Fair Use?

This is a fascinating case, particularly for me both as a photographer and a fair-use advocate. You should probably read the story for yourself, but I’ll summarize it here. Andy Baio is well-known and respected in the tech world. He produced an album (Kind of Bloop) based on the songs from Miles Davis’ classic album, Kind of Blue. He got all the permissions and rights he needed to the music, but when it came to the album art, he created a somewhat pixelated version of the original image without getting any permission. It turns out the orignal album-art photo was taken by and belongs to a great photographer, Jay Maisel. Jay sued Andy and they settled out-of-court for $32,500. Andy still feels he was right based on the concept of “fair use.” Here are the two versions: Jay’s original and Andy’s interpretation.


What do you think? Should Andy have been able to sell his album using the cover on the right without first getting permission from Jay? Would you say that Andy’s version qualifies as “fair use” of the original? It’s a tough call for me.

First, you should know that I’m a supporter of and contributor to the Electronic Frontier Foundation (EFF), who played a role in this case, so I’m a strong believer in the fair-use concept. I believe our copyright laws are severely inhibiting creativity and are increasingly just serving a copyright consortium rather than serving the public good, as originally intended. I have some experience in copyright, trademark and other intellectual-property law, but I am not an attorney. I’m a layperson who has taken an interest in this area for decades. Most notably, I am not up-do-date on the latest details of the fair-use doctrine. In other words, I’m not qualified to give a legal opinion about who is right or wrong in this case — only an emotional one.

Given that disclaimer, I do have an opinion, event though it’s not based in law. To me, I think Andy’s image is a derivative work that goes beyond what I consider to be fair use. From a purely practical point, I can’t figure out why Andy didn’t try to get permission to use Jay’s image in the same way as he did for the music? Did he think it was somehow more incidental? If you’re a photographer, your images are as important to you as a song might be to its composer. This is an iconic album cover, which on one hand suggests that it’s fair game for fair use, but it’s also a work of art and deserves the same protections as any other.

Ultimately, Andy asks an important question at the end of his blog post (scroll to the bottom of the page) where he writes, “Extra credit: Where would you draw the line?” Is there some point in abstracting the image at which the original image is obscured to the point at which the derivative work is no longer infringing of Jay’s copyright? Is this even a legitimate way to evaluate the issue? A fascinating debate in any case. What do you think?

Update: I should have mentioned that I first heard about this from Thomas Hawk, for whom I also have great respect. In this case, however, I disagree with him. But check out Thomas’ blog post and the comments.

Salvaging the Shoot

Once again, I’m determined to get the shot. In this case, it’s the full moon rising behind downtown San Francisco. Last night was my first attempt, but given the horrible results, it won’t be my last. I was about to delete all the images from the session, but first I decided to play with them to see how much I could extract before giving up.

Like all serious shoots, it began with research.

  • The experts told me the best time to shoot is when the moonrise is 30 minutes before sunset. That’s often the night before full moon on the calendar. In this case (June 14, 2011) moonrise was at 7:48pm and sunset was8:33pm. Not a bad spread.
  • To find the best position I used The Photographer’s Ephemeris, an awesome iOS app that shows you the exact position of the sun and moon on any date at any time.
The Photographer's Ephemeris
The Photographer's Ephemeris

Everything was ready, save for the one big fear: the fog, which everyone knows can come barreling in through the Golden Gate during the summer. But fog didn’t turn out to be the problem. Due to a moderate high-pressure system just offshore, there was no marine layer and no wind. And that meant haze and smog: a fairly heavy layer up to about 1,000 feet. Yuck.

But having gone this far, I schlepped all the gear (including a second body+tripod for a timelapse) to the location where I found three other photographers, all with Nikon gear. Two of them had pinpointed the location using The Photographer’s Ephemeris as well. It was so hazy, we couldn’t even see the moon until it was well above the skyline, so the photo below is one of the first of the evening. And one of the best. This was shot about 25 minutes before sunset.

Original from the Camera
Original from the Camera

As you can see, it’s horribly flat and dull. After some tweaking in Lightroom, I was able to recover some of the contrast and clarity:

With Global Lightroom Tweaks and Crop

Yes, I could have further lightened the unnaturally dark and saturated water and made a number of other improvements, but I just didn’t want to waste a lot of time on this one.

I posted the tweaked image on Facebook, where photo pal Scott Loftesness suggested I see how it looked as a black-and-white. I popped it into Silver Efex Pro 2, where I spent some time making a number of global and local adjustments and ended up with this:

Further Tweaked in Nik Silver Efex Pro 2

What do you think? It’s still not at all the shot I’m looking for, but compared to the original, I think it’s at least a serviceable image. If nothing else, it shows that if you keep working at it and consider all the options (b&w in this case) you can sometimes salvage a shot that would otherwise end up in the trash.

Update: I went back and tweaked the moon. First I changed the mapping from RGB into b&w, then I adjusted the contrast. Finally, I used a layer mask in Photoshop to merge the enhanced moon into the original image. It gives the picture an entirely different look, doesn’t it?


Happy Birthday, The Conversations Network

Yesterday was the 8th anniversary of IT Conversations, the longest running podcast in existence and the flagship channel of The Conversations Network. Since its founding, The Conversations Network has published 2,918 audio programs for an average of one every day for these past eight years.

Thanks to our members,major supporters and TeamITC, the wonderful folks you never hear about that bring you those new programs every day.