Fair Use is Fair Only To The Rich
Jun 25th, 2011 | 2 responses
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?
2 Responses to “Fair Use is Fair Only To The Rich”
thanks Joe, readers might like to see where the little guy wins when bigger entities challenge. google grateful dead graham for court case. google also blue mountain and Hallmark. In first case, little guy met transformational bar needed to use graphic works owned in original by ‘museum’ collector/ promoter; in the other case, big corp was taken down for lifting works of a mom-pop creator’s images.
99% of the creators are striving to make their livings not just on what they create but on dervivative and residual and now digital rights linked to the skills they’ve invested in, honed and often huge amounts of time they’ve given, not including raising and providing for a family etc., often their elders, etc. That 99% ever strives to exploit their own creations for amounts of subsidiary income. They cant go on tour. Dont want to sell tshirts etc. Copyright allows them to do this, to keep working and keep trying. The part about keeping trying, is what most are about. It is often slow going, for luck plays a bigger part than most are willing to tell truthfully.
Copyright on drugs by pharma is in comparison a life and death situation. The re-copyrighting/patenting of expired … by changing one non-active element and then squatting on all mfg for another many decades is of far more concern.
I feel sorry for the guy you mentioned for he seems swept away by someone’s ill or wishful advisement. I may write to him. He seems a good guy. I’d like to know a lot more about his case. I note that what he has on his site, is vetted by lawyers.
WHen I had my brush with law school studying intellectual property law, I was interested that there are hundreds of case law writings wherein the right of way was granted to the ‘little guy.’
You mentioned how fair use seems disorganized (my word) I was just thinking in terms of studying sentencing of those who had been found guilty of crimes against persons, rape, maiming, murder; the understanding of the laws and sentencing across jurisdictions, is often a travesty. I wish our public and politicians as a group would rail against that, for unjustly enforcement takes away ALL freedoms in every way for a long long time.
So it goes.
I wrote up a piece, hopefully moderate enough
on how IP law is there to allow artists to protect their economic interest, not hoard their rights. I hope you find it interesting! I feel very strongly about this issue, so I had to write something 
http://journal.martinpannier.fr/maisel-vs-baio-protecting-your-economic-inter