Don’t try telling that to famed photographer Jay Maisel. When Andy Baio released a chiptunes tribute to Miles Davis’s Kind of Blue, Kind of Bloop, he used a pixellated re-creation of the original’s Maisel cover photo.
Maisel, who lives in a six-story, 72-room, 35,000-square-foot lower Manhattan Beaux Arts Gilded Age mansion (for $5,000 you can go inside for a Jay Maisel workshop), felt violated:
“He is a purist when it comes to his photography,” his lawyer wrote. “With this in mind, I am certain you can understand that he felt violated to find his image of Miles Davis, one of his most well-known and highly-regarded images, had been pixellated, without his permission, and used in a number of forms including on several websites accessible around the world.”
In compensation he wanted “either statutory damages up to $150,000 for each infringement at the jury’s discretion and reasonable attorneys fees or actual damages and all profits attributed to the unlicensed use of his photograph, and $25,000 for Digital Millennium Copyright Act (DMCA) violations.”
in this context would you like to hazard a guess as to what reasonable attorneys fees might mean?
Baio believed his use was a Fair Use. He still believes his use was a Fair Use. And that kind of screwed:
Last September, I paid Maisel a sum of $32,500 and I’m unable to use the artwork again. (On the plus side, if you have a copy, it’s now a collector’s item!) I’m not exactly thrilled with this outcome, but I’m relieved it’s over.
But this is important: the fact that I settled is not an admission of guilt. My lawyers and I firmly believe that the pixel art is “fair use” and Maisel and his counsel firmly disagree. I settled for one reason: this was the least expensive option available.
Read on for his excellent articulation of why his work is indeed Fair Use and how the system fails to protect the people who are supposed to get an exception to copyright:
Anyone can file a lawsuit and the costs of defending yourself against a claim are high, regardless of how strong your case is. Combined with vague standards, the result is a chilling effect for every independent artist hoping to build upon or reference copyrighted works.
It breaks my heart that a project I did for fun, on the side, and out of pure love and dedication to the source material ended up costing me so much — emotionally and financially. For me, the chilling effect is palpably real. I’ve felt irrationally skittish about publishing almost anything since this happened. But the right to discuss the case publicly was one concession I demanded, and I felt obligated to use it. I wish more people did the same — maybe we wouldn’t all feel so alone.
Copyright law is supposed to foster and promote creative work. It does not. Instead, it fosters and promotes a small number of rich, self-important, stars backed by huge corporations whose interest is solely in protecting and perpetuating their own profit. That creative work survives at all in this system is the real wonder.
More from Thomas Hawk, Matthew Ingram, Mike Masnick and Duncan Davidson. Baio is collecting examples of reinterpretations of copyrighted works. He posted this image and asked, where do you draw the line?