Fair Use

This month there is an interesting article in Digital Photo Pro (January 2012) concerning the concept of “Fair use.” Seems that a musician “redid” the Miles Davis album “Kind of Blue” as an 8 bit cliptune tribute to the original. First question- What the hell is an 8 bit cliptune tribute?? Beats me!!! So… the guy recreated Kind of Blues, one of the greatest albums ever recorded. He contacted the Miles Davis estate and got all of his permissions taken care of, including paying licensing fees. Then came the cover. Since, evidently, photographers don’t really matter, when he contacted the legendary Jay Maisel, who had photographed Miles for the cover in the sixties, and was told he could not use and alter the album cover, he went ahead and did it anyway, claiming fair use, a concept that is often quoted in audio commercial use, but pretty much doesn’t exist, from what I can find. So a lawsuit came about, and Jay Maisel is $32,500 richer. The point is, all photographers should protect their copyright at all costs. Know the law, and pursue claims aggressively.

I regularly get two kinds of calls about this kind of situation:

1. Publications and record companies that want to use one of my photographs as “artist reference.” Regardless of whether they want to paint something loosely based on one of my photographs, or want to copy the photograph exactly as a drawing, they have to pay me an artist reference fee. I almost always agree to this, for a small few, as it usually doesn’t conflict with my ability to license the photo.

2. A visual artist will contact me and ask my permission to paint a painting based on one of my photographs. I always allow them, as they can slightly alter my work and call it a derivative work. So why not let them use it? It is kind of flattering.

My biggest question concerning this issue: The photograph on the cover is a rather simple tight photograph. Why didn’t the producer find a guy who looked like Miles, photograph him and a horn on a black background and digitize that? Could have saved himself a lot of money!!!

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