Re:Fair use isn’t much good if you can’t afford it
by alexqgb on Friday June 24, 2011 @05:06PM
(#2693875)
That's not what "degradation of the commercial value" means. Not paying a license fee in a case where an artist could conceivably demand one in the absence of Fair Use is not the same as actively undermining the market for the original image - which is what the law is actually concerned with.
This is why posting free copies of other people's movies online is considered damaging. Even if you don't make money yourself, you create an option from a potential customer who would pay to avoid doing so. In this case, the pixelated version is on par with the tracks themselves - legitimate variations that are conspicuously different.
Indeed, the presence and proliferation of noticeably derivative works like this tend to increase the iconic and commercial value of the source by creating the kind of halo effect people associate with "the original." It's entirely reasonable to assume that "Kind of Bloop" actually enhances the commercial value of "Kind of Blue", and everything associated with it.
This is incorrect. 17 USC 107 spells out four criteria on which fair use claims are to be evaluated, the third of which is "the amount and substantiality of the portion used in relation to the copyrighted work as a whole".
Now it is true that using the entire work doesn't automatically preclude the success of a fair use claim, but it's a much steeper hill to climb and will rest heavily on the other factors being in your favour, which wasn't the case with Kind of Bloop (the significance of the transformation seems to be up for debate, the work was very definitely commercial, some apparent degradation of the commercial value of the photo-as-album-art since it was being used here as album art without payment).