Comments on: Siebren Versteeg’s Infinite Touchscreens http://www.concurringopinions.com/archives/2008/10/siebren_verstee.html The Law, the Universe, and Everything Tue, 14 Feb 2012 05:18:12 +0000 hourly 1 http://wordpress.org/?v=3.2.1 By: Frank http://www.concurringopinions.com/archives/2008/10/siebren_verstee.html/comment-page-1#comment-46674 Frank Sun, 19 Oct 2008 17:16:27 +0000 http://www.solove.org/archives/2008/10/siebren-versteegs-infinite-touchscreens.html#comment-46674 I think that the graffiti spray may not merely be an aesthetic choice, but a legal necessity--it helps make the case that the images as displayed are transformed, and that militates in favor of a fair use finding. As for commerciality--that's also a factor in the fair use analysis, but has come to be less important over the past couple decades because it seems like just about everything can be deemed commercial--or at least (under the fourth factor) having a negative effect on the market for licenses for derivative works like the one in the case at bar. For very interesting reflections on this area of law, here is Matt Sag's piece: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1257086 I think Sag's argument works for pieces like Versteeg's, but I plan to eventually contest its application to general purpose search engines--more on policy than on doctrinal grounds. I think that the graffiti spray may not merely be an aesthetic choice, but a legal necessity–it helps make the case that the images as displayed are transformed, and that militates in favor of a fair use finding. As for commerciality–that’s also a factor in the fair use analysis, but has come to be less important over the past couple decades because it seems like just about everything can be deemed commercial–or at least (under the fourth factor) having a negative effect on the market for licenses for derivative works like the one in the case at bar.

For very interesting reflections on this area of law, here is Matt Sag’s piece:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1257086

I think Sag’s argument works for pieces like Versteeg’s, but I plan to eventually contest its application to general purpose search engines–more on policy than on doctrinal grounds.

]]> By: A.J. Sutter http://www.concurringopinions.com/archives/2008/10/siebren_verstee.html/comment-page-1#comment-46673 A.J. Sutter Sun, 19 Oct 2008 16:33:11 +0000 http://www.solove.org/archives/2008/10/siebren-versteegs-infinite-touchscreens.html#comment-46673 Some banal questions about scraping pictures off the web: isn't he making derivative works? How does he do the clearances, I wonder? Or is this a fair use? (In that regard, does it matter that the show is at a for-profit gallery rather than at a non-profit museum?) Some banal questions about scraping pictures off the web: isn’t he making derivative works? How does he do the clearances, I wonder? Or is this a fair use? (In that regard, does it matter that the show is at a for-profit gallery rather than at a non-profit museum?)

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