Can You Commit Copyright Infringement By Using Your Own Work? 172
Mrs. Grundy writes: Notorious appropriation artist Richard Prince has been in the news again with his show consisting of screen shots of other people's Instagram photos printed as large inkjets on canvas. These prints have reportedly sold for $90,000. In 2013 Prince successfully defeated a lawsuit for a previous appropriation by convincing the court his work was 'transformative' and it's likely this new work would also find a sympathetic ear in the court. Among the photographs whose work he used this time were several from the Suicide Girls Instagram feed. In response, Selena Mooney, cofounder of Suicide Girls, began offering exact replicas of Prince's pieces that used her photographs for a mere $90. Photographer Mark Meyer looks at the bizarre possibility that if Prince's use of Mooney's work is transformative and fair, Mooney's might be copyright infringement.
Correct, but silly (Score:5, Insightful)
These issues have been well explored in music, where "borrowing" from others is well known and broadly practiced.
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That may be true, but what TFS doesn't mention is that they added a similar "transformation" to his version.
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or maybe Marcel Duchamp is a pretentious twat.
Re: Correct, but silly (Score:2)
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Good.
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Holy crap, don't you think you took it a bit far? I mean, making a blog post about him, or even criticizing his work is one thing, killing him for being a twat is another.
If we all went around killing twats where would we be?
Happy?
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In patent law, adding improvements to an existing patent X, with another patent Y, does not give you the right to infringe patent X. So transforming an image should not strip of the original copyright holder's right of the transformed image. The transformed image should be jointly copyrighted by original and new copyright owner.
BTW, adding a few lines of text below a photo is not transformative (looks like a webpage) ... looks more like an excuse for theft.
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And in criminal law, strangling someone in their home intentionally is murder.
And in copyright law, transformative work is allowed.
Are we done comparing apples to oranges?
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The photo seems embedded within a new "format". How is this transformation? It should be called embedding (otherwise known as stealing) an unmodified/untransformed photo.
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Strictly speaking it hasn't been ruled "transformative" by the Courts yet. He hasn't even been sued.
That said, that is the argument he'd likely make in Court and he could easily win it.
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That's an awesome defense for The Piratebay.
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Always remember the law is about rigorous logic. It has absolutely nothing to do with common sense.
There are entire schools of art dedicated to "transforming" ordinary objects by putting them in galleries so everyone can speculate about what precisely you meant when you decided to put your unmade bed, a couple condoms, and dirty underwear on a pedestal in a gallery. So plenty of people will defend his work as "transformative" solely because he printed the photos out on really big paper and put them on the w
Re: Correct, but silly (Score:2)
If a work is "transforative" merely because it is displayed in a new context, thus giving it new meaning, then copying a $90k work and selling it for $90 to make a point about how much bullshit this whole "transformative" thing is is therefore also transformative, and thus should be allowed. If some random person was just selling cheap copies to make a quick buck, then this wouldn't apply. But, because it is the original owner of the image selling said transformations-twice-removed (or meta transformations)
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That would be one angle the Court could follow. But I doubt it. It's too much common sense, and not enough logic. "Turnabout is fair play" is only a well-rocognized legal principle in courtroom dramas.
I suspect if this ends up in Court (and I doubt it will), the Suicide Girls would have a pretty good case because you can't tell who created which photo without reading some mighty fine print. The case he won you could easily tell which photos were his re-appropriations because he did shit like add a purple gu
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Always remember the law is about rigorous logic. It has absolutely nothing to do with common sense.
strict logic leads to the conclusion that either, she can sell prints in any size except the one that he did including ones that are merely mm different, or she can't sell any size at all. if the transformative things is to sell in a gallery then if she doesn't do that then she isn't appropriating his work. if the transformative thing is the size of print then any other size is also not his work. if the transf
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You're missing about three assumptions: there are four tests, not one. Specifically [stanford.edu] they are:
1) Is the purpose of the new work different (ie: is it transformed?).
2) The specific nature of the work (you have more right to crib from a biography or a scientific paper then you do from a Novel).
3) The amount of the work used.
4) Whether the new work undercuts the market for the old work.
Test 2 doesn't come into play in this dispute because they're not arguing about the special works that count (unpublished works,
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That's not even close to what happened in this case.
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So neither person has a claim.
And this Price guy's reputation is in the toilet. Things have a way of working out.
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However, bear in mind that copyright only applies to original material, not to pre-existing material. A review which includes a quote is copyrightable, but the new copyright for the review only covers the portion original to the reviewer; the material quoted is only covered by the copyright of the work the quotes are drawn from.
17 USC 103(b):
The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.
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Richard Prince is using entire photographs so I don't think it's a pointless rhetorical question at all. In fact: it seems highly relevant to the discussion at hand.
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Andy Warhol using an image of a Campbell's Soup can in his art did not mean Campbell's had to change their can or stop selling soup.
I don't believe there's any case against Mahoney using the image she m
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The defense of fair use, which worked for the artist, meant he was not guilty of infringement. That doesn't tell us much about the nature of the copyright that may subsist in his (derivative) work.
The original photographs are solidly protectable (well, not protectable from this guy, but I digress). T
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So? She is making another "radical context change"!
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As usual, the Slashdot summary is wrong, although even TFA doesn't make it very clear. The $90 version isn't an exact replica. There's another comment added to the bottom, and without digging into the details I'm guessing it's the presence of the comments that made the $90.000 version "transformative" (In fact it's arguably fair use as well, since it's commentary on the image). Now, of course, the $90 still isn't on the clear at all, because the idea of having the comments as part of the work was part of Ri
Re:Correct, but silly (Score:4, Interesting)
> It's simple, if it's copyrighted, it's copyrighted. It doesn't matter that it's a derivative of your own earlier works.
It's not that simple.
It didn't stop that idiot Zaentz from suing John Fogerty over John Fogerty [mentalfloss.com]. i.e. He believed John Fogerty had plagiarized John Fogerty via his earlier work "The Old Man Down the Road" which sounded too much like "Run Through the Jungle."
How the hell can you be sued for creating a later work when you wrote earlier work?? How can the later work NOT be derivative when it is _your_ *style* ?? This is completely retarded.
When you have the same bloody 4 chords repeated over and over [youtube.com] as Axis of Awesome points out, copyright gets ridiculous. What's next? Suing people because they used the same 3 notes? 2 notes? 1 note?
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John sold his copyright, then copied himself.
Not according to anyone else. His argument was more that he has a certain sound and he sold off the copyright to a particular instance of that sound. The court agreed.
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These issues have been well explored in music, where "borrowing" from others is well known and broadly practiced.
And the result is still the same legal grey area and clusterfuck that it's always been. You can borrow most of a song and get away just fine because you're being "transformative" but if you borrow a single riff from an obscure symphonic version of a rock song you give up 100% of all income from your song to someone who had nothing to do with it. [wikipedia.org]
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I'm pretty sure that, while the frame can be considered as art, you can't sell copies of someone else's image just because you put it in a fancy frame.
In fact, you sure as hell can't sell copies of someone else's copyrighted photo in a frame and call it a transformative work.
You can own the art of the framing, but you sure as hell don't get rights to the work you framed. Not even a little.
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But you can't sell multiple copies, because the act of copying that photo means you have violated copyright. Because you can't make copies in the first place.
I never said you could. I just said that it was different enough to allow copyright to be claimed on the derivative work. I discussed solely B to C relationship, and you took some offense to how you think I'd look at the A to B relationship.
I made no such claim, and hold no such views. Work C is copyrighted by both A and B creators. That C's creator is the same as A's has no bearing to B's claim to copyright.
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Framing something may perhaps give the artist a new copyright, but that doesn't mean that he has a right to violate other copyrights with what he puts into the frame.
I mean, putting a severed head on a plate may be art, but severing the head would still be murder.
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The answer is "yes". Nobody said A loses copyright on B because it was derivative. But, similarly, B doesn't lose copyright on C.
Though, the details in TFA indicate that C is unrelated to B, so B has no claim on C at all, but the similarities caused people
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So did I.
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Except it is a commentary... (Score:4, Interesting)
The whole act of putting the almost exact replica from the original copyright owner is a commentary on the issues of the weirdly selective broad reach of copyright. Thus it should be protected free speach.
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Yes. (Score:1)
Yes, you can commit copyright infringement by using your own work, since using your own work doesn't inherently mean also not using anyone else's work. Also, just because something is "your own work" in the sense that you created it doesn't necessarily make you the copyright holder at all. Next question please.
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Also, just because something is "your own work" in the sense that you created it doesn't necessarily make you the copyright holder at all.
Citation Needed.
Re: Yes. (Score:1)
You need a citation? Try googling "works for hire".
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Also, just because something is "your own work" in the sense that you created it doesn't necessarily make you the copyright holder at all.
Citation Needed.
The Beatles [forbes.com]
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An author's copyrights can be assigned or transferred to a third party. This leaves the author with only the same rights as any member of the general public. (There are a few narrow exceptions, but nothing that would prevent the possibility of an author infringing on the copyright of a work he created)
It's also possible for a person who prepares a work to not be considered the author. This is the case for works made for hire.
And of course copyright isn't mandatory, though that just leads to works being in
Sure (Score:1)
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You should actually read the articles, because the issue at hand is somewhat more complicated.
I wish I still had mod points today, because while I find what Prince is doing to be disagreeable and slimy... you're absolutely right.
Now, regarding his high-end clientele - it's funny how often it's demonstrated that "a fool and his money are soon parted". Wealth is so obviously not a proxy measure of intelligence.
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Artists are jerks (Score:2)
Wait what?!? (Score:2)
I thought the rule was, when the headline asks a question the answer is always "no". This must be one of those rare exceptions.
Infringing your own works? (Score:5, Informative)
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My first though was of the patent troll that accidentally sued itself. I'd provide a link, but my Google-fu is not working today.
Obviously her performance is also transformative (Score:5, Interesting)
"The price point itself is an artistic expression of the desirable commoditization of art. By taking a formerly expensive piece of art and making it available to the masses, the artist instills in us the notion that the artificial scarcity of mass producible artifacts creates an elitist vehicle for abstract investments, whereas actual art belongs in the hearts and minds of people, not in their vaults. This performance makes palpable the disgust that we feel when confronted with the personality cult that drives the commercial art scene."
Re:Obviously her performance is also transformativ (Score:5, Interesting)
"The price point itself is an artistic expression of the desirable commoditization of art. By taking a formerly expensive piece of art and making it available to the masses, the artist instills in us the notion that the artificial scarcity of mass producible artifacts creates an elitist vehicle for abstract investments, whereas actual art belongs in the hearts and minds of people, not in their vaults. This performance makes palpable the disgust that we feel when confronted with the personality cult that drives the commercial art scene."
I completely agree and wish that I had mod points. I see her response almost as a parody of the ridiculousness of the entire situation. I don't know how a court would decide, but I would definitely argue that the response is transformative in the same way as Prince's work. The only problem is the way in which she was "marketing..these prints as cheaper alternatives to Prince’s.." and that would make the argument that they are a new work of art very difficult.
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The only problem is the way in which she was "marketing..these prints as cheaper alternatives to Prince's.." and that would make the argument that they are a new work of art very difficult.
How so? They are alternatives, substitutes even. That is the point. The price for that piece of art is arbitrary and inflated by artificial scarcity, which she denounces and replaces with accessible art for the masses, thus showing us the true colors of the commercial art world, which, even when faced with appropriation art, still favors scarcity over impact. If the number of copies is so important to the art establishment, then how is changing the number of available copies not an artistic act? And to real
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... to really drive it home, she does it in a performance that is thinly veiled as a commercial endeavor: Art posing as business in response to business posing as art. You'd have to be a complete philistine to not recognize it.
Brilliant! Everything is part of the performance! I really love it. It takes it to a whole new level of meta.Thank you for that insight.
I had never thought of framing it like that. I had approached the situation from the assumption that her actions were of anger/spite, but you're absolutely correct. I wonder how deep this rabbit hole can go...
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Oh how I wish I had mod points! +1
Pah! (Score:2)
If the barrier for what constitutes "transformative" is set very low, it's only reasonable for the courts to set the bar on what is considered "derivative" very high. If he has protection for transforming her own work then she should have similar protection for deriving from her own work. As soon as he does something transformative, it becomes obvious.
Additional Equally Banal Comment (Score:4, Interesting)
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The key to this is that Mooney is "transforming" Prince's "work" in exactly the same way he "transformed" hers. If her use is infringing, so is his. The "transformation" of simply making a large printout isn't going to fly. Copyright doesn't depend on the size or transmission method.
I don't think that argument is going to fly, because you could argue the same about landscape photography. Nature isn't copyrighted and you could have been at the same place at the same time choosing to capture the same image. Yet that particular image is copyrighted. I think the argument will be that even though it's transformational, it is also part original. Imagine for example a news article, even though it may quote pieces of a book for context, it clearly also contains a lot of the journalist's origin
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Of course. (Score:3)
It's called "self-plagerism [ithenticate.com]," and it most commonly occurs when someone publishes a paper in a journal that claims the copyright. Then, if the author uses their text without approval, it's a copyright violation.
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Sorry, but yes; self-plagiarism can be a copyright problem. Publishers usually have you sign away your copyright to them before they will publish your work. They can then legally prevent you from publishing your work with another publisher or yourself. Sure, the author usually retains a moral right to be identified as the author, but the right to profit from the work can be sold to others. If the author creates another work too similar to the first, i.e., they plagiarise themselves, then that can be just as
Pirate bay should do that (Score:3)
Just add their logo in the bottom corner of all the movies and call it art.
But of course the law is about playing favorites ...
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There is no way (Score:2)
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Copyright should be considered a privilege (Score:2)
The problem is that copyright has been treated as a right similar to free speech and real world property rights, maybe not as essential but still something that a person "naturally" deserves. Sure copying is stealing in some non-legal senses of the word "steal", and of course, there are no really natural rights since even the right to life is forfeit in certain circumstances (like when you have a dynamite strapped to your waist and running toward a group of people threatening to blow them up). But copyright
Yes, you can (Score:2)
Not relevant since the original didn't sell rights (Score:2)
Stupid situation and an abuse of the legal system - yes.
The same thing - no.
They're not exact replicas (Score:2)
Good to know (Score:2)
My work is 'transformative' as well, when I re-encode blue-ray disks to .mkv
Re:stupid (Score:5, Insightful)
It is if you have the right lawyers.
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People said exactly the same thing about Prince's use of Patrick Cariou's photos where he reproduced Cariou's photos with a few objects pasted on. But the court saw it differently.
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> screen shots of other people's Instagram photos printed as large inkjets on canvas
This is no way that this is "transformative."
Nor "art":
> appropriation artist Richard Prince
Appropriation (art) [wikipedia.org]
Re:stupid (Score:4, Insightful)
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so much of what passes for art these days is degenerate shit.
I agree - and i think this is happening because we are "forced to respect" every degenerate shit, without the propper criticism (which must be done with respect, but must be real criticism) that seperates shit from art.
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so much of what passes for art these days is degenerate shit.
The technical term you're looking for there is from German, "entartete Kunst".
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Exquisite (Score:2)
http://cleowho.tumblr.com/post... [tumblr.com]
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there's no way that that is fair use, regardless of transformative.
Transformative doesn't mean you don't need the originial copyright holder's permission. Only fair use does.
Re:stupid (Score:5, Interesting)
Keep in mind that to many artists the place you see an object is a big part of the work. Simply by converting the photos from an electronic format on Instagram into large canvas prints in a gallery he transformed the works. There are actually entire schools of art devoted to taking random shit, placing them in galleries, so everyone can stand around speculating about what you meant when you decided to display your bed [wikipedia.org]*. And if if the new photo counts as a transformation then it's a completely new work and the original owner's copyright does not apply. In other words he can almost certainly get as many Doctors of the Fine Arts as he wants to write impassioned essays defending his right to do this shit.
Always remember: the law is 100% logic, 0% common sense.
That said, I'm pretty skeptical that the Courts would buy it. The case he won he actually changed a guy's pictures to the point that you can instantly tell the Prince version from the Cariou original even when both of them are digital reproductions on your monitor.
*The bed in question sold for 150k GBP top a collector, who just sold it for $4,351,969 so clearly this bed is art and not pretentious BS from lazy people who mistake a tendency to over-analyze with intelligent commentary.
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Yeah, I saw one "artist" who took a radio, as is, and called it art. Well, it might be a
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Always remember: the law is 100% logic, 0% common sense.
I totally disagree. There are many, many places where common sense shows up in law, perhaps more than any other profession (esp. the sciences). You have something like jury nullification, or even just read any court decision. The judge will look to apply a common sense reading of the law to the actions. When laws are written and read down to the letter, what they are looking for is clarity and a lack of ambiguity, so we can say for sure those specific actions are what we intended to prohibit. Sure, law
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No I mean logic. There is a very rigorous framework everyone but the Supreme Court has to follow, and you have to be able to connect every decision you make to that framework. US Courts are not allowed to do common-sense solutions such as threaten to saw a baby in half [wikipedia.org] to see which person loves it more. They have to base their decision on rigorous logic.
They can include some elements of "reasonable man" judgement, but the circumstances that require Reasonable Man's judgment are pretty well-known, and it's v
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Sounds weak.
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Given that money can be considered speech, the fact she is reducing the price so much is, itself, transformative. No other alteration to the work was necessary: the price difference alone speaks volumes.
That is a good point......and it truly communicates more than the Richard Prince's 'transformation'
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TFA specifically mentioned that this would be unlikely to work. However, you could argue that the irony in the concept of 'copyrights all the way down' might be sufficiently transformative so as to enjoy copyright protection.
Thus, it would really be 'copyrights all the way down'. Or perhaps recursion.
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Yep, there are a few transformative angles you can take.
First thing to note, is that it is unlikely that Richard Prince would sue. I guess that for the price tag, each print is unique. Why would he print twice the same thing when it takes him all of 10 minutes to find a decent image, screenshot it, print it and sign it (apparently for the Instagram copies, his comment is the signature, he doesn't even bother to sign) ? There is no loss of sales for him, and he's able to find suckers for his "unique" prints.
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They didn't exactly duplicate his pieces, they did to his pieces exactly what he did to theirs: copied the piece exactly except for adding their own comment(s) at the bottom. That'd put him in a bind, he can't win against them without guaranteeing everyone whose work he appropriated a win against him. IMO Meyer's fear-mongering on that point.
There's another twist too. The only part Prince significantly changed is the comments on the images. But the comments and the copyrights on them aren't owned by the Ins
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1. Yes, you can infringe your own work. Easy example. Write code for your employer. Your employer owns that code. Move to next employer and write the same code. The new code infringes the copyright in the previous code.
This is NOT your work as it is done for an employer so you agreed to their terms. Therefore you didn't infringe on YOUR work because it wasn't YOURS to begin with.
2. The concept of whether something is transformative goes to whether or not it can be considered fair use. Fair use doesn't require that the work be transformative, but it helps.
3. Usually fair use looks at things like commentary, satire, etc. You don't see much fair use selling for $90k.
4. If the Suicide Girls are doing exactly the same thing (i.e. taking photos of a computer screen) they might be able to argue fair use. Goose and gander, right? But simply duplicating Prince's work would seem to fall short.
The problem is Prince has no original work. If he is copying so preexisting thing off a screen and converting the media that doesn't change the content only the media. What he is doing is no different than taking the colorized version of 'Its a wonderful life' and making it 3d, and then claiming its his because behe made it 3d.
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Then you may find the information at this link helpful: https://instagram.com/about/le... [instagram.com]
Interesting excerpts:
"By accessing or using the Instagram website, the Instagram service, or any applications (including mobile applications) made available by Instagram (together, the "Service"), however accessed, you agree to be bound by these terms of use ("Terms of Use"). The Service is owned or controlled by Instagram, LLC ("Instagram"). These Terms of Use affect your legal rights and obligations. If you do not agr
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You sound like a lawyer, so I want to give the benefit of the doubt here, but I don't understand where you get the idea that fair use is just immunity.
Copyright infringement is unlawful. Fair use is not an infringement of copyright. So if it's not infringement, how is it unlawful?
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You, use too many commas. It, is not necessary to put one, after every noun, or pronoun.
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Does this mean pirated movies are transformative if you add a border containing weird art? Can you re-sell Beatles music if you "transform" it by adding a track containing cowbell?