Jay Maisel Defends His Copyright And Is Attacked For It Online

- - copyright

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
ii. Commerciality
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).

What is an aspect of your job that you don’t enjoy?

- - Blog News

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

via christarenee.

The Daily Edit – Tuesday

- - The Daily Edit


Design Director: Dean Seabring

Art Director: Valerie Seabring

Illustrator: Kevin Sprouls

Heidi: Is your reference material one single photograph, even for groups of people?

Kevin: Sometimes yes, sometimes no. It will often happen that I’ll receive a group shot to which I must add a figure or two. These will usually get placed on either end, facing into the group, if possible. The tricky part here is to get the add-ons scaled correctly to fit into the grouping properly— this is accomplished by careful scrutiny.

About how long did this particular illustration take?

5 days.

How big is your original work? Do you work keeping in mind that these will be scaled down or are you working at 100%?

These typically get reproduced at 35-40% of original size. The drawing displayed here was probably 17.5″ wide in the original.

The Daily Edit – Monday

- - The Daily Edit


Art Director: Jason Lancaster

Director of Photography: Catriona Ni Aolain

Photographer: Aaron Fallon

Heidi: How many selects did you send in?

Aaron: From the main setup (the one pictured) I sent in about 50 images. I divided that 50 up into first and second selects. The second setup (not pictured) I had 25 total selects.

How much time did get to do the shoot?

I was told I would have Matt for 10-15 minutes.  In the end, I wound up having Matt for 25 minutes.

Was this your first shoot for ESPN? How did they find out about you? Email, promo, or word of mouth?

This was my second job for ESPN. The first was at the beginning of the year, I did a portrait for the Body Shots section of the magazine. I wish I knew how they found me. I’ve been sending promos, both print and e promos for the last year. Maybe that, maybe word of mouth…

Was it hard to photograph? meaning he was a little stiff in the beginning? Do you do any warm up shots to try and open him up or was he easy?

You’re right, the first images, often times, can be a bit stiff. But given that I was only supposed to have him for 15 minutes, the idea of a warm up shot isn’t something that consciously crossed my mind. However, on this shoot, I did a bit of warm up anyways without really thinking about it. I had asked Matt to put on his batting gloves and as he was putting the gloves on— not even in the exact area where we had positioned the lights—I grabbed the camera and began shooting. Sunlight was mixing in with my lights, the frame was a bit different than where I had tested, yet those first shots are some of my favorites from this shoot. It was almost reportage-like, with a full on lighting setup. I began giving him bits of direction and that’s how we started. He was really comfortable in front of the camera, so that made things flow pretty smoothly.

Some Logistics

I like to visualize and plan out an approach to my shoots ahead of time, whenever possible. But I’ve learned not to get too attached to those ideas in my head — as often times things don’t work out as planned, or the shoot itself creates better opportunities than what I had visualized.

On this shoot, though everything was seemingly in place beforehand (great direction from ESPN, I had spoken with Matt’s people, and had spoken with the stadium where we were shooting) — one thing that was unexpected was that the grounds crew at the stadium would not let us be on the field. I had asked Media Relations at the stadium about being on the field ahead of time and was told it would be fine, but just to respect the requests of the grounds crew. Apparently the grounds crew had a different take. They told us that we couldn’t be on the grass until we were shooting with talent (not even touching the grass with our feet or equipment), which made it about impossible to set up a shot on the field ahead of time. It didn’t make sense to spend time, effort, or risk any animosity with the grounds crew trying to override them, so instead we worked within their framework and stayed on the warning track area. And that worked out great as the main setup was at the dugout and when we got to the second setup the home team was already on the field taking batting practice.

What Is The Best Quality Of A Photo Editor?

- - Blog News

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

via La Lettre de la Photographie.

There Are Few If Any Original Ideas

- - Blog News

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.

The Daily Edit – Tuesday

- - The Daily Edit

GQ Magazine

Creative Director: Fred Woodward

Director of Photography: Dora Somosi

Photographer: Ture Lillegraven

Heidi: Was it hard to control the roosters? Did your rent those?

Ture: As for the roosters..it was tricky to control them. I rented them and they came with two animal wranglers. They did their best to keep them in a controlled area for me…but they still moved around and added an element of spontaneity which I like. While shooting in his actual truck, I would place them in certain places…then they would roam from there. For me this really makes things interesting and allows the subject to react to their actions and my direction…and catch those moments that happen between the moments. It was a blast.

One Hundred & Forty Characters

- - Blog News

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’.

via Chris Floyd: Clean Living Under Difficult Circumstances..

The Daily Edit: Tuesday

- - The Daily Edit

(click image to make bigger)

Fortune Magazine

Creative Director: John Korpics

Photography Director: Mia Diehl

Photographer: Rodney Smith

Prop Stylist: Renate Lindlar

Heidi: How did you create the set? Did you have that wall paper specially made?

Renate: The wall was hand made, every single $100 bill (fake theater money) was hand pasted on four foam 4 x 8 boards along with the floor boards. It took an friend who is an experienced  fashion designer and knows how to  work precisely and patiently almost 2 days.

How did you construct the dress and affix the money to get such a perfect graceful hemline?

I made the dress by covering an existing bustier with bills, mostly by hand and for the skirt part I constructed one big piece of cotton fabric  like an apron. We sewed the fake bills on ribbons  and sewed the ribbons on the apron that we then just tied over a big crinoline to give it the luscious fullness and fall.

New Feature: The Daily Edit

- - Uncategorized

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.

How the stock industry ate itself

- - Blog News

Despite proof to the contrary, some full-time professionals still believe they are entitled to be primary image providers. It is time to stop the blame game and re-focus on the challenge – how to earn a living by making pictures. Photographers can no longer afford to hang out a shingle with the moniker “good photography at a reasonable price”. The differentiators for success are as follows: highly distinctive imagery reflecting a clear and compelling aesthetic vision, marketing savvy, sharp business skills, adaptability and persistence. Today’s professional photographer must deliver nothing less.

via British Journal of Photography.