Life is a Mystery

8 February 2009 . Comments Off on FFR: CBS Classics

FFR: CBS Classics

I guess CBS could not let NBC have all the fun. Instead of joining Hulu, they’ve decided to build their own CBS Classics clone of it. I wish the networks would just build one common platform, but I’m very happy to have all of the original Star Trek available for free!

strek2.jpg

5 February 2009 . Comments Off on FFR: Ocarina

FFR: Ocarina

I wonder how long I can resist. Only $80/month, plus one more dollar gets me Ocarina. Now the iPhone is a musical instrument.

Not only that, but you can use Ocarina to listen in on other people playing the instrument live, anywhere in the world. Woah! I can’t wait till Mary gets home so I can try this out on her iPhone.

Of course, a real ocarina would be a lot cheaper…

Or I could make one out of a carrot

Oops! Time for lunch.

5 February 2009 . Comments Off on Fairey fair use? AP thinks not.

Fairey fair use? AP thinks not.

Holy cow! After all this time the AP is now considering a case against Shepard Fairey for copyright infringement in his use of an AP photo as the foundation of his iconic image of Barack Obama.

apfairey.jpg

Let’s take a look at this from the perspective of the four factors that help courts determine fair use:

Factor #1: Purpose and character of the use… Shepherd Fairey has made some commercial use of this image, this weighs against his case for fair use. Somewhat mitigating this finding, though, would be the degree to which Fairey allowed the image to “go viral”. He was not out to make a buck on this image, he was out to move public opinion. Most of all, the use of this work by Fairey is clearly “transformative”. He took a news photo and made it street art. It is no longer a photograph, no longer “objective”, and not even suitable in the contexts where the original AP photo would have been suitable. Imagine, for example, a newspaper article describing McCain and Obama’s performance at a debate using AP photos to illustrate. Could they substitute the Obama AP photo with the Fairey image? No way, it is much too celebratory, much to subjective, nothing like a news photo. In the end, I think this factor tilts strongly in favor of fair use.

Factor #2: The nature of the copyrighted work… The copyrighted work in this case, an AP photo, was clearly published. This weighs in favor of fair use. It is an artwork (a photo), but not a particularly notable one. It is hardly consumable, in other words the fact that one has a copy of the image as Fairey re-imagined it does not make it any less available as a photograph. All in all, I believe this factor would tend to support fair use in this case.

Factor #3: Amount and substantiality of the portion used… While the Fairey image uses the whole head of Obama, it does not use the flag at all. I see the flag in the AP photo as quite a striking aspect of the photo. Furthermore, the Fairey image does not use any of the original coloring of the photo. At best this somewhat weighs against fair use in my book.

Factor #4: Effect on the potential market for or value of the work… As I noted in factor #1, the Fairey image, while it clearly uses the AP image as its foundation, is nothing like the AP image in spirit. It cannot possibly effect the market for the AP image in a negative way because it is so different in emotional quality from the AP image. In fact, if it has done anything for the AP image’s marketability, it has probably increased it. This is the image on which the icon was founded, that has tremendous value to the AP. It is at least plausible that Fairey’s use of the image has improved its position in the market. Weighing against fair use was the fact that the AP does make a license available and that Fairey did make many copies available for non-educational purposes. Ironically, if Fairey had sought a license he might have been bound to manage the release of his version of the image in a way that would completely undermine his goal of getting a viral “street” image off the ground. This is the hardest factor to weigh, for me, but I think in the end it is at best a wash, maybe a slight tilt toward fair use.

Bottom line: I don’t think the AP has a case that will fly here. In fact, if they pursue it much further, they will more likely set precedent that this kind of use of their images is allowable. In the end, only the courts can really decide this, but I imagine the AP would rather live with the ambiguity than clear case law against them.

Why raise this in the first place? At first blush it seems terribly ham-handed to me and I can’t imagine the AP will get much positive press for the effort. On the other hand, “there is no such thing as bad press.” Everyone will know that the Fairey image is based on an AP photo (did you know that before today?). Everyone will know where to find that original photo. Artists will be cautious (a bit chilled) about using other AP photos without purchasing possibly unnecessary licenses. As long as they don’t actually pursue the case much further, it looks like a winning strategy for the AP.

“We believe fair use protects Shepard’s right to do what he did here,” says Fairey’s attorney, Anthony Falzone, executive director of the Fair Use Project at Stanford University and a lecturer at the Stanford Law School. “It wouldn’t be appropriate to comment beyond that at this time because we are in discussions about this with the AP.”

Good for Fairey, this is exactly the sort of use we need to defend in our culture. If the AP pursues the case, may the whirlwind descend on them!

2 February 2009 . Comments Off on Forgotten road

Forgotten road

A poem I ran across today…

I saw an old, forgotten man
On an old, forgotten road.
Staggering and numb under the glare of the
Spotlight. His eyes, so dull and grey,
Slide from right to left, to right,
Looking for his life, misplaced in a
Shallow, muddy gutter long ago.
I am found, instead.
Seeking a hiding place, the night seals us together.
A transient spark lights his face, and in my honor,
He pulls out forgotten dignity from under his flaking coat,
And walks a straight line along the crooked world.

Written in high school by our 44th president.

2 February 2009 . Comments Off on A little spark

A little spark

This video arrested me today.

With the horrors of the news from Gaza and Israel, I desperately want this video to be a message of peace and hope. It certainly surfs the change meme and Obama’s image (it was even released on 1/20/09). But I can’t understand all of the lyric and what I find about the artists Y-Love and DeScribe does not lead me to expect the message is quite so sunny. (DeScribe writes, for example: “War happens when both sides can’t resolve their issues by talking peacefully – I stand with my brothers in arms.”)

Still, this is a wonderful mix of jewish and black culture. That is enough to celebrate. It also makes a point about technology that I appreciate, “new world… advanced technology… can you feel the engergy… its real dark we just need a little spark.”

Oddly, this came to my attention via a Mac site excited by the presence of MacBooks in the video. Kind of misses the forest for the trees, huh?

Eric Celeste / Saint Paul, Minnesota / 651.323.2009 / efc@clst.org