Fair Use? Or Copyright infringement?

[Morrigoon]

Interesting post relating to a Fair Use case - guy creates an album based on "Kind of Blue" but re-interpreting the music in 8-bit digital videogame sound. Gets all the music permissions, etc. But runs into trouble relating to the cover art, which he perceived as "fair use" because of the way he had transformed the work. The original artist (and associated attorneys) disagreed.

What do you think? Is the 8-bit art transformative enough, or does one need to account for layout, framing, shadow, etc. as a significant enough contribution from the original artist's vision to say that the new cover is an infringement?

http://waxy.org/2011/06/kind_of_screwed/

[Disneyphile]

I really don't think that's "far" enough away from the original cover art. Looks like they took the original piece and just ran a quick filter on it. I have to agree with the original artist.

[Ghoulish Delight]

To me, the relevant thing about this story isn't so much whether it's fair use or not. That's debatable. What's unsettling is that it proves, once again, that anyone with money can just bully anyone else out of even trying by threatening costly legal action.

The guy was not making a lot of money off of this thing. Even if he had a solid case (which he thinks he did), he could not have afforded to fight it. Even if he won, he would have had to spend more than it cost him to just settle it and make it go away. Which is a fvcking pathetic state of affairs, imo.

[innerSpaceman]

It might surprise no one to find I disagree. If you're going to go into something with even a remote potential for legal troubles, you best figure in the costs of that when you decide whether your planned enterprise might be profitable.

I don't think it's "bullying" to defend your copyrights with legal action, if informal settlement efforts lead nowhere.

[Ghoulish Delight]

you best figure in the costs of that when you decide whether your planned enterprise might be profitable.

I don't think it's "bullying" to defend your copyrights with legal action, if informal settlement efforts lead nowhere.
But it's not about being profitable or not. It's about the fact that it actually cost him less to settle than it would have to WIN the case. That is a misaligned system, in my eyes. And it makes people afraid to be creative.

[Frikitiki]

Something that I learned about copyright is that ultimately the decision of fair use or infringement comes down to the judge and what they decide.