2016 Magic Number Thread

[Tracer Bullet]

THIS IS A GETTY IMAGE BUT I HOSTED IT ON IMGUR SO ITS COOL

 

That's not how it works.

 

D'oh I thought it was an issue with taking images hosted off of Getty, but it dawns on me that I'm a moron and its Getty owned images. Well at least they're less likely to find the abuse of the image if its hosted on another site.

 

Fine I'll take it down....this was the image

 

http://i.imgur.com/Lz5E8nY.png

 

if you want to get technical, that's a derivative work and still infringing. Now Getty is going to come after you guns a blazin.

[UMFan83]

 

That's not how it works.

 

D'oh I thought it was an issue with taking images hosted off of Getty, but it dawns on me that I'm a moron and its Getty owned images. Well at least they're less likely to find the abuse of the image if its hosted on another site.

 

Fine I'll take it down....this was the image

 

http://i.imgur.com/Lz5E8nY.png

 

if you want to get technical, that's a derivative work and still infringing. Now Getty is going to come after you guns a blazin.

 

No way, in the ACTUAL image, his jersey says Garciaparra. If Getty is reading this, I was ACTUALLY drawing a picture of imaginary future Cub Mark Nomar

[Banedon]

Also he was WAYYYYY too lazy to spell Garciaparra in MS Paint.

[Sammy Sofa]

Famous bloody-handed murderer Mark Nomar with his distinctive vagina-chin.

[seanimal]

presence of ads?

 

that was the most obvious reason to me, but I'm curious if that actually matters or if whether or not a profit is realized is more important a factor

 

hopefully now that cubinny has half of nsbb on retainer, someone can make room for pro-bono work to address my question

 

do you really want an answer?

 

yes

 

please bill to:

Mr. Cubin Ny

14 Robert E. Lee St.

Heritage, AL (whatever the zip code for Alabama is)

 

(clearly I'm just substituting my own definition of fair use and wondering why the world isn't conforming to it, but I am actually curious what disqualifies this from the legitimate legal framework (so that I can pretend I'm an expert on twitter))

[seanimal]

 

D'oh I thought it was an issue with taking images hosted off of Getty, but it dawns on me that I'm a moron and its Getty owned images. Well at least they're less likely to find the abuse of the image if its hosted on another site.

 

Fine I'll take it down....this was the image

 

http://i.imgur.com/Lz5E8nY.png

 

if you want to get technical, that's a derivative work and still infringing. Now Getty is going to come after you guns a blazin.

 

No way, in the ACTUAL image, his jersey says Garciaparra. If Getty is reading this, I was ACTUALLY drawing a picture of imaginary future Cub Mark Nomar

 

and everyone knows that nomar didn't get cat eye transplants until well after his time on the cubs

[jersey cubs fan]

Famous bloody-handed murderer Mark Nomar with his distinctive vagina-chin.

not a lot of vaginas in D.C.?

[Sammy Sofa]

Famous bloody-handed murderer Mark Nomar with his distinctive vagina-chin.

not a lot of vaginas in D.C.?

 

The Digusting Baseball Chin is all the rage.

[minnesotacubsfan]

This needs to be posted daily until we spray champagne all over their stupid field.

 

http://www.stltoday.com/sports/baseball/professional/wild-card-molina-still-eyes-a-run-at-nl-central/article_69672170-1f8d-541b-bf9a-22b8171be9d2.html

http://uploads.tapatalk-cdn.com/20160909/82eeee9795f179709d907ac1b2aab872.jpg

[Tracer Bullet]

 

that was the most obvious reason to me, but I'm curious if that actually matters or if whether or not a profit is realized is more important a factor

 

hopefully now that cubinny has half of nsbb on retainer, someone can make room for pro-bono work to address my question

 

do you really want an answer?

 

yes

 

please bill to:

Mr. Cubin Ny

14 Robert E. Lee St.

Heritage, AL (whatever the zip code for Alabama is)

 

(clearly I'm just substituting my own definition of fair use and wondering why the world isn't conforming to it, but I am actually curious what disqualifies this from the legitimate legal framework (so that I can pretend I'm an expert on twitter))

 

ok, but same disclaimers apply (me = lawyer; but not your lawyer; this isn't legal advice).

 

Fair use is a crazy muddy gray area. what one "expert" in IP thinks is fair use, including judges in the 2nd and 9th circuits (which see more IP cases than probably all other circuits combined), another will think is clearly infringing. But here's the quick and dirty analysis.

 

I. Fair use is a defense. That means it's only relevant if what you're doing is copyright infringement. Also keep in mind that fair use is primarily intended to balance two things so important that they're both protected in the Constitution - copyright law and free speech. So it's rarely easy and not really supposed to be.

 

II. So was this infringement? Copyright gives the owner (photographer, his employer, or company that bought the rights) certain exclusive rights, including the rights to make copies and display them publicly, which is what is at issue here. Answer is pretty obvious.

 

III. Assuming infringement took place, should the fair use defense apply? That's a fact-intensive question, considering these 4 factors:

 

• A. Purpose/chracter of the use
  B. Nature of the copyrighted work (the photo)
  C. Amount/substantiality of the work (photo) that was used relative to the whole
  D. Effect, if any, upon the market value of the work (photo)
  

 

There's no magic formula. It's not a majority rule and the relative weight given to those factors can change from case to case (and judge to judge). In many cases, #4 trumps all to find no fair use, but in some cases, the first factor can seemingly end the analysis in favor of fair use. Just for fun, let's run through them here.

 

A. Purpose/character of the use - there are some ways that you can use someone else's work that make it more likely that the use will be considered fair use. Transformative uses (changing the character of the original) are good examples. If what you've done with someone's work "contributes to the public knowledge" then it's likely fair use. Creative works are protected by copyright in order to encourage creative contributions to society.

 

Also, some purposes have more leeway, like education, commentary (or parody) and news. Note that doesn't mean schools get to infringe on whatever copyright they want because they're schools. You can't make a hundred copies of a book and say "educational purposes!" and get out of jail free. But if a prof wants to show a few minutes of a video in class (infringement!) to illustrate a point, fair use would be their defense. Also, parody has a meaning. Using someone else's work to make a humorous work doesn't make it a parody.

 

Here Not helpful. Picture copied/pasted for the same purpose the owner made of it. What might help? Using a couple pictures to comment upon baseball in some way. Taking an image and making it much different. Below is an example of a transformative use that audiences usually get wrong.

 

 

http://ncac.org/wp-content/uploads/import/Cariou_v._Prince_pic.jpg

 

 

B. Nature of the copyrighted work - i.e., how creative is the thing you copied? The bar for fair use is lower if the creativity involved is lower. But the bar for creativity sufficient for copyright protection is REALLY LOW. So this is rarely meaningful. Most copyrighted works in fair use cases are creative and entitled to copyright protection.

 

Here Not helpful. Photographs are considered creative.

 

C. Amount/substantiality of work used - did you use all or part of a work? An important part? Again, there's not a standard below which, you're free. A very small percentage can be substantial. My go-to example - use the first 5 notes of Satisfaction and see how your fair use defense does in court. The more of the work used or the more important the portion used, the less likely the use was fair use.

 

Here the work is the photo. if the whole photo was copied, then this isn't helpful for finding fair use.

 

0/3 so far. Things are not trending well for fair use.

 

D. Effect upon the market or value. If the infringement destroys or harms the value of the work (either by removing the mark or damaging the reputation or value), then it's almost certainly not going to be fair use. But if the use has no impact on the market of the original, then fair use is more likely.

 

Here Less obvious than the others, but probably also not helpful or maybe neutral. Some companies make money by licensing images online. The fact that they're easy to find on google doesn't mean that they're free. Will others be less likely to pay to license photos if they know they can use them for free without threat? Um.

[Liam Neeson]

[Tracer Bullet]

I paid roughly $150,000 not to learn all that in law school, but you guys should all paypal me that amount. thanks

[minnesotacubsfan]

I paid roughly $150,000 not to learn all that in law school, but you guys should all paypal me that amount. thanks

 

Send Tim the bill

[Hairyducked Idiot]

I learned a crappier, off-brand version of it in comm law for a lot cheaper. If anyone wants a worse interpretation for 1/5th that price, I'll undercut him.

[Tracer Bullet]

 

NO

 

 

not a response to your post, but the one-word answer to Sean's question

 

[seanimal]

you see, we should think of the message board post with a getty image as being like floor 7 1/2 and then the internet is what's between that one door and john malkovich's eyeballs. what i'm saying is I don't think the law has caught up to the technology. i can say that comfortably because you explained it to me and now i'm an expert

 

also, it would seem getty is gaming the system and running a copyright troll business on the side

[David]

Once in a while, I regret my decision to skip law school (and its expense) and work for the family business. Now is not one of them.

[Tracer Bullet]

you see, we should think of the message board post with a getty image as being like floor 7 1/2 and then the internet is what's between that one door and john malkovich's eyeballs. what i'm saying is I don't think the law has caught up to the technology. i can say that comfortably because you explained it to me and now i'm an expert

 

also, it would seem getty is gaming the system and running a copyright troll business on the side

 

law certainly hasn't caught up with technology. it's not really possible for law to keep up, even before the more recent refusal of congress to work together to do anything. But can someone help me understand why copyright protection for some things, like photos and music in particular, should vanish simply b/c technology made them easier to copy/share? it hurts companies, like getty and record labels, but they pass on a big chunk of that pain to the artists.

 

trolls are the ones that send you demands for what's probably not infringement or based on rights that are invalid, but the cost of which is lower than the cost to fight. i'm not saying getty does or doesn't do that, but that's not this. i've had many clients that have received those letters and been faced with a stupid choice of (on the lowest end) paying $2,000 for a license to use an image on a commercial blog post (that they'd already posted) or pay me more than that to fight it. Got someone now faced with a $55k "license" for the dumbest patent you've ever seen. I've heard similar complaints lodged against getty in the past, but I think they've made some adjustments to their enforcement procedures. more likely now if getty contacts you, they actually have the rights they claim to and what you're doing is actually infringing.

[Tracer Bullet]

 

D'oh I thought it was an issue with taking images hosted off of Getty, but it dawns on me that I'm a moron and its Getty owned images. Well at least they're less likely to find the abuse of the image if its hosted on another site.

 

Fine I'll take it down....this was the image

 

http://i.imgur.com/Lz5E8nY.png

 

if you want to get technical, that's a derivative work and still infringing. Now Getty is going to come after you guns a blazin.

 

No way, in the ACTUAL image, his jersey says Garciaparra. If Getty is reading this, I was ACTUALLY drawing a picture of imaginary future Cub Mark Nomar

 

i'm mostly joking

[Sammys Boombox]

http://cache2.asset-cache.net/xt/51636590.jpg?v=1&g=fs2%7C0%7Cafp%7C36%7C590&s=1

 

http://img.bleacherreport.net/img/slides/photos/002/765/710/hi-res-2582460_crop_north.jpg?w=630&h=420&q=75

[seanimal]

spoilering this for it's off-topicness

 

 

you see, we should think of the message board post with a getty image as being like floor 7 1/2 and then the internet is what's between that one door and john malkovich's eyeballs. what i'm saying is I don't think the law has caught up to the technology. i can say that comfortably because you explained it to me and now i'm an expert

 

also, it would seem getty is gaming the system and running a copyright troll business on the side

 

law certainly hasn't caught up with technology. it's not really possible for law to keep up, even before the more recent refusal of congress to work together to do anything. But can someone help me understand why copyright protection for some things, like photos and music in particular, should vanish simply b/c technology made them easier to copy/share? it hurts companies, like getty and record labels, but they pass on a big chunk of that pain to the artists.

 

trolls are the ones that send you demands for what's probably not infringement or based on rights that are invalid, but the cost of which is lower than the cost to fight. i'm not saying getty does or doesn't do that, but that's not this. i've had many clients that have received those letters and been faced with a stupid choice of (on the lowest end) paying $2,000 for a license to use an image on a commercial blog post (that they'd already posted) or pay me more than that to fight it. Got someone now faced with a $55k "license" for the dumbest patent you've ever seen. I've heard similar complaints lodged against getty in the past, but I think they've made some adjustments to their enforcement procedures. more likely now if getty contacts you, they actually have the rights they claim to and what you're doing is actually infringing.

 

my own personal opinion isn't that those things should be free or willfully pirated, and a lot of it is a crime of opportunity rather than any sort of principled position. i think it's easy for some to hand-wave away the implications of theft or abuse via the idea that record labels the publishing houses were incredibly exploitative of artists. and should we really blame them? the major labels essentially ran a cartel that prevented entry into the market. i imagine to some the ends justify the means. they look around and they see artists with far more control over their work, have access to a greater number of artists, and are generally liberated from the vagaries of music publishing. if you never have to worry about making a livelihood from your creative works, then it's probably easy to look at what's happened over the last 10 years and be pleased with how things have developed

 

my point about the technology wasn't so much about the law keeping up in a strict sense, but really more about understanding when new technology is giving us an analogue of a prior application or not. i'm inclined to think that posting article snippets that are behind a paywall is fundamentally different than linking to an image not just because the underlying technological underpinnings are different, but so are the nature of the works and the way in which they themselves are distributed and consumed. here, we're using images to serve as a metaphorical representation of something else, and it's a use that can't be monetized or, at the least, doesn't feel like a material infringement upon the owner's ability to benefit justly from their work. the images are being referenced in conversation and not being re-published as content or repurposed for someone else's intellectual property

 

i dunno, i'm pretty rambly here on cubinny's dime, but my point is that it feels like either the legal framework doesn't acknowledge how this use could be fundamentally different from others it has encountered or it recognizes those differences and doesn't consider them material. what my rant presupposes is... maybe it should? of course, maybe it shouldn't! i'm not in any position to evaluate that

 

anyway, i'm not arguing with anything you're saying or what the law is or even what it should be. just the point of view of someone who could probably pass for a lawyer in a small island nation and also probably the florida panhandle if things get dicey in curacao or whatever

 

[Irrelevant Dude]

[CubinNY]

No ones gettin paid until my question gets answered and then only if I like the answer.

[bukie]

Rockies can no longer catch the Cubs, meaning they need to clinch past another 3 teams to clinch a playoff spot.

[Tracer Bullet]

spoilering this for it's off-topicness

 

 

you see, we should think of the message board post with a getty image as being like floor 7 1/2 and then the internet is what's between that one door and john malkovich's eyeballs. what i'm saying is I don't think the law has caught up to the technology. i can say that comfortably because you explained it to me and now i'm an expert

 

also, it would seem getty is gaming the system and running a copyright troll business on the side

 

law certainly hasn't caught up with technology. it's not really possible for law to keep up, even before the more recent refusal of congress to work together to do anything. But can someone help me understand why copyright protection for some things, like photos and music in particular, should vanish simply b/c technology made them easier to copy/share? it hurts companies, like getty and record labels, but they pass on a big chunk of that pain to the artists.

 

trolls are the ones that send you demands for what's probably not infringement or based on rights that are invalid, but the cost of which is lower than the cost to fight. i'm not saying getty does or doesn't do that, but that's not this. i've had many clients that have received those letters and been faced with a stupid choice of (on the lowest end) paying $2,000 for a license to use an image on a commercial blog post (that they'd already posted) or pay me more than that to fight it. Got someone now faced with a $55k "license" for the dumbest patent you've ever seen. I've heard similar complaints lodged against getty in the past, but I think they've made some adjustments to their enforcement procedures. more likely now if getty contacts you, they actually have the rights they claim to and what you're doing is actually infringing.

 

my own personal opinion isn't that those things should be free or willfully pirated, and a lot of it is a crime of opportunity rather than any sort of principled position. i think it's easy for some to hand-wave away the implications of theft or abuse via the idea that record labels the publishing houses were incredibly exploitative of artists. and should we really blame them? the major labels essentially ran a cartel that prevented entry into the market. i imagine to some the ends justify the means. they look around and they see artists with far more control over their work, have access to a greater number of artists, and are generally liberated from the vagaries of music publishing. if you never have to worry about making a livelihood from your creative works, then it's probably easy to look at what's happened over the last 10 years and be pleased with how things have developed

 

my point about the technology wasn't so much about the law keeping up in a strict sense, but really more about understanding when new technology is giving us an analogue of a prior application or not. i'm inclined to think that posting article snippets that are behind a paywall is fundamentally different than linking to an image not just because the underlying technological underpinnings are different, but so are the nature of the works and the way in which they themselves are distributed and consumed. here, we're using images to serve as a metaphorical representation of something else, and it's a use that can't be monetized or, at the least, doesn't feel like a material infringement upon the owner's ability to benefit justly from their work. the images are being referenced in conversation and not being re-published as content or repurposed for someone else's intellectual property

 

i dunno, i'm pretty rambly here on cubinny's dime, but my point is that it feels like either the legal framework doesn't acknowledge how this use could be fundamentally different from others it has encountered or it recognizes those differences and doesn't consider them material. what my rant presupposes is... maybe it should? of course, maybe it shouldn't! i'm not in any position to evaluate that

 

anyway, i'm not arguing with anything you're saying or what the law is or even what it should be. just the point of view of someone who could probably pass for a lawyer in a small island nation and also probably the florida panhandle if things get dicey in curacao or whatever

 

I've had either too much or too little bourbon to even begin to respond. But I'll gladly accept payment in additional bourbon.