A few weeks ago there was news that Jay Maisel had successfully defended his copyright against someone claiming “transformation” by turning his original Miles Davis cover photograph into pixel art. It was another victory for photographers in the fight over “fair use,” an idea that is very important but also extensively misused by people who don’t understand it. Millionaire internet entrepreneur Andy Baio and stockbroker Andrew Peterson (AKA Thomas Hawk), of San Francisco investment company Stone & Youngberg, are a couple of those people. Andy made a chiptune tribute to Miles Davis’ Kind of Blue called Kind of Bloop and he used Jay’s cover image to create his own to go with it. Maisel sued and Baio settled instead of going to court to “cut his losses.” He wrote a post on his popular blog waxy.org entitled Kind Of Screwed, where he tries to explain how his cover art would qualify for fair use.
I’m going to pick apart Andy’s argument, but first I need to mention that the post got the internet all worked up over copyright and Jay Maisel’s name has been drug through the mud by people like Andrew Peterson (AKA Thomas Hawk) “Photographer Jay Maisel Extorts (Opinion) $32,500 Out of Andy Baio” and Hyperallergic “Breaking: Millionaire Extorts $$$ From Artist, Street Artists Strike Back.” The Russian photos blog has an excellent wrap up of the disgusting antics “The Photographer, The Entrepreneur, The Stockbroker And Their Rent-A-Mob” followed by Doug Menuez “SLANDER, STUPIDITY & THE MINDLESS MOB ATTACKS ON JAY MAISEL”
By far the best and most recent explanation of how fair use is interpreted by the courts can be found in the filing by Judge Deborah A. Batts in Patrick Cariou’s successful lawsuit against Richard Prince that I wrote about (here).
The 4 factors that make up fair use are:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
i. Transformative Use
iii. Bad Faith
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
Note: Only a court can determine fair use.
Reading what Andy Baio has to say about his cover art, he claims the transformation is the most important part of what he’s done, but fails to recognize that “the purpose and character of the use” includes transformation but also commerciality and bad faith. The cover was commercial so that rules out the obvious nonprofit educational use of copyrighted work. Then there’s the bad faith element which asks if they tried to obtain permission or a license in the first place. Evidently there was some bad faith involved, because Andy called Jay’s office but did not ask to use or license the image. Finally, the courts say a transformation must comment on the original and not simply use it as source material. Additionally, making a derivative work is not the same as transforming, so simply recasting it is not enough. So how did he transform the image? He claims that by using NES-style pixel art to capture the artistic essence of the original album cover with “a fraction of the resolution and color depth of an analog photograph” he transformed it. Here’s how Judge Batts would respond “If an infringement of copyrightable expression could be justified as fair use solely on the basis of the infringer’s claim to a higher or different artistic use . . . there would be no practicable boundary to the fair use defense.” Rogers v. Koons, 960 F.2d at 310.
The final 3 factors are where Andy’s argument goes completely off the tracks. He says that Jay’s image “is creative, it’s also primarily documentary in nature” to which Judge Batts would say “it has been a matter of settled law for well over one hundred years that creative photographs are worthy of copyright protection even when they depict real people and natural environments. He used the entire image. And, finally he says that “It’s obvious the illustration isn’t a market substitute for the original” but Judge Batts would say “the Second Circuit has previously emphasized, the ‘potential market’ for the copyrighted work and its derivatives must be examined, even if the ‘author has disavowed any intention to publish them during his lifetime,’ given that an author ‘has the right to change his mind’ and is ‘entitled to protect his opportunity to sell his [works].'”
Yes, Andy you would have been screwed in court as well and given photographers another case to cite when protecting their copyright. The crazy thing about the whole debacle is that he licensed all the cover songs from Miles Davis’s publisher but didn’t do the same with the image. He didn’t think he would have any issues copying the images. That’s because you don’t mess with the music industry when it comes to copyright, now maybe the same will be said to photographers thanks to Jay Maisel.
UPDATE: Andy Baio and Jeremy Nicholl (Russian Photos Blog) weigh in on the comments of a TOP post (here).
The part that I don’t like is when photographers are stagnant (not shooting new work) and then to boot, their way of trying to get things going again is to ask us to set up a bunch of meetings for them. It puts me in an awkward position to set up meetings for someone who is going to show the same work that they have showed for the last year or more. On the other side, when they are shooting a lot of new stuff, the word gets out and people want to meet with them – they want to see the new work – and it isn’t a used car sales job to get them in for meetings. There really has to be a draw for the Art Buyer/Creative/Photo Editor and not just like… hey can I land this pile in your office?
— Agent, Deborah Schwartz of DSReps.com
The main difficulty in this field lies in the fact of imagining the best coverage visually of an event and to know the photographers well enough to be sure about sending someone capable of bringing back perfect images. This requires a creative part as it is essential to suprise the reader. It is also important to work very quickly and to be able to rapidly make good decisions.
–Kathy Ryan, NYTimes Magazine
I know photographers who refuse to act on any ideas other than their own, and while I can appreciate this attitude on some fuzzy, idealistic, purist kind of level, I honestly can’t say I respect it very much. There are few if any original ideas, but there are lots of good ones. Listen to suggestions from your clients, your assistants, and yes even your subjects. You’ll be a better shooter, and I daresay, a better person for it.
via planet shapton.
Art Director: Joseph Hutchinson
Creative Director: Jodi Peckman
Deputy Photo Editor: Deborah Dragon
Designer: Matt Cooley
Photographer: Danny Clinch
Stephen Quinn, publishing director of Vogue, said: “Where once it were imagined that digital might kill print, it has instead heightened the level of engagement the reader has with her magazine of choice.”
via Media Week.
So far, Twitter has plugged the hole, in the sense that it has created an opportunity for me to talk to people on a daily basis while I’m at work. What constitutes me being at work is vast swathes of time during the week, where I am sat alone at a computer for hours and hours and hours. The furthest my intellect gets stretched during these periods is when I get to do ‘Ctrl+C’ followed by ‘Ctrl+V’.
I’m debuting a new column on APE called “The Daily Edit.” Heidi Volpe will be featuring a daily look at great editorial content: illustrations, layouts and of course photography. I will be taking a break from posting this week and next while we get this great new column off the ground.