […] is very rare […]. Courts also set a very high bar to show abandonment (usually years of total non-use). Importantly, failure to enforce a mark against every potential infringer does not show abandonment.
[1] https://www.eff.org/deeplinks/2013/11/trademark-law-does-not...
It took less than a minute for one of the security people (dressed in an old-timey police uniform, of course) to come over and tell him to put his shirt back on, in a tone and cadence which made it sound like this wasn’t the first time the two of them had had this interaction.
Anyway what I’m saying is, as far as I know he wasn’t bound and gagged and hauled off before a Disney magistrate.
I wonder if the photographer would sue if the drawing/tatoo wasn’t as good and was more crude?
For visual art there's no centralized structure like this, so you're at the whim of the original artist or counting on fair use.
https://en.m.wikipedia.org/wiki/Mechanical_license
The purpose of patents is to promote (edit: scientific research).
Giving someone money for the book they wrote for the rest of their life plus some time is all about money.
(In theory. The practice, as with most things, gets complicated.)
It is pretty clearly about promoting those things via economic incentives, by giving inventors and authors a limited monopoly.
The compromise has diminishing returns for providing protections and affordances on longer time scales, and 30 years is really pushing it.
Also I hope he's doing fine with his client list https://sedlik.com/getinfo.htm
Where do you draw the lines? Is it infringement if you draw a picture while looking at another picture? What if you do it from memory?
If the tattoo was executed poorly, the artist might never think to sue, but they would be exactly as justified to sue as in this case.
> Remember Kind of Bloop, the chiptune tribute to Miles Davis’ Kind of Blue that I produced? I went out of my way to make sure the entire project was above board, licensing all the cover songs from Miles Davis’s publisher and giving the total profits from the Kickstarter fundraiser to the five musicians that participated.
> But there was one thing I never thought would be an issue: the cover art.
> Before the project launched, I knew exactly what I wanted for the cover — a pixel art recreation of the original album cover, the only thing that made sense for an 8-bit tribute to Kind of Blue. I tried to draw it myself, but if you’ve ever attempted pixel art, you know how demanding it is. After several failed attempts, I asked a talented friend to do it.
Ethically, I'm inclined to agree that copyright currently lasts too long, though I'm not sure I'd call 31 years, with the author of the copyrighted work still being alive too long.
https://www.extortionletterinfo.com/forum/getty-images-lette...
Pure speculation: Perhaps, in this particular case he was provoked by Kat Von D (short for Drachenberg), whose Wikipedia-quote includes a quote from a jewish magazine calling her an "anti-jew":
https://en.wikipedia.org/wiki/Kat_Von_D
Imagine how much Disney will make from tattoo royalties if this gets accepted.
> Plaintiff Jeffrey Sedlik reached out to Kat Von D 'artist to artist' (through her representatives) seeking an amicable resolution of the matter prior to filing suit, but Ms. Von Drachenberg chose to ignore Mr. Sedlik’s good faith effort to avoid litigation.
[from linked Billboard article]
I hope he would make an exception in the case of a tattoo. I can't imagine going through life with a copyright notice or a © symbol tattooed on my body.
All sarcasm aside, to take it to a logical and pedantic extreme, even while I wouldn't want someone to change their body based on my opinion, you probably wouldn't want someone to tattoo themselves with black face or a swastika, so I don't entirely agree.
That being said, I wouldn't personally care. Not my life to live and I don't have time to police the actions of others. Plus, I'm sure they'll face their own set of issues related to such imagery that go far beyond anything I could do about it.
I personally don't think anything is necessarily representative of people with tattoos, never mentioned any such generalization, and find your comment defensive as though I was attacking you personally. If you have a tattoo of the sort, why wouldn't you just add a contrary point of view?
Famously The Hangover Part II also Take Two - https://screenrant.com/wwe-randy-orton-tattoo-artist-sues-ta...
This line is insulting. HN can understand, there is nothing simple about a photocopy machine. Kat Von D could probably create her own tattoo tools, but could she create her own photocopy machine?
In the best case the talented tatoo lady maybe forced to pay some of the fees she collected for tatoo work.
His abmulance chasers may scream "damages" for as long as they want but this is no win for him and them.
Good advertisement for the lady, well deserved, great work.
PS: I used to work as a professional photographer and I had artist asking me to buy exclusive license to paint a picture off my photo of a famous horse jumper in action. I sold it to her for $20. Come on! Everyone is happy.
I mean, who made "photography" an "art" anyway that deserved to have such protections? I mean, come on, all you did was be at the right time at the right place and took a fucking picture, with a camera no less.
And, don't get me started on how badly drummers have been screwed under this "copyright law". I'm too busy sampling the "Amen Break" for the thousandth time...
If that were the case, everyone would be a great photographer. Being able to envision a shot and then also being able to execute it (prepare for it, shoot it and process it afterwards) is not as simple as "being at the right place and right time".
It's also worth mentioning the Winston's B-side of "Amen Brother" from which the "Amen Break was sampled is itself a derivative work. That track is actually based on the Impression's track "Amen" itself a traditional Gospel song[1] as well as a top 50 hit in the same year the Winston's recorded it. However the Winston's credited themselves with the songwriting. The outrage and sympathy seem to be pretty well cherry-picked when you consider all these facts. It made for good headlines for a while though.
Drum part's aren't copyrightable for the sole reason that they are not songwriting but rather are accompaniment. And they are copyrighted in the context of the master recording. Trying to imagine a world in which drum parts are copyright is an exercise in insanity. The classic Bo Diddley drum beat while one of the most recognizable beats was certainly not invented by Clifton James. Nor would he ever claim he did. It has roots in Afro-Cuban music and in fact goes all the way back to the Yoruba in Western Africa. Anyone who has ever been to Carnival or Mardi Gras knows this beat. How exactly would such copyright litigation unfold?
By the way nobody "made photography an art." Like all new mediums it was once hotly debated whether it was art or not. That debate ended a long time ago however. You would be hard pressed to find anyone who has looked at the work of Henri Cartier-Bresson, Diane Arbus, Robert Mapplethorpe or Ansel Adams conclude that it wasn't art.
[1] https://en.wikipedia.org/wiki/Amen_(gospel_song)
[2] https://en.wikipedia.org/wiki/Ultimate_Breaks_and_Beats
I imagine that photographer would like to earn money for the photo he took. Probably such photographer only has couple of those shot throughout lifetime and it’s quite obvious he’s trying to make a living out of it. One could criticize greediness and time, but should it be 1$ and 1 day instead?
On the other hand we have tattoo artist that reproduced 1:1 photo to skin. It probably was hard and required a lot of skill and experience. My guess is that artist should have the source material. Should they create all of it? If not should they have permission of the source material?
And there is third side - using sourced work as a marketing material. Would drawing straight rectangle both on client’s arm and showing it on photo of “work in progress” had the same marketing effect as using famous photo? Instagram brings money too and this specific piece of work was used to boost it.
I understand the need and also myself I would like art to be free, but in the end artist (such as photographer or tattoo artist) has to eat, I’m not really sure how one could settle this without a fight though.
Judge Rules in Favor of 'NBA 2K' Creators in Case Brought by Tattoo Artists
https://www.si.com/nba/2020/04/06/nba-2k-ruling-tattoo-artis...
Like paying a secretary to type up a copy of a novel for you, or paying a musician to perform songs?
As for the copy & distribution aspect of instagram, don't the copies have to be plausibly usable as stand-ins for the real thing? Are any of those pics of such quality that you can frame them and otherwise use them instead of the original?
Then again, don't you need to negotiate rights to include even small samples of someone else's song in your own? The sample nor the new song certianly can't stand in for the original.
Maybe IF the tattoo artist included pics of the original alongside her own work, then she just needs to do whatever petapixel did to include their copy in this article? Did they have to do anything much?
I think both the tattoos and the pictures of the tattoos are safe but any copies of the original on instagram etc is probably a much less cut and dried question.
But it doesn't sound like tbis can possibly be a new problem that hasn't been hashed out 100 times in 100 essentially equivalent cases by now since decades ago, maybe even literally involving tattoo artists.
I could be wrong, but I feel like, as for the issue of the tattoo itself, that's going to end up amounting to nothing. The publicity pictures on the other hand may be more of an issue.
As far as my very ignorant opinion, likely not based on reality or laws goes...
Copyright on a photo should apply to direct copies being used in in ways photos are typically used.
Paintings, tattoos, etc. of photos should not fall under 'usage of a photo' as far as copyrights go. It's ridiculous. It doesn't matter how photorealistic somebody can paint a picture, it's still not the same picture.
It's not identical, the medium is not the same, and they're not even competing for the same...I guess...pool of money?...I dunno how to word that...but they don't tend to interfere in eachother's markets.
It just doesn't seem reasonable to me.
Being 'dinged' what could easily be more than $150k is a penalty that is almost certain to have massive repercussions on someone's life. Even if we assume complete guilt, full knowledge of the law, and willful intent to disregard it to do the job... in what world is it sane to economically trash someone's life over a mistake like this?
I suspect exponential growing registration fees is something that is more likely to get done, because people like Disney will pay for valuable asset protection but every random work from 20+ years ago is fine.
So like $0 copyright for 20 years, then $1,000 for 5 year extension, $10,000 for next 5 year extension, $100,000 for next 5 year extension, $1,000,000 for next 5 years etc.