"Fair use" or plagiarism?

[ghostjmf]

just for a little more elaboration (yeah! you all want my little more elaboration! well, this is a pet topic of mine) I do, as you might suspect, think the "fair use" of musical phrases should be more like "fair use" in graphic art.

In other words, if you used a little bit of someone else's melody, but built a different song around it, did really creative things with the rhythmical portion, etc, the copyright hounds should cut you some slack.

A lot of traditional music is like that; you hear melodic phrases repeated from song to song, without it sounding "all like the same song". You hear a reel turned into a bluegrass breakdown (OK, we're using examples from my kinda music), that kind of thing.

On the other hand, one thing I absolutely hate is sampling a la rap. More power to the Turtles for getting a law passed that limits the length of a sample used (this was after someone taped, from their recording, the background they had worked on for weeks using tape loops in the 70s for one of their songs & plopped it down in its entirety behind a rap piece).

In my opinion, if someone else's music inspires you, then act inspired, for Pete's sake. Play that melody, rhythm, whatever on your own instruments. If you must digitally sample stuff because you can't actually play any instruments, perhaps, then at least put the stuff through some more "effects" programs to change it in some way. Just out-&-out lifting something someone else not only composed, but recorded, & dropping it unchanged into your recording is not only distracting (for those who recognize the source), its stealing, in my book.

Even though the law allows a few seconds worth.

[ghostjmf]

And back to the original question, why & when a photograph under "fair use" isn't considered art itself:

I bet a lot of photographers are miffed that candid, as in "unposed" photographs are not considered art by the copyright law. Any good photographer will point out to you instances of their having waited for hours for just the right lighting to hit that mountain peak, etc. Now, technically, since they didn't bring the sun in & move it around, or go rip out some less than beautful trees on the mountain, that mountain peak (or that Obama) is a candid, not a posed, & therefore not an "art" photograph. But in reality a lot of art went into it.

As a photographer friend of mine said after looking at a friend's wedding pictures that had been taken by amateurs; "Gee, a lot of these people don't seem to have heads". Now, through the miracle of modern technology, there are now cameras that won't take the picture unless they sense a head somewhere in there, but there are still other things the non-art-photographers can screw up.

[MarleysGh0st]

And back to the original question, why & when a photograph under "fair use" isn't considered art itself:

I bet a lot of photographers are miffed that candid, as in "unposed" photographs are not considered art by the copyright law. Any good photographer will point out to you instances of their having waited for hours for just the right lighting to hit that mountain peak, etc. Now, technically, since they didn't bring the sun in & move it around, or go rip out some less than beautful trees on the mountain, that mountain peak (or that Obama) is a candid, not a posed, & therefore not an "art" photograph. But in reality a lot of art went into it.

Actually, I thought the quotations you provided from NPR were quite persuasive, but now you're arguing against them.

I started a long reply here, but I'll summarize it into a question: In your opinion, what specific factors of this particular unposed portrait should be the property of the AP, rather than the property of Obama, himself (it is his image, after all) or public domain?

[Ritterskoop]

Stephen Schwartz loves to tell that he used the first seven notes of "Over the Rainbow" in the "Unlimited" theme in Wicked, because he says at eight notes, ASCAP comes to get you. But seven is OK, if you change the timing to where it's unrecognizable, which is basically is. Even if you know where to look for it, it's so different timewise, it's not the same tune.

[ghostjmf]

Marley says:

Actually, I thought the quotations you provided from NPR were quite persuasive, but now you're arguing against them.

You're right; in my original post I had a grumpy "law's the law". 'Cause its the law. But I don't like how this particular law unfolds. For photography, it tells the photographer that their unposed-by-the-subject shot, which they, the photographer posed themself all day to get just right, is not art, & wasn't sold by the newspaper that printed it as art (but rather as news), so its OK for the artsy embellishment of their work to go without any royalties paid to them. I don't like that law. I feel the work is at best a collaboration between photographer & embellisher.

Whereas for music, as Ritterskoop points out, the embellisher can reuse 8 little notes in a melodic line out of maybe 100s of similar melodic lines in a piece, & they're toast. (Or as Ritterskoop specifically pointed out, just use 7 melodic notes of a very familiar phrase, drop or change the 8th, & say "hah hah on copyright" even though everybody knows what tune they were ripping off.)

What if the embellisher points out that that 8-note melodic phrase is the exact call of the Scary Feathered Loon, or whatever? And that said loon learned it neither from a recording or live performance of the copyrighted piece, but that biology researchers can prove its an inborn Scary Feathered Loon call phrase. Does that copyright that's been infringed still hold? Its all part of the "what is traditional" argument about music. Very often a tune has been around in various forms for centuries. Then somebody writes it down & puts their name on it & voila! its "their" tune.

There are lots of famous cases of this. One is the bluegrass standard "Orange Blossom Special". Everyone knows the people whose names are on it didn't write it, for one because they openly said so. They were just the 1st to "write it down".

[ghostjmf]

Marley says:

In your opinion, what specific factors of this particular unposed portrait should be the property of the AP, rather than the property of Obama, himself (it is his image, after all) or public domain?

Well, to start with Obama is public domain, as he's a public figure. Any photo, candid or posed, of a private citizen has to have the permission of the subject before its printed. That's fairly recent law, but one my photographer friend ran into when trying to take "kids in the park" shots for a magazine piece.

If I got to make the law, I'd do a 50/50 royalty split. If the image had a different expression, or the head were tilted at a different angle, or the subject was artisto-shopped into medieval garb, then maybe the split should be more toward the artist.

[gsabc]

Interesting thought: Suppose I were to take the same photo, play with it in some other artsy fashion that would still leave it, and therefore its resemblance to the "Hope" piece, recognizable and start selling posters. Would Fairey be able to sue me successfully for infringing on HIS artwork, even though we did different things to the same starting photo and my work had nothing to do with his?

[Bob Juch]

Interesting thought: Suppose I were to take the same photo, play with it in some other artsy fashion that would still leave it, and therefore its resemblance to the "Hope" piece, recognizable and start selling posters. Would Fairey be able to sue me successfully for infringing on HIS artwork, even though we did different things to the same starting photo and my work had nothing to do with his?

Could he sue? Yes. Could he win? Probably not.

[gsabc]

Interesting thought: Suppose I were to take the same photo, play with it in some other artsy fashion that would still leave it, and therefore its resemblance to the "Hope" piece, recognizable and start selling posters. Would Fairey be able to sue me successfully for infringing on HIS artwork, even though we did different things to the same starting photo and my work had nothing to do with his?

Could he sue? Yes. Could he win? Probably not.

That's why I inserted the word "successfully". You can sue for anything, as witness that fool and his dry-cleaned pants in DC.

[MarleysGh0st]

Marley says:

Actually, I thought the quotations you provided from NPR were quite persuasive, but now you're arguing against them.

You're right; in my original post I had a grumpy "law's the law". 'Cause its the law. But I don't like how this particular law unfolds. For photography, it tells the photographer that their unposed-by-the-subject shot, which they, the photographer posed themself all day to get just right, is not art, & wasn't sold by the newspaper that printed it as art (but rather as news), so its OK for the artsy embellishment of their work to go without any royalties paid to them. I don't like that law. I feel the work is at best a collaboration between photographer & embellisher.

Did this photographer spend significant time composing that shot? I haven't read any details about it, but it appears to me to be a routine photo from a routine campaign appearance. I wouldn't be surprised if there were a whole busload of photographers taking very similar photographs at the same time.

So what facets of this pose become the property of the photographer (or of the AP, his employer)?

Obama's head is facing the camera, while his body is turned about 45 degrees away (is there a technical term for that pose?)--does the photographer own all representations of that?

Obama's head is also tilted (more so in the photo than in the artwork)--does the photographer own the tilt?

Obama's expression is serious, but fairly neutral--does the photographer get a royalty every time someone else depicts him with that expression?

There's an American flag in the background, which I believe, is a common backdrop at many, many campaign appearances by many, many candidates. But can the photographer charge for using that from now on?

I don't want to deprive artists of their property rights when they've created or captured something unique, but this photo seems to be a very ordinary image of a very public figure. The artist looking at the photo for his inspiration is hardly different than looking directly at the man, in this instance, except that you can't get a busy candidate to stand still long enough for a painting.

[ghostjmf]

Despite that it looks "hey I could have taken that photo myself" to you, maybe the photographer did wait all day to get just the right shot. And its probably likely that they took maybe 20 shots, & picked the one they liked best to send in. That's an artistic call, too.

And while there may have been 20 other photographers taking 20 shots each, however long each photographer waited, AP liked & bought this one.

Its basically the disrespect of photography that I'm mad at here. Especially candid photography, which may be "unposed" for the subject, who may even be unaware their picture is being taken (though I'd bet you Obama was aware), but isn't really unposed to the waiting photographer. (I don't need to give examples here but I will!!! Al those "as fat as you can make her look" recent photos of Jessica Simpson surely were unposed by Simpson, but you can bet the creep waiting in the bushes with the camera made sure to get a "fat as you can make her look" camera angle. I'm certainly not a fan of Simpson, but I hardly think those "get as many extra chins in as you can" photos are unposed as far as the photographer is concerned.)

I don't think the angles of head tilt should be dissected too closely. I just really wish that more people/corporations were willing to admit they were involved in a long-distance artistic collaboration, in which some of the participants may be unknowing, unwilling or even un-alive at the time, but are still participants based on their work being used.

Especially with music, which matters more to me than visual art.

[Bob78164]

Any photo, candid or posed, of a private citizen has to have the permission of the subject before its printed. That's fairly recent law, but one my photographer friend ran into when trying to take "kids in the park" shots for a magazine piece.

I doubt that's the law anywhere. Such a law would have serious First Amendment problems. People often seek releases as a matter of prudence, but merely printing a picture of someone without their consent is not actionable. --Bob

[ghostjmf]

I'd said:

Any photo, candid or posed, of a private citizen has to have the permission of the subject before its printed. That's fairly recent law, but one my photographer friend ran into when trying to take "kids in the park" shots for a magazine piece.

Bob78164 says:

I doubt that's the law anywhere. Such a law would have serious First Amendment problems. People often seek releases as a matter of prudence, but merely printing a picture of someone without their consent is not actionable. --Bob

Law? OK, I dunno. Thought it was, obviously. But: I do know that you would be hard-pressed to find a magazine that will even consider looking at your pictures for purchase without having releases signed by the human subjects (or their parents) accompanying them.

A lot of the releases have particularly slimy terms, essentially giving the magazine the right to do anything they like with your likeness, which is why a lot of people won't sign them. The magazines my friend was trying to sell to did not want to ever see any royalty claims from the subjects of the photos. And even though the pictures were submitted for a very innocuous "fun in the park" assignment, one of the magazines actually did use a kid's picture to illustrate a different article, an opinion piece that the kid's parents did not agree with, & which they felt the use of themselves & kid in picture implied they did agree with, leading the parents to rumble about lawsuit even though they had signed the release.

[VAdame]

Gawd, I love Bad Reporter:



(See last panel)

[jarnon]

(God, I love exhuming old topics!)

Iconic Obama ‘Hope’ Poster Artist Shepard Fairey Makes Kamala Harris Print With a New Message: Forward



No fair(ey) use issues here: The graphic is available for free download and noncommercial re-use on the artist’s website. He wasn’t paid for the design and won’t receive any financial benefit from it. The photo that inspired him was taken by an official White House photographer.

IMHO, Fairey applied a lot of artistry and didn’t just transfer the photo to a different medium:

[Beebs52]

Unfortunately, it doesn't look like her. Looks like some Netflix actress. Can't place it.

[Vandal]

Looks like Erin Krakow of Hallmark fame:

[Beebs52]

[littlebeast13]

He needs better AI filters. That honestly (and non-politically) looks like shit...

lb13