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by swhipple
3891 days ago
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Hmm, I wasn't considering labels that might be on the items -- that's a good point. If a derivative of the label were, for example, being used on another wine bottle without licensing, it would unambiguously be copyright infringement. However, a painting which includes the label in the described way, could be considered fair use, namely that it is transformative and does not diminish the market of the original work. Commercialization of the derivative work as well as other context may also affect the claim of fair use. Trademark also has a fair use defense in the US, which might be relevant here. I do use 'fair use' in the US sense; there are similar concepts in some other countries, but not always 1:1 with the concept to which I'm referring. |
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To be honest, I don't think the copyright is the most important part here, but rather trademark laws, as another user noted here https://news.ycombinator.com/item?id=10442882 since it'd be causing a disrupting confusion, IE making consumers believe they buy a product which they actually don't buy.
The problem with fair use is that it's ambigous. Only courts can declare fair use with authority; an artist claiming fair use for their work has no authority, in the sense that they can still get sued, and neither do their lawers hold defining authority about this aspect. This, effectively, creates a large legal gray zone. eevee is arguing from the perspective of a creator, and people seem to get a little worked up with elaborate, imaginary examples. The important part, though, is the idea behind the post, that being: Artists are subject to a lot of legal insecurity. Copyright is one of the most empowering and simulatanously most crippling insecurities. Remixes and DJ-sets on youtube and soundcloud, publishing street photography, creating fan art, as some examples. All of these are to a varying degree both legal and illegal, most importantly depending on your specific location. In my case, my country knows a case similar to fair use: if said bottle label was reproduced in a recognizable manner, and it was a major part of the work, it would be an infrigement. If it was a minor part (dubbed 'padding') of the art work, it's considered a sibling of US fair use. But only courts can decide either. And artists often aren't well-funded, hence avoid anything which might smell like a lawsuit, hence freedom of expression is hindered in a significant way, for no particular reason but lack of legal clarity. I'm just writing all this, because you seemed very emphatic in your view. But this is a really ambigious topic, which requires a lot of consideration and empathy on all sides. So I wanted to add a little perspective. /edit: not you, swhipple, but hn seemed very emphatic, while you, swhipple, seemed to recognize a need for clarity, so I wanted to add some perspective under your considerate opionion. Pardon my misaccredition. I didn't mean to sound rude or devalue your view as inconsiderate. Your "It isn't entirely binary. I support expanding fair use in ways that benefit the public while not hindering artists." made me chime in.