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).
60 Comments
I still find all of this fascinating .. .to me it was clear from the get go that Mr. Maisel was legally within his rights .. however … unless there is a piece of the puzzle I am missing .. and there probably is .. I just find Mr. Maisel’s response a disproportionate use of legal force .. to me he used a nuclear response when a phone call might have worked as easily … I think that is why this whole thing went viral … it wasn’t about Mr. Maisel’s rights … it was about his response … and who he was .. and where he was (NY), etc. – a great overview … thanks for sharing …
Here are a few pieces:
1.) Baio’s project was on Kickstarter as early as Aug/Sept 2009, but the time line in is blog starts with a date of February of 2010.
2.) Read Baio’s own words, July 9, 2011:
“Ben: Upon receiving their original demand letter, I immediately pulled all the artwork offline, apologized for the confusion, and explained the limited scope of the project and the fact that only 300 albums were produced. Their response was that “this apology does not unring the bell of your infringement,” and they offered a $75,000 settlement and reiterated their intent to file suit within ten days, so I was forced to hire a lawyer to handle the negotiations.”
http://theonlinephotographer.typepad.com/the_online_photographer/2011/07/when-the-internet-turns-vicious.html
A.) Confusion.
B.) Apology.
C.) Immediately.
D.) All art work offline.
E.) 300 Albums Produced.
Doesn’t say ANYTHING about him being honest in 2010 about using it to promote Kickstarter? How about on-line promo/album downloads for 7-8 months? Nope. What about BEFORE he used it, or in Aug/Sept. 2009, or in February of 2010, not June 23, 2011, not even July 9, 2011.
3.) Read Kickstarters ©/IP terms for their users/customers:
http://www.kickstarter.com/terms-of-use?ref=footer
4.) Ask yourself, once Kickstarter helps (and understandably charges) artists and people with creative original ideas for their services, what happens once the work is “out there” and Andy Baio wants to use it with out asking for permission? What if he wants to SELL their work with out asking for permission? What if it is registered? Does he ask?
5.) Even worse, what if Baio wants to PROMOTE KICKSTARTER using that work?
Sure would be nice if Kickstarter made a public statement about their former CTO’s behavior – it does not appear to be in line with their own policies. Although Kicstarter’s June 23, 2011 blog about Andy Baio – you can read that and judge for yourself too…
Best,
Jamie
And so the can of worms will be opened here too.
Thanks for sharing! Jay and thanks for defending yours and all of our art. And you Andy and Andrew…..pack sand!
A much more definitive examination of the Fair Use argument and how it would (likely) fail was written the other day by Terry Hart, Esq. Mr. Hart is an attorney who specializes in copyright and is brilliant.
http://www.copyhype.com/2011/07/kind-of-bamboozled-why-kind-of-bloop-is-not-a-fair-use/
Thanks to Jay Maisel for taking a stand while others over the years have not had the courage too.
Jay Maisel’s photo expresses the real emotion of the music. Way to GO ! I am not impressed with these ‘uncreative’ spin offs – great posts – Thanks for stepping up to the plate for the integrity of our work / industry –
@Phil I found that mr. Baio action was inappropriate. A simple phone call asking for permission might have worked and none of this would have happened.
@Phil. I’m assuming Maisel went after Baio because the millionaire could handle the costs of litigation. The point I think Maisel was making, as APE points out, is that there would’ve been one more legal ruling in the books defending our rights as creatives.
I think in a big picture sense, it’s unfortunate there was no ruling. So, the fact that Baio settled makes Maisel look like a money grubber.
But lets look at in a different way… if you or anyone on this list has like a 95% guarantee to a hefty settlement from someone who had the doe, why wouldn’t you go after it? I would. I could use some new gear. Ha! And it’s not like Baio didn’t know any better. Millionaires have lawyers. So, the resources are there. If you don’t wanna pay a licensing fee, you’ll have to pay the settlement.
I doubt Maisel would’ve gone after someone just barely scraping by. There’s no blood in squeezed coal, so why not try for a diamond?
Overuse of legal force or not, I think these kinds of rulings need to be publicized and are crucial in educating the public as to the proper method of using another artist’s work. As more and more generations emerge brought up on the notion that anything out their on the web is theirs for the taking, the whole issue threatens to become more and more murkier. This ruling strengthens all artists’ rights, and more importantly, their ability to defend those rights…
Anyone who knows Jay and his commitment to photography as an art, a business and a whole way of life, knows what the truth is here. Thomas Hawk in his blog (see link above) pushes way beyond the truth envelope when he describes Jay’s building on The Bowery as a ‘mansion’. If you’ve ever been there you know it’s still a work in progress. Hawk is simply fomenting negativity with as much irrelevance has he can muster in order to create the illusion that some great injustice was done by Maisel. Au contraire mon frere! Jay has come to our rescue again.
It’s too bad Jay Maisel had to suffer at the hands of the blogosphere mob, but at least the right copyright message got out. I don’t know when the message will be loud enough for people to stop all the infringement, but at least it seems we’re heading in the right direction.
On the other hand, since Baio did license the music, it does seem like he figured a settlement would be cheaper than a license for the photo, which is disturbing. I think people inherently value the copyright to things they perceive as hard to do (create great jazz, paint a masterpiece), and devalue things they think they can do (press a shutter). But thankfully, that’s not the legal test (or even reality).
“I think people inherently value the copyright to things they perceive as hard to do (create great jazz, paint a masterpiece), and devalue things they think they can do (press a shutter).”
I think you’ve hit the nail on the head there. It was arrogant for him to think he could just take the photograph. I can understand why he wanted it for his tribute record – that’s obvious. But we all want many things in life don’t we? I don’t, let’s say, smash the window at Macy’s and grab whatever I like.
@Phil … are you aware that phones dial both ways?
Was it Jay going nuclear when Andy made sure to take care of all the other “artists” involved except Maisel?
I still say there two factors at play here (other than the deception that Baio is a starving pauper artisan) … 1) I don’t think Baio has been as open and has shared ALL the details pertaining to this case … I seriously believe there is more at play behind the scenes than we are privy to … 2) If Baio ha picked up the phone at the beginning of this project and included Maisel from the first step … there very likely would have never been an issue … or the need to write a check to avoid litigation …
Maisel’s photograph of Miles Davis is indefinitely iconic. I think Baio would agree otherwise he probably would have chosen another image.
Huge thanks to Jay Maisel for his decades of creating iconic images and his willingness to defend his copyright – which in turn defends all of our copyrights.
Very much appreciate APE for staying with this very important story.
Great analysis and write up.
I was wondering why it took so long for this to get out more. Thanks for posting. Unfortunately the internet “Fair Use” fanatics won’t likely be convinced despite the obvious wrong-doing.
Or, if Andy Baio had asked to negotiate a license or asked for gratis permission, Jay Maisel might easily have said NO.
It is the right of the copyright owner to deny use that is undesirable, corrupts the work, dilutes the market, or simply because the rights owner does not wish the work used in a certain way.
Exclusive rights includes the right to exclude.
Jay Maisel was denied the right to say no. He was denied the right to control his work as he so chooses.
Baio might have suspected he would be denied permission because he did call Maisel’s studio fishing around about the image. Baio might have decided to proceed with the unauthorized use the way he wanted and get it out there – believing it couldn’t be undone – and thinking that might render Maisel’s potential “no” moot.
Maybe Baio thought he would fall back, if necessary, on the seductive incitement-to-infringe preached by Lessig and others that “it is easier to ask forgiveness than permission.”
It is disturbing to see how many Baio supporters think the proper response from Maisel after the infringement was discovered should have been to grant retroactive permission, i.e. forgiveness.
Maisel was correct; the other guy was a thief. His claim of fair use is ludicrous, his behavior is disgusting. If I were Maisel I would also have made part of the settlement an agreement that the thief was not to talk about the case. This would be a logical thing to demand, knowing that thieves, when caught, routinely badmouth the victim.
The most disturbing thing about this whole ordeal is how the same guys that went crazy because Richard Prince made his series of work, were the first to attack Maisel when he did the same thing that Mr. Cariou did.
Pick a side people. I will always side with the guy making new works, but you don’t get to decide on a case by case basis.
Good! Maisel should tear this guy a new one. This is a pathetic attempt to try and manipulate someone else’s work. Baio needs to get off Flickr and Deviantart and join the real world.
@Phil … I’m replying mostly as a photographer but also as one who worked in law offices for 14 years, too. While it’s great to think we should all be able to work things out, the proper remedy for copyright infringement is legal action – the copyright laws (evolving though they may be) are clear (if very long-winded). The reason more artists don’t take legal action against those who borrow, change, or rip off their work is because there are usually no *provable* monetary damages and/or it would cost far more in legal fees to recover them – that’s the part about legal action being the remedy. Maisel has the clout of being a big name, which helps. Bravo to him. (And yes, I wish we could all just get along, but…. there you go.)
Note that link to the Thomas Hawk “article” now returns an Error 404. Was an interesting, if stomach turning, read.
http://webcache.googleusercontent.com/search?q=cache:EsZ9IArAsSsJ:thomashawk.com/2011/06/photographer-jay-maisel-extorts-opinion-32500-out-of-andy-baio.html+http://thomashawk.com/2011/06/photographer-jay-maisel-extorts-opinion-32500-out-of-andy-baio.html&cd=1&hl=en&ct=clnk&gl=us&client=firefox-a&source=www.google.com
Perhaps Jay’s response was a little heavy handed but we don’t know how much of this he deals with on a regular basis. How strongly to each of us put into defending our intellectual property? It’s easy to criticize online when it’s done so in such an anonymous manner or under a user name other than your real name. I applaud Jay for defending his work and trust that he chose his actions carefully. Let’s hope that the discussion of this case with trickle down to those who casually steal our images for their unauthorized use. Remember that woman that downloaded the MP3 files and is paying dearly for it?
The thief bought a license for the music because he figured he couldn’t get away with just stealing it; figured he’d be nuked for stealing it.
The thief stole the image because he had the attitude that photographers don’t protect their rights or do anything against thieves. If there were more people like Maisel, thieves might think twice.
Also note that the thief is a wealthy guy. He could have easily bought a license for the photo; he preferred to be a sleazeball scumbag pirate.
Good for Jay for fighting his corner, and for the corner of every other photographer and artist in the world. The (assumed) settlement seemed fair, and we all should thank him for his actions.
Gerry
@Phil & Ridzki – Do we know for a fact Maisel didn’t contact Baio to ask that this be resolved before going to court?
@APE:
There are two separate issues here: the legality and how Meisel approached a perceived infringement. The issues of relative wealth of the two parties is irrelevant . What IS important is the legal footing of the two parties.
The first issue, the legality, isn’t as cut and dried as you make it out to be and frankly, your understanding of the legal standards of Fair Use is overly narrow. The Cariou case is very different – Richard Prince was claiming authorship without substantially transforming the work and profiting heavily while doing so in the same market, the fine art/gallery market, within which Cariou makes income from his work. This (so the court found) could cause a dilution of Cariou’s work’s marketability.
The problem with Baio’s argument was that (in my opinion) he tried to use the “transformation” side of things as justification of Fair Use when he really should have made the case (correctly) that it’s a work of parody, and therefore allowable under Fair Use. Read up on Campbell v. Acuff-Rose Music, Inc. (AKA: 2 Live Crew). The Supreme Court ruled that a parody – a work which “at least in part, comments on that author’s works” – is protected under Fair Use, even after Roy Orbison’s publishing company denied the license – if it’s a parody, you don’t need to get permission, even when it’s already been denied. This is how the porn industry gets away with “parodies” like “This Ain’t Avatar” (http://blogs.dallasobserver.com/unfairpark/2010/10/this_aint_avatar_its_another_r.php) and even pursues its own copyright violation claims against infringers.
Sorry. No way to appeal it beyond the Supreme Court. They have the final word.
This would have made a lot more sense for Baio – he’s not claiming explicit authorship of the image (at least not in the same way Prince did) and parody would have been an especially strong case in the context of the album, a blip-tone version of Kind of Blue. I know when I first saw the picture, a cracked a smile – it’s *funny*.
The second issue, the way in which Meisel handled what he perceived as infringement upon his rights, is a whole other can o’ worms. I’ve said before that many businesses whose bread and butter (ie: stock agencies, celebrity syndication houses, etc.) will usually first approach an infringer and notify them that what they’re doing is infringement and offer them the chance to pay up, nice and legal-like. About 80% of the time, the infringer wasn’t even aware that what they were doing was illegal (as in Baio’s case – he states that it didn’t occur to him) and pay the license fee. Nice. Clean. No need to bring out the attack dogs.
Jay Meisel, on the other hand, immediately went into attack mode and sent in the legal team to crush Baio – he stated that he *settled* – which is not an admission of guilt and does not serve as legal precedent in further cases. He said it was the cheapest option to settle, rather than go to court over the matter.
When photographers aggressively pursue small-scale parodies of their work, it only hurts the photographic community as a whole – see the whole Manny Garica / Shepard Fairey / AP debacle – the AP never produced a contract showing transfer of copyright, and therefore did not demonstrate they had the right to sue Fairey. What they did have was a huge legal budget – larger than Fairey and also larger than Manny Garcia, the de facto copyright holder.
Unfortunately, this is often the case in this country – whoever has the biggest legal budget wins.
I don’t think anyone would disagree that my opinion is tainted by my interest in the photography industry, relationships with photographers and lack of a law degree.
I disagree about the market in which you work having any effect on the transformation. This is why you need to license the right to make a movie out of a book. The copyright holders are the only people who can make derivatives of the work not matter what market.
I agree with you on the parody. That’s actually an awesome defense for him. Unfortunately I suspect emails between himself and the designer might tell a different story and ruin any parody or commentary defense in the way that Prince said he doesn’t consider the author or subject when appropriating works.
I suspect Jay saw the cover as an abomination as one of the stories posted said he would never license such a use and so he went full throttle on the guy.
Everyone thinks the music industry RIAA are a bunch of dicks too so I guess someone has to be one to let people know they need to consider permission or a license first.
I also have a strong interest in the photo industry and I’m not a lawyer, but I also think there needs to be more moderation and understanding on the part of photographers in asserting their rights – if asserted too aggressively, it damages all photographers and isn’t taking into account how property rights have changed with technology.
I wasn’t making the case that the context affects the transformation, but context is important insofar as pursuing actual damages – I would assume a photographer as litigious as Meisel seems to be has *all* his works registered (which is obviously the case since here since he was pursuing statutory damages). Lots of photographers out there, so it is relevant in other cases. The Cariou example is a good one here since the damage to the marketability of his work was central to his case.
I won’t speculate what went on between Andy and the designer – and taking the 2 Live Crew example, it wouldn’t necessarily have an effect either way (I’m sure 2 Live Crew wasn’t very eloquent in their dialogue about appropriating Pretty Woman) – the important thing is the work itself and whether or not it is a parody, not the way in which it was created. The definition of parody is simply that the derivative work makes commentary on the primary work and that is obviously the case here.
I think what’s more important on this point is that it’s all moot because legality wasn’t the determining factor – Andy’s legal budget was. Unfortunately, this really isn’t a very interesting legal case study because it never went to court – if it had, it would have been more interesting.
And, to use your example, I (and many others) do personally think the RIAA is as much a bunch of dicks (and I’m sure there are many others of the same mind), just as people seem to think Meisel is. On many facets it’s an apt analogy – they have a huge war chest for their lawyers, a lobbying organization, and are in denial about the changes in technology affecting their industry. There’s a reason why the more forward-thinking, innovative bands are the ones making money. They are clinging to an outdated business model and can’t seem to wrap their heads around the fact that technology has changed their business. It’s not surprising that it took people from the tech industry to save the music retail industry.
It’s the same with photography – I’m not saying there *shouldn’t* be copyright protection, but just as suing an individual for $675,000 for 30 pirated songs was excessive, it’s also excessive to strong-arm $30K from someone for a project which is neither a big money maker, nor is terribly damaging to Meisel’s income. The same people cheering Meisel for going “full throttle” on Andy would probably be horrified by other forms of excessive punishment ($2000 and public service for chewing gum in Singapore is a good example, as is having your hands chopped off for stealing or being stoned to death for adultery). The penalty needs to fit the crime. As for the people saying Andy is just doing it to get a lot of publicity for $30K, he wouldn’t have gotten any publicity out of it if Meisel had pursued it in a way which fit the infringement. He gave the mob the gasoline for their torches.
And Jay obviously didn’t like the use or he wouldn’t have come out guns-a-blazin’, but that was also the case with 2 Live Crew’s supreme court case. I’m sure Oribson was doing backflips in his grave and now the “old school” music industry has a legal precedent instead of a steady source of revenue.
Check this out. In the comments of this blog written by an IP lawyer the question of parody comes up and is answered.
http://www.copyhype.com/2011/07/kind-of-bamboozled-why-kind-of-bloop-is-not-a-fair-use/#comments
This is a much more complicated question, and one I understand if you don’t want to get into, but what are some provisions for a work to be considered parody? A more pointed question, perhaps, is, Could artwork derived from other album artwork ever be considered a parody protected under fair use? Or does it have to be presented in a different context for it to be considered a parody? For instance (and this is unspeakably lame, so forgive me), but could you release an album by a band, Pig Floyd, title Pork Side of the Moon featuring a cover with a triangular canned ham in place of Dark Side of the Moon’s prism?
To be protected by fair use, a parody has to criticize or comment on the original work; if the target of the criticism or commentary is something else, or society in general, such a parody is not protected by fair use.
More importantly, the fact that a new work parodies or comments on an original work is not the only question — the use still has to be analyzed under the remaining fair use factors. Parody is sort of a unique case when it comes to the “amount and substantiality of the portion used” factor since it must necessarily use a substantial portion of the original to “conjure up” the original so that people recognize the connection. But that isn’t necessarily a license for the parodist to use as much of the original as he wants. “Once enough has been taken to assure identification, how much more is reasonable will depend, say, on the extent to which the song’s overriding purpose and character is to parody the original or, in contrast, the likelihood that the parody may serve as a market substitute for the original.”
I think it’s important, if you’re talking about a parody album, to separate the parody of the music from the cover art. If one is fair use, that doesn’t necessarily imply the other is. For example, Baio might conceivably show a transformative purpose for the music on this album: recontextualizing “highly improvisational, warm” music using “cold mechanical tones.” In this case, the other factors doom a finding of fair use even with this transformative purpose because of the existence of a compulsory license for cover versions of songs — there’s a ready derivative market for licensing cover versions of songs, and there’s no possibility of the copyright holder refusing to license a cover version (because the licenses are compulsory).
But when you turn to the album art, any transformative purpose you could argue for the music evaporates. The photo couldn’t be considered “highly improvisational.” Indeed, Baio himself says his purpose was to “capture the artistic essence of the original” — which sounds a lot like, as the Supreme Court said, “avoid[ing] the drudgery in working up something fresh.
Actually, I feel your quote misrepresent’s Baio’s statement – he didn’t say that his purpose was to capture the essence. He presents it as a question: “can NES-style pixel art capture the artistic essence of the original album cover, with a fraction of the resolution and color depth of an analog photograph?”
Seems to me he’s challenging the notion that the “artistic essence” conveyed through jazz improv is inherent to the way in which it’s created – something assumed of most live albums… but that’s the thing about art – it’s subjective. Case in point: I broke a smile when I first saw Kind of Bloop. I’ve never broken a smile at Kind of Blue. To me, that betrays a layer of commentary – much in the same way Vik Muniz’ work frequently cracks me up. It adds a layer of information (in this case, by taking away information and changing the image from continuous tone to pixels) not existent in the original image, AKA “transformation”.
Case in point:
http://www.vikmuniz.net/timeline/2002/series/color/image/1.jpg
Disclaimer to Jay Meisel and his legal team: the above comment represents my opinion only and should not be taken as a representation of fact in any matter pertaining to Jay Meisel, the proceedings between Meisel and Andy Baio, nor is it legal advice.
Hi Dude,
I posted this for Phil above – I believe it speaks to your perception of who approached who, when, what explanations were given (or omitted), and who commercially benefited from the use of the image, how, how much, and for how long.
If you have time to read it, please reconsider your statement that:
“I’ve said before that many businesses whose bread and butter (ie: stock agencies, celebrity syndication houses, etc.) will usually first approach an infringer and notify them that what they’re doing is infringement and offer them the chance to pay up, nice and legal-like. About 80% of the time, the infringer wasn’t even aware that what they were doing was illegal (as in Baio’s case – he states that it didn’t occur to him) and pay the license fee. Nice. Clean. No need to bring out the attack dogs.
Jay Meisel, on the other hand, immediately went into attack mode and sent in the legal team to crush Baio…”
As to any notion that Baio was unaware of his behavior, you can find his bio from May 9, 2011 on the internet – note the last sentence – how he has legal letters from a major music label, entertainment company, and a celebrity icon and has framed each one. He blogged about each one BEFORE the ‘Kind of Bloop’ thing blew up in his/Kicstarter’s face. Kind of hard to make the argument that like the 80% statistic you site, Baio was unaware of his own actions, or Kickstarter’s public ©/IP policies.
I think what is unique is that Maisel doesn’t have an agent, licensing department, guild or in house legal team to defend his registered work -rather, he is a creative individual with a personal profile that is also the ideal target market/customer Kickstarter is trying to attract – life-long independent artists?
Here are a few pieces:
1.) Baio’s project was on Kickstarter as early as Aug/Sept 2009, but the time line in is blog starts with a date of February of 2010.
2.) Read Baio’s own words, July 9, 2011:
“Ben: Upon receiving their original demand letter, I immediately pulled all the artwork offline, apologized for the confusion, and explained the limited scope of the project and the fact that only 300 albums were produced. Their response was that “this apology does not unring the bell of your infringement,” and they offered a $75,000 settlement and reiterated their intent to file suit within ten days, so I was forced to hire a lawyer to handle the negotiations.”
http://theonlinephotographer.typepad.com/the_online_photographer/2011/07/when-the-internet-turns-vicious.html
A.) Confusion.
B.) Apology.
C.) Immediately.
D.) All art work offline.
E.) 300 Albums Produced.
Doesn’t say ANYTHING about him being honest in 2010 about using it to promote Kickstarter? How about on-line promo/album downloads for 7-8 months? Nope. What about BEFORE he used it, or in Aug/Sept. 2009, or in February of 2010, not June 23, 2011, not even July 9, 2011.
3.) Read Kickstarters ©/IP terms for their users/customers:
http://www.kickstarter.com/terms-of-use?ref=footer
4.) Ask yourself, once Kickstarter helps (and understandably charges) artists and people with creative original ideas for the company’s services, what happens once the work is “out there” and Andy Baio wants to use it with or with out asking for permission is less defined? What if he wants to SELL their users/customers work with out asking for permission? What if it is registered? Does he ask?
5.) Even worse, what if Baio wants to PROMOTE KICKSTARTER using that work? Given that he never asked about it in the first place, what are the chances he would ask to use it to promote Kickstarter?
Sure would be nice if Kickstarter made a public statement about where they stand with respect to their former CTO’s behavior – it does not appear to be in line with their own policies.
Although Kicstarter’s June 23, 2011 blog was about Andy Baio – you can read that and judge for yourself if you think it is in line with the policies on their site…
Best,
Jamie
“Makes you want to just move out to the wilderness and get off the grid.” ~Doug Menuez
yep.
My Copyrights read like this(on my site)
All photographs appearing in this website were created by Rob Lettieri and are under the protection of the United States and international copyright laws. No photograph or image may be reproduced, copied, stored, manipulated or used whole or in part of a derivative work, without the written permission of Rob Lettieri.
A derivative work is the use of Rob Lettieri’s work as the basis for or part of another
photographic concept or illustration and is in violation of copyright and is definitely bad karma.
An eloquent analysis by Doug Menuez: http://dougmenuez.com/2011/07/10/slander-stupidity-the-mindless-mob-attacks-on-jay-maisel/
I am proud to have had Jay as a friend, mentor and, above all, hero, not just as a photographer but as a man. Thank you Jay.
I’m on Team Jay. This man has paid his dues MILLIONS of times. Stealing is not cool. Unfortunately, my generation thinks everything is fair game to steal.
I’ll be showing support to Jay by DLing Kind of Bloop as a torrent. For free. I mean, I’m not STEALING, I want to use the 8bit sound as a background to a show I’m having…I mean that’s OK, right? ;)
I have a legit question, maybe someone here or Rob could answer. It’s on point.
I live in a city that’s having a huge arts fest this weekend. The theme is 1982. Artists were asked to create work based on that date. I’ve recreated 8 “Big Nudes” style pieces based on Helmut Newton’s series from 1980-82. They are 12 feet high and will be hung from buildings in the city.
Is this an infringement? Copyright violation? I’m doing a legit homage with a theme assigned to an event. Can I sell the work?
If you have a legal question you need to ASK A LAWYER who will, appropriately, bill for the legal advice. C’mon people… you can’t ask for stuff for free then get pissed when someone asks it of you.
Mr. (I am assuming) Giordano has a legitimate legal question and in order to get the best advice, he needs to speak privately, in confidence, with his own attorney. Advice on a list isn’t worth the paper it isn’t written on.
And for the record, I am not shilling for work. In fact, if contacted by this person I will not “take the case” as it were. I suggest he contact Carolyn Wright if he’s in CA or NV, or any other IP attorney in his own jurisdiction (state).
Oh, or there are Lawyer for the Arts groups too–for cheap or free help.
Just don’t go it alone or rely on legal advice from non-lawyers.
“I’m doing a legit homage.”
How do you know it is legit? I suppose if you have permission from Helmut Newton’s estate and/or heirs it would be legit. But otherwise, how do you know?
Because it’s called HN82 and I’m admitting that it’s an homage created for a certain themed arts festival. Unlike someone like, say Annie Lifeboat (ha. Leibovitz. I just had to use what my autocorrect suggested ;) ) who stole ideas from Irving Penn etc.. and never admitted to it.
Having both met Jay and admired his work for decades and, luckily, also having met and shot Miles Davis personally I believe it’s all about stealing. I’m sure Mr. Davis would agree if her were with us.
And complete contempt for photography as a licensable form of art. Any writer, painter, composer, sculptor, celebrity licenser or film maker would think this was effing obvious. Only photographers are typically wimpy and lame enough not to display a legal spine in the face of simple theft!
God bless Jay and occasionally the ASMP for interceding for us dozy “professional” shooters.
So nice that a photographer can actually afford to take a stand!
I suspect that many others would love to do so but are simply unable to stand the expense of legal action and the business interruption etc.
Well done him.
But at what personal price? Wish others would address the Baio/Kickstarter connection and really ask themselves why the company has one publicly stated policy and asks it’s users/customers to respect the IP and © or others, but they then post a very, very sympathetic blog about Andy Baio, the same day as Andy Baio and have been silent on the issue since.
Is there anyone else who has been involved in or donated to a Kickstarter project who is also wondering when they might say something publicly about this important issue? They have a logo of the Magnum Foundaion on their site, as well as the NYT, and Wired, NPR, CNN, Good, Ptichfork – All of these companies also have © policies – they are ok with this?
of course, if Baio had hired a graphic designer to make original work, this would not have happened.
Artists, engineers, entrepreneurs, business people, et al: Hire a graphic designer ASAP for any project. The sooner the better so they are in on it from the start. Find one with at least 5-10 years in the industry under the belt and a college education or, hire a design firm. Sign a contract with them (they provide it) to protect you both. It can be amended and updated if the project scope changes. Then listen to what the designer says to you. They are usually right! They have been there before and know the ropes. Think of them as an architect for visual and typographic design. Money well spent.
BTW: an album cover design and insert design project would have been WAY less than $32,000. If requested, the designer would try to use the original art, legally, but if it was not available or too costly, they would have many other options, concepts, images, sketches to choose from and show the client. All legal and better than a 1980s looking, pixelated, hack design of a 1960s album cover.
[…] Jay Maisel Defends His Copyright And Is Attacked For It Online […]
Photographers must go after any copyright infringement , it will contribute to more respect for photography as a whole , i am afraid the big stick is all that works with most people especially with personal morals at such a low point.
And then to go on an attack of Jay Maisel is disgusting and i feel charges should be laid for inciting an ignorant mob.
If I was Jay Maisel and I had heard what this guy had done to Kind Of Blue I would’ve said “no way” just on that basis. :) Well done anyway Jay.
Talk about the “millionaire” and “disproportionate response” is distracting and irrelevant. This is a simple case of theft, based on a lack of respect for the copyright of a hugely respected artist. I can’t help wondering how this would have played if this tool had ripped off a Jim Marshall image. Compared to Jim jay is a pussycat.
Every single comment on this thread that refers to ‘theft’ is, I’m guessing, written by people who are far removed from the art of the current generation. Whether or not you like or accept it, artists such as Banksy (visually) and Danger Mouse (musically) are some of the most influential artistic voices working today. The fact that Baio settled is an indication of the current laws regarding copyright. He would have lost had it come to trial, largely because these laws have not progressed or shifted to take into account the way that art has changed.
The idea of copyright as it is currently protected by law is a largely outdated concept in today’s world of mash-ups, remixes and art appropriation. This does not mean that the images of Jay Maisel should be fair game, only that there should be laws allowing for the image to be used in this specific context, which is in an attempt to create an artistic statement. I agree wholeheartedly that Baio should have asked for permission, but feel this was simply an oversite on his part. Not necessarily a good reason for Maisel to make $32 000 from Baio (although he should be welcome to stop the image from being used if he is offended by it his decision to make a large amount of money to me says that he is not just making a point).
I think the main problem here is a lack of understanding that the image was used as a sort of homage, rather than a stolen image as many here are suggesting. Also, there’s a lack of understanding that Baio’s project was a labour of love, a work of passion, rather than a cheap attempt to make money as has also been suggested here.
What all this comes down to is whether you are a member of the ‘copyright’ or the ‘copyleft’, or whether you believe that artists should have the right to reinterpret the work of famous artists who have gone before under certain circumstances. A great documentary to watch on this topic is RIP: A Remix Manifesto.
It surely can’t be argued that the intention of Baio was to steel the image, which implies that he wanted credit for it, or otherwise that he wanted to cheaply reproduce it to make money (the equivalent of printing Mona Lisa T-shirts). He would have then reproduced it as is rather than in the 8 bit format. Quite clearly his intention was to make an artistic statement by transforming the photograph into something new. This does not, as some have suggested, amount to a lack of respect for Jay Maisel or lack of acceptance that the image is iconic. In fact, if the image were not iconic, the visual joke that the altered image is trying to make would not work.
I think Baio’s project was intended in good spirit and good humour, and while I accept how important Maisel is as a photographer, the way this case has panned out shows not only a lack of humour but, more worryingly, a lack of acceptance of the way art has changed in the digital era. It smacks of conservatism, and one wishes that such an iconic figure when it comes to photography would be more open minded.
‘Every single comment on this thread that refers to ‘theft’ is, I’m guessing, written by people who are far removed from the art of the current generation. Whether or not you like or accept it, artists such as Banksy (visually) and Danger Mouse (musically) are some of the most influential artistic voices working today. ”
The problem with your argument is that in the music world credits are given and royalties paid for use of the samples that are used. There is an entire system set up to facilitate that exchange.
“Appropriation” in the visual arts world is nothing new. It has been part of the visual art world for decades. When taken to far and if the artist whose work has been incorporated into another’s work is aggrieved enough they have to go legal to protect the rights they have to their property because we don’t have a system like the music and TV and film businesses have. Why isn’t there one? Maybe because there isn’t enough money involved.
Hi Daniel,
I am basically the same age as Andy Baio.
If you are a fan of Banksy, you’ll love his quote at the bottom of this article:
http://www.entertainmentlawmatters.com/?p=1853
Best,
Jamie
Huge props to APE for writing this killer post. Great info for those just getting started.
[…] have no intention of trying to do anything about it, although I probably could, I just found it […]
There is NO (!) question about, that whoever steal the intellectual property from another person then this thief must be plunged trough legal system and punished ! Period !!!
In this instance, this is another VICTORY for photographers. By the way, those $32,000.00 USD in my opinion was not enough. It should be at least 3 x more !!!
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