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@Ctein No, I'm not making a funny distinction. There is absence of the specific exemptions for fair use (newsworthy, purposes of criticism/analysis, etc.); none of these have been asserted by any of the parties, so we're not bothering to discuss them. Not relevant. You are wrong that a given use must fit into a specific category to be fair. Under 17 USC § 107, "the fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." The phrase "such as" indicates that the list is not exhaustive but exemplary. Additionally, there is at least a decent argument to the effect that Baio's cover operates as a "comment" on Kind of Blue's original cover.
Ctein, I think you're drawing a funny distinction here—and one that the law does not make. The fact that a work is derivative of another work does not mean that the work is not fair use. Indeed, even a verbatim copy can be fair use in certain circumstances (for purposes of news reporting, for example). Fair use only comes up as a defense to a prima facie showing of infringement. Baio and his supporters, as far as I can tell, are not claiming that Maisel cannot make this prima facie showing. Rather, they argue that the Kind of Bloop cover is nonetheless protected under the doctrine of fair use. This is a point that seems to be lost in the discussion here.
What about the fact that Baio's cover is a comment on the original? Similar to the parody at issue in Campbell v Acuff-Rose, the image here was intended as a commentary on Maisel's original photo and, as such, had to invoke that image in order to be effective.
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Jun 24, 2011