[johndoughy]

Not according to the "out-of-court settlement" link:

> And it’s worth noting that trying to license the image would have been moot. When asked how much he would’ve charged for a license, Maisel told his lawyer that he would never have granted a license for the pixel art.

[unfocussed_mike]

As is his right as an artist, I suppose.

I am fond of Andy Baio's work, but looked at from the other side, Jay Maisel is protecting his work, and he's entitled to do so.

They should have asked, I think; they might have got a different response, whatever the settlement says. Maisel is an intellectually curious guy, but they pissed him off by ripping off his work.

It always troubled me that there was so much vitriol for Maisel from the exact same community of people who rightly insist that free software licences are enforceable and that non-compliance should be shamed.

(See for example, the passive-aggressive and decidedly non-neutral Wikipedia page for Maisel, which goes out of its way to dwarf the settlement sum with discussions of Maisel's wealth, which was built on hard work and protecting the income-generating rights earned from his work, and then a measure of good timing like almost everyone else with earned wealth)

[leephillips]

The animus against Maisel was whipped up by John Gruber. It reached the point of people vandalizing Maisel’s house.

https://lee-phillips.org/music/whoIsTheDick/

[Marazan]

It was a pretty despicable episode by Gruber who, in my opinion, actively mis-represented the situation to get a hit of outrage.

[Marazan]

I feed on your tears Gruber-stans.

[catern]

>It always troubled me that there was so much vitriol for Maisel from the exact same community of people who rightly insist that free software licences are enforceable and that non-compliance should be shamed.

That community is generally opposed to copyright and intellectual property altogether. Copyleft is just a hack to create a space where it doesn't exist. If I could "infringe" on others without being punished, there would be no need for copyleft enforcement. That's the idea, anyway.

[unfocussed_mike]

Maybe, but they understand the difference between their principles/licences and the public domain. So does Jay Maisel -- his income depended on it.

And at any rate there is almost no place in the copyleft world for photographers like Maisel to earn a living at all, so he'd be within his rights to reject it entirely.

[fenomas]

> from the exact same community of people who rightly insist that free software licences are enforceable and that non-compliance should be shamed

This seems kind of disingenuous. People were mad that Maisel threatened a lawsuit in a case where there's a strong, obvious argument for fair use. If something directly comparable happened with software licenses I think most of the HN community would react the same way they have here.

[unfocussed_mike]

> People were mad that Maisel threatened a lawsuit in a case where there's a strong, obvious argument for fair use.

A legal argument, yes. Which can be tested in a court; it's his right to do so, isn't it?

He's the rights holder of a famous image and they used it commercially without permission. Dealing with it legally is not inappropriate, IMO.

Like I say, I think if they'd asked him nicely before just either assuming they had the right, or alternately assuming he'd be OK with it, they might have had a different outcome. They did not.

[fenomas]

> He's the rights holder of a famous image and they used it

Begging the question - they made their own image, and then Maisel claimed it infringed his. You can agree with that claim if you like, but if someone made a directly comparable claim about a software license I think most of HN would rightly find it absurd.

[jakelazaroff]

It’s not begging the question. The pixel art image is unambiguously at least a derivative work of the photograph. The issue is whether it was transformative enough to count as “fair use”. I personally think the lawsuit was kinda dickish, but it was definitely Maisel’s right to do so.

[fenomas]

They didn't put a copy of Maisel's photo on their CD - they asked a pixel artist to draw it, and put that on their CD. Whether doing that qualifies as a commercial use of Maisel's photo is precisely the point under contention, so "they used [his image] commercially" is what I meant begs the question.

[unfocussed_mike]

It's not begging the question, because it was _very_ recognisably a derived work of his image.

> they made their own image, and then Maisel claimed it infringed his

This is obtuse.

The question at issue was whether it was *fair* use -- to make a fair use claim you are stipulating it is a *use*. I am not convinced either way.