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Jay Maisel sues Andy Baio for copyright infringement
June 23, 2011 9:52 AM   Subscribe

Andy Baio: “Kind of screwed”. Baio produced a chiptune tribute to Miles Davis’ classic album Kind of Blue. He licensed all of the tracks and assigned all profits directly to the five musicians on the album. The one thing he didn't do was check about the cover art, a pixelated rendering of the photo on the original album cover. Jay Maisel, the photographer who shot the photo in question, sued Baio for $150,000 per download plus $25,000 for DMCA violations. Baio settled for $32,500, not because he wasn’t convinced he was in the right (this almost certainly qualifies as fair use), but because it was “the least expensive option available”.

Gizmodo weighs in, pointing out that Maisel owns an entire building in lower Manhattan estimated to be worth at least $30 million.

Maisel’s Facebook page is awash in comments decrying the action and accusing Maisel of reinforcing the chilling effects of copyright law.
posted by spitefulcrow (302 comments total) 31 users marked this as a favorite

 
Funny that he licensed the cover songs but not the cover.
posted by smackfu at 9:58 AM on June 23, 2011 [3 favorites]


I was about to make a post out of this as well. I don't use the word much but Mr. Maisel, you're a douchebag.
posted by dobbs at 9:59 AM on June 23, 2011 [1 favorite]


It doesn't look remotely like fair use to me. It looks like a derivative work. Maisel was entirely within his rights to sue. How rich he is is entirely irrelevant. Baio should have licensed the photo just like he did the music.
posted by unSane at 9:59 AM on June 23, 2011 [18 favorites]


Maisel's Facebook page may be awash with comments, but Maisel's bank account is awash with $32.5k. Economic incentives usually trump social expectations.
posted by jaduncan at 9:59 AM on June 23, 2011 [2 favorites]



Free Speech means you don’t
have to ask if you’re allowed
to say what you want.

posted by DU at 10:00 AM on June 23, 2011 [3 favorites]


DMCA? DTMFA.
posted by Faint of Butt at 10:00 AM on June 23, 2011 [2 favorites]


It doesn't look remotely like fair use to me. It looks like a derivative work.

If you read Andy’s post, you’ll see exactly why he claims it is fair use. Mainly, it has to do with the transformative nature of the work.
posted by spitefulcrow at 10:02 AM on June 23, 2011 [1 favorite]


Extra credit: Where would you draw the line?

Image no 9 if it was up to me. People would still be able to make a connection to the original photo and I wouldn't get sued.
posted by Foci for Analysis at 10:03 AM on June 23, 2011 [1 favorite]


Clearly there is a line too, so the idea that this is clearly fair use is fuzzy as well.
posted by smackfu at 10:05 AM on June 23, 2011


Extra credit: Where would you draw the line?

It probably says something about me that the more abstract the covers got the more interesting I thought they were.
posted by shakespeherian at 10:05 AM on June 23, 2011 [1 favorite]


Previous and previouser.
posted by box at 10:06 AM on June 23, 2011 [1 favorite]


I'm all for fair use, but that's basically just a straight lift.

Looks like everyone got what they wanted. Waxy got to use someone else's art, got a little publicity. Meisel got some money, and got to maintain his "artistic integrity" by not actually granting the license.
posted by Eideteker at 10:06 AM on June 23, 2011 [1 favorite]


If you read Andy’s post, you’ll see exactly why he claims it is fair use.

Yeah, and he's just flat out wrong.
posted by unSane at 10:07 AM on June 23, 2011 [3 favorites]


This doesn't seem like it should fall under fair use, does it?
posted by zarq at 10:07 AM on June 23, 2011 [1 favorite]


How could this possibly be fair use? Sorry but not everyone who loses a copyright lawsuit should be an internet hero. He chose to license the music but thought it was cool to just slap some crappy Photoshop filter on the original cover and call it a day? Who cares if Jay Maisel is rich and successful, this seems like pretty blatant infringement to me.
posted by bradbane at 10:08 AM on June 23, 2011 [2 favorites]


#11 is my favorite.
posted by straight at 10:09 AM on June 23, 2011


Copyright is once again promoting creativity, as intended.
posted by ryoshu at 10:10 AM on June 23, 2011 [9 favorites]


He chose to license the music but thought it was cool to just slap some crappy Photoshop filter on the original cover and call it a day?

I'm not a copyright lawyer and have no idea whether Andy Baio is right or not, but I'm under the impression that the pixel-art cover was hand-drawn on a computer using the original cover as a reference, not the product of a filter.
posted by theodolite at 10:13 AM on June 23, 2011 [8 favorites]


Really bewildered that this isn't obviously fair use to so many here. Can anyone explain in detail why you don't think it qualifies?
posted by sudama at 10:13 AM on June 23, 2011 [6 favorites]


WTF kind of strange coincidence is this??? I just discovered and paid for this album through Amazon but as Amazon was redirecting from my payment back to the site, it went down! Guess I know why now...
posted by johnnybeggs at 10:15 AM on June 23, 2011


Is pixelation transformative just because you say it is artistic rather than technical?
posted by smackfu at 10:15 AM on June 23, 2011


bradbane: "How could this possibly be fair use? Sorry but not everyone who loses a copyright lawsuit should be an internet hero."

You know, I didn't read waxy's essay as an Internet Hero sort of thing, but more, I dunno, epistolic. "this is a thing I did, I was threatened a lawsuit and settled out of court, this is how it affected me, here are possible ramifications and social consequences". I thought it was neatly principled that rather than soliciting donations to make up for the settlement's cost, he's urging people to donate to the EFF.

bradbane: "but thought it was cool to just slap some crappy Photoshop filter on the original cover and call it a day?"

Oh, wait, you didn't read the story. OK.
posted by boo_radley at 10:15 AM on June 23, 2011 [37 favorites]


(Andy Baio is also Metafilter's own waxpancake.)
posted by box at 10:15 AM on June 23, 2011 [5 favorites]


Similarly, can I scan a piece of art at 2000 dpi, then reproduce it "pixelated" at 500 dpi and that would be fair use? Does it magically become fair use once I reach a certain dpi?
posted by smackfu at 10:16 AM on June 23, 2011 [2 favorites]


It doesn't look remotely like fair use to me. It looks like a derivative work. Maisel was entirely within his rights to sue. How rich he is is entirely irrelevant. Baio should have licensed the photo just like he did the music.

Agreed. Iconic album cover, guy does a tribute, licenses all the music, and then fails to license the cover, which he also uses as the basis for his cover. The circumstances scream derivative work--the dude is deriving all of the music but the related cover is not?

Please. Get real.
posted by Ironmouth at 10:17 AM on June 23, 2011 [1 favorite]


It ain't fair use if a high-priced lawyer says it ain't.
posted by tommasz at 10:17 AM on June 23, 2011 [4 favorites]


thought it was cool to just slap some crappy Photoshop filter on the original cover and call it a day

It was a new derivative work, created by hand using the original as a reference. It was also a bit of a parody, though it wasn't at the Weird Al level of parody for a music album. I say it's fair use.
posted by mathowie at 10:17 AM on June 23, 2011 [22 favorites]


Fair use or not, that is one hell of a home.
posted by Civil_Disobedient at 10:18 AM on June 23, 2011


If you don't defend copyrights, you lose them, right? Isn't Maisel doing here what he's forced to do by the copyright system?

The hyperbolic numbers ($150k PER DOWNLOAD?!) make for a great article to get people angry at the mean rich photographer, but I would guess they were never intended to be realistic; rather, an opening salvo in a legal game that Maisel's lawyers always intended to parlay into a more reasonable settlement.
posted by qxntpqbbbqxl at 10:18 AM on June 23, 2011


but thought it was cool to just slap some crappy Photoshop filter on the original cover and call it a day?

The cover was created by hand with the original as a reference. Which you would have realized if you had read the article in the first link in this post.
posted by spitefulcrow at 10:19 AM on June 23, 2011 [7 favorites]


So this is where Chachi went.
posted by fire&wings at 10:19 AM on June 23, 2011


If he thought that digitizing something was transformative enough to qualify for fair use, why did he bother licensing the chiptune tracks?
posted by thecjm at 10:19 AM on June 23, 2011 [4 favorites]


He should have used the "draw the line" sequence of progressively more digitized images as the cover art. That would have been a shoo-in for fair use. Using the single slightly digitized version doesn't quite cut it in my book.

But his point stands about it being a totally moot point since it all comes down to whether or not you can afford the legal fees to prove your case. I think he probably could have garnered some pro-bono legal help from the EFF types had his case been stronger, but the system should not be set up to require charitable ninja lawyering just to obtain even the opportunity for justice.

Justice is blind, but she can definitely tell the difference between a dollar and a $100 bill by touch.
posted by jetsetsc at 10:19 AM on June 23, 2011 [3 favorites]


Four main factors come into play:

The purpose and character of your use: Was the material transformed into something new or copied verbatim? Also, was it for commercial or educational use?
The nature of the copyrighted work
The amount and substantiality of the portion taken, and
The effect of the use upon the potential market
For each case, courts take these factors into account and render a verdict, occasionally contradicting the opinions of past judges and juries.

The crux of our disagreement hinges on the first factor — whether the Kind of Bloop illustration is "transformative."


Dunno, there is a commercial aspect too. The fact that he is donating the profits to the musicians does not make it a commercial exploitation. People are buying and selling the album.

His problem is this, if he just put it up somewhere, then maybe. But he put it on a cover album of the exact same tunes. Not so transformative then.
posted by Ironmouth at 10:20 AM on June 23, 2011


I have been following this this morning. I am not sure where I stand on the fair use part of it but there was only one way this was ever going to play out once it was posted to waxy. It just screams "Internet lynch mob."
posted by proj at 10:21 AM on June 23, 2011 [2 favorites]


Also, I'd argue there's a definite system in place for licensing music. Andy probably licensed the music because it was easy and available, with an entire system of copyright holders and established rates where you just pay a set amount based on the number of CDs pressed.

With the cover art, who knows if Blue Note records owns the copyright or if the photographer does? How do you even figure that out? Is Blue Note still in business? How much is the standard rate for paying for this kind of use? There's no set amounts for these things like song licensing.
posted by mathowie at 10:21 AM on June 23, 2011 [4 favorites]


By the way, what you actually do when you think something is fair use, is you ask a lawyer and if necessary you get legal insurance. I've been through this many times. What you don't do is go 'hey, looks like fair use to me', and go ahead anyway.
posted by unSane at 10:21 AM on June 23, 2011 [1 favorite]


If you don't defend copyrights, you lose them, right?

False, you are thinking of trademarks. You must defend trademarks in order to own them. Copyright and trademark law have almost nothing to do with each other. Apples and oranges.
posted by mathowie at 10:23 AM on June 23, 2011 [12 favorites]


If you don't defend copyrights, you lose them, right? Isn't Maisel doing here what he's forced to do by the copyright system?

No, this is only trademarks.

It might make sense to discuss whether he should have been required to license the image and what that might mean from a copyright policy point of view, but it makes zero sense for a bunch of people who are not IP lawyers to debate whether this was "Fair Use" because that's a legal test that I'm guessing is a little more complex to determine than "Seems fair to me".
posted by atrazine at 10:23 AM on June 23, 2011


With the cover art, who knows if Blue Note records owns the copyright or if the photographer does? How do you even figure that out? Is Blue Note still in business? How much is the standard rate for paying for this kind of use? There's no set amounts for these things like song licensing.

Seriously, WTF? You research who owns the copyright. It's called due diligence. The photographer has an agent. He will tell you what the rates are and if the image is available. It's not rocket science.
posted by unSane at 10:23 AM on June 23, 2011 [1 favorite]


(I"m guessing I could get an answer for you on both the rights and the likely rate in under ten minutes)
posted by unSane at 10:25 AM on June 23, 2011


It just screams "Internet lynch mob."

I think it elicits the mob because it seems so outlandish. It was a <$5,000 small pressing of a few CDs, and the photographer originally came at him with a price of hundreds of thousands of dollars for his CD artwork. It's outlandish. That's why there's a mob of people saying it's crazy. The photographer could have said pay me $5,000 and it would have seemed steep, but fair in my opinion.

A year plus legal battle and eventual settling for $32,500 seems outrageous because it is.
posted by mathowie at 10:26 AM on June 23, 2011 [48 favorites]


I'm wondering who he licensed the music from. Aren't they all dead by now? This seems to me more unfair than paying a living photog (albeit a dick) to use his photo. Copyright law needs to change.
posted by Steakfrites at 10:27 AM on June 23, 2011 [2 favorites]


With the cover art, who knows if Blue Note records owns the copyright or if the photographer does? How do you even figure that out? Is Blue Note still in business? How much is the standard rate for paying for this kind of use? There's no set amounts for these things like song licensing.

Wha? The "I don't know, so it's totally okay" defense? AskMe manages to find people who disappeared in other countries decades ago; I'm pretty sure a Metafilter's Own could have used his one question that week to find out who owned the cover photo if he wanted to.
posted by headspace at 10:27 AM on June 23, 2011


I"m guessing I could get an answer for you on both the rights and the likely rate in under ten minutes

I seriously doubt that. I bet you could figure out the music licensing for a cover song in ten minutes, as there are published rate schedules and rights holder companies that turned this into a business decades ago. Aside from something huge like Getty Images, there really isn't anything like that for album art.
posted by mathowie at 10:28 AM on June 23, 2011


It just screams "Internet lynch mob."

I think it elicits the mob because it seems so outlandish. It was a


Sure, I understand that but regardless intellectual property is one of these things that draws all sorts of vitriol. Combine popular web personalities and coverage on boingboing, kottke, etc. and the reaction is always going to be the same. Regardless of the size of the suit, IMO. Of course, we are now discussing counterfactuals, so it's hard to know what's driving the outrage.
posted by proj at 10:28 AM on June 23, 2011 [1 favorite]


(The most likely scenario to me is that somebody found out how much it was likely to cost to license the image from Maisel, realized it was uneconomic, and decided to take a Hail Mary on fair use. I've been in many rooms where that has been discussed but it's never ever been done without input from a lawyer experienced in fair use).
posted by unSane at 10:29 AM on June 23, 2011


I can see both sides of it. Maybe this shook out the best way it could have.
posted by notmydesk at 10:29 AM on June 23, 2011


For all of you who think this is fair use, could you please explain why he should have bothered to license the songs? Why isn't that fair use? Or are we just going by the internet definition of "fair use" which is "whatever an artist I like steals is OK"?

Whether he drew it or not really has absolutely nothing to do with whether it is derivative or not.

How much is the standard rate for paying for this kind of use? There's no set amounts for these things like song licensing.

Uh yeah there are, photographers license images every single day for exactly this kind of thing. Want to get an idea of how much it would cost? Find a rights managed image on Getty and use the calculator.
posted by bradbane at 10:29 AM on June 23, 2011 [2 favorites]


Isn't it true that the courts have meticulously avoided defining any sort of legal test for fair use? Which leaves things in the hands of bullies with money.
posted by sudama at 10:29 AM on June 23, 2011 [1 favorite]


there really isn't anything like that for album art.

You call the photo agency, tell them what you want to do, and negotiate a rate. They'll give you a ballpark over the phone. Why is this even an issue?
posted by unSane at 10:30 AM on June 23, 2011


unSane: "I've been through this many times. What you don't do is go 'hey, looks like fair use to me', and go ahead anyway."

I agree, and to me , that was the most striking thing to read from waxy:
There are a lot of myths and misconceptions about "fair use" on the Internet. Everyone thinks they know what fair use is, but not even attorneys, judges, and juries can agree on a clear definition. The doctrine itself, first introduced in the 1976 Copyright Act, is frustratingly vague and continually being reinterpreted.
So basically it's even a gamble if you have a really well researched position to argue from (legally)!
Stanford's Fair Use Center asks, "Has the material you have taken from the original work been transformed by adding new expression or meaning? Was value added to the original by creating new information, new aesthetics, new insights and understandings?"

This is one of those "I know it when I see it" sort of arguments: if you were waxy, how willing would you be to take this case to court to defend your position? Based on the damages he quotes, I don't think I would ever risk it.
posted by boo_radley at 10:31 AM on June 23, 2011 [1 favorite]


from the article:
And it's worth noting that trying to license the image would have been moot. When asked how much he would've charged for a license, Maisel told his lawyer that he would never have granted a license for the pixel art.
posted by epersonae at 10:31 AM on June 23, 2011 [3 favorites]


The 'I couldn't be bothered' defence is not known to be particularly effective in court, by the way.
posted by unSane at 10:31 AM on June 23, 2011


I think more so than the story of Andy's right or wrong, this is a story of the failure of the legal system.

The entire point of judges, juries, and a court is to provide an equitable way for people to use professional third parties (judges) and theoretically impartial peers (juries) to decide non-trivial cases.

In this case, the law made it easy to threaten Andy with tremendous fines, and the high cost of the legal system made it impossible for us to get a judgment on the truth (or at the very least, the legal truth).

And this is a gigantic shame.
posted by haykinson at 10:32 AM on June 23, 2011 [17 favorites]


Hey, does anyone know how unSane feels about this issue?
posted by Ian A.T. at 10:32 AM on June 23, 2011 [15 favorites]


It was also a bit of a parody, though it wasn't at the Weird Al level of parody for a music album. I say it's fair use.

That would be my question for the lawyers. What are the requirements to classify the cover (or the music) as a "parody"?

What you don't do is go 'hey, looks like fair use to me', and go ahead anyway.

Huh, that's exactly what I do. My definition of "fair use" contains multitudes.
posted by mrgrimm at 10:32 AM on June 23, 2011 [1 favorite]


I'm wondering who he licensed the music from. Aren't they all dead by now?

Although Miles Davis, John Coltrane, Bill Evans, Cannonball Adderley, Wynton Kelly and Paul Chambers are all dead, Jimmy Cobb is still alive.
posted by box at 10:32 AM on June 23, 2011


As I understand it, there is mandatory licensing for cover songs; the rights holders cannot deny you the ability to record a cover but they can charge (externally fixed) license fees for the privilege. Maybe this model could be applied to other types of copyrighted works?

Suggested replacement cover image: pixelated representation of Jay Maisel posed like Miles Davis, except eating a turd.
posted by SpaceBass at 10:33 AM on June 23, 2011 [5 favorites]


This is certainly not a clear-cut case of fair use. At best, whether this is fair use is debatable. It was foolish to use the cover without licensing it, because the chance of a court finding that this isn't fair use is so high.

Isn't it true that the courts have meticulously avoided defining any sort of legal test for fair use?

No. The test for fair use is in the statute itself, and there's a ton of case law. But yes, it can be hard to interpret.
posted by grouse at 10:34 AM on June 23, 2011


Who knows what would have happened if he'd just bothered to approach the photographer first? To tell him about the project, about how he's already licensed the music and to discuss a potentially discounted rights fee for use of the photo considering the profits would go to the musicians.

A few years ago I was going to a lot of local shows with my camera. And sometimes I'd get approached by bands to use some of my photos. If they came to me saying, "We can't pay you anything but we'll give you credit in the liner notes. Can we use you picture?" I'd usually say yes. But if their approach was, "Hey can we use you pictures?" I'd start asking about fees and it wouldn't go anywhere. Which was okay by me. I just didn't want my photographs to be thought of as valueless.
posted by thecjm at 10:34 AM on June 23, 2011 [1 favorite]


Isn't it true that the courts have meticulously avoided defining any sort of legal test for fair use? Which leaves things in the hands of bullies with money.

There is extensive case law on fair use, which is as close to courts get to setting legal tests for things.
posted by atrazine at 10:36 AM on June 23, 2011


This is one of those "I know it when I see it" sort of arguments ...

Which always works so well for "pornography" ... vague definitions that force a high level of personal subjectivity.
posted by mrgrimm at 10:36 AM on June 23, 2011


OTOH, how could you possibly define a bright-line test for this kind of thing?
posted by smackfu at 10:37 AM on June 23, 2011 [2 favorites]


Ian A.T.: "Hey, does anyone know how unSane feels about this issue"

I dunno, let's ask bradbane.
posted by boo_radley at 10:37 AM on June 23, 2011


I loved him in "Charles in Charge".
posted by blue_beetle at 10:37 AM on June 23, 2011 [2 favorites]


thecjm, see epersonae's comment
posted by ukdanae at 10:37 AM on June 23, 2011


Looking at the case law (via Wikipedia as I am not a lawyer): How is this album cover less transformative than Google's image search result thumbnails?
posted by sudama at 10:40 AM on June 23, 2011


I think more so than the story of Andy's right or wrong, this is a story of the failure of the legal system.

The legal system does not optimize for cost. In theory, it optimizes for justice. In practice, it's simply sub-optimal in every aspect. But even a perfect legal system would be expensive.
posted by GuyZero at 10:41 AM on June 23, 2011


But even a perfect legal system would be expensive.

I'd have gone with "impossible"...
posted by brennen at 10:44 AM on June 23, 2011


Looking at the case law (via Wikipedia as I am not a lawyer): How is this album cover less transformative than Google's image search result thumbnails?

Also from Wikipedia: "Specifically, the court ruled that Google transformed the images from a use of entertainment and artistic expression to one of retrieving information." Reusing it as an album cover as in this case wouldn't do the same.
posted by smackfu at 10:45 AM on June 23, 2011


thecjm: If he thought that digitizing something was transformative enough to qualify for fair use, why did he bother licensing the chiptune tracks?

The U.S. Copyright Act of 1909 allows anyone the right to record a cover song, as long as you pay a standard mechanical license, which I happily did; the "fair use" doctrine simply doesn't apply at all. I didn't try to license the photo, because I never believed (and still don't believe) that I needed to. It's an original illustration based on a famous photograph, in a new medium and used to comment on the source. It has a strong fair use defense, but that barely matters: fair use is far too ambiguous, with frustratingly little caselaw, and actually affords very little legal protection to creators.

And if you think pixel art's not art, and it's the same thing as a Photoshop filter, I encourage you to try it yourself. Pixel art is incredibly difficult to do well. I tried myself, and couldn't do it.

Happy to answer any other questions.
posted by waxpancake at 10:46 AM on June 23, 2011 [50 favorites]


For all of you who think this is fair use, could you please explain why he should have bothered to license the songs?

Because, as this case clearly shows, it makes no practical difference whether or not a court would actually find something to be fair use or not, due to the vast majority of these kinds of cases being settled out of court. So if you have any reason to think a record company will sue you over any possible use of their song (even something explicitly covered by fair use such as parody), you should play it safe and pay to license it. Pissing off people who have piles of money to spend on lawyers is not a good idea, even if you piss them off in a way that is most likely legal.
posted by burnmp3s at 10:47 AM on June 23, 2011 [3 favorites]


From Baio's article:
The challenge was to see whether chiptune artists could create something highly improvisational, warm, and beautiful from the limited palette of 1980s game consoles. (I think we succeeded.)

Similarly, the purpose of the album art was to engage both artist and viewer in the same exercise — 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?


That's the problem. The cover is exactly as transformative as the music. Why license one but not the other?
posted by factory123 at 10:49 AM on June 23, 2011 [1 favorite]


The core of the article (and the problem) is not "is this/is it not fair use" or even "should he/should he not have sought permission". The core of the article is this:

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.

This is a problem, regardless of what you think of fair use, permission, or copyright. If expensive lawyers can simply bully people into financial surrender rather than having to prove their case in court, then there is no such thing as fair use in practice... at least, not for ordinary individuals.
posted by vorfeed at 10:49 AM on June 23, 2011 [24 favorites]


Yeah, I can't believe how many people in this thread are claiming this isn't fair use. In order to make its point, this new art had to reference the old art. In my mind, this pixel art is very clearly a parody.
posted by scrowdid at 10:51 AM on June 23, 2011


the "fair use" doctrine simply doesn't apply at all

What do you mean? Fair use is applied all the time in music, most notably here.
posted by unSane at 10:51 AM on June 23, 2011


(Meaning not to demean it by calling it "parody", but I'd say it qualifies for at least those protections.)
posted by scrowdid at 10:53 AM on June 23, 2011


You call the photo agency, tell them what you want to do, and negotiate a rate. They'll give you a ballpark over the phone. Why is this even an issue?

I think it does convey new information and express something different from the original, and is therefore transformative. By making it in an 8-bit graphics style, it communicates that this is going to be a weird digital re-interpretation of Kind of Blue. Of course, from a legal copyright point of view I have no idea what I'm talking about.


And if you think pixel art's not art, and it's the same thing as a Photoshop filter, I encourage you to try it yourself. Pixel art is incredibly difficult to do well. I tried myself, and couldn't do it.


Amen, brother. For one of my albums I re-did the "Bad Dudes" title screen with me and my collaborator as the titular Bad Dudes. You gotta do this stuff pixel by pixel, it's not easy.
posted by Hoopo at 10:53 AM on June 23, 2011 [1 favorite]


This makes me so angry I almost can't see straight.

I wish ill fortune to Jay Maisel; I sincerely hope he has occasion to feel powerless in the face of an enemy who is causing him suffering simply because this enemy may. I hope he looks up into the face of his tormentor and begs for mercy. I hope mercy is denied him.
posted by pts at 10:54 AM on June 23, 2011 [4 favorites]


Photoshop filter
For what its worth: here's what it looks like when ran through Photoshop's Mosaic.
posted by Threeway Handshake at 10:57 AM on June 23, 2011 [9 favorites]


sudama, fair use cannot be simply reduced to whether a work is transformative or not. Even the first factor of fair use is not simply whether work is transformative or not. It is "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes." As smackfu explains, image thumbnails in search engines are an entirely different kind of use than most cases of the original images.

Here you have a derivative work made from an album cover to be used as another album cover.

waxpancake, I think pixel art is art, but this is clearly a derivative work. Just because human creativity was used in creating the derivative work does not clearly make it fair.

If expensive lawyers can simply bully people into financial surrender rather than having to prove their case in court, then there is no such thing as fair use in practice... at least, not for ordinary individuals.

I disagree. Part of the problem here is that Baio's interpretation of fair use is so debatable. Something that agreed on as fair use would be much less likely to produce this outcome.

I actually disagree with many aspects of the ways U.S. copyright law and civil procedure work, and some changes I would like to see that would increase fairness in the system, but I don't think they would have helped Baio.
posted by grouse at 10:58 AM on June 23, 2011 [1 favorite]


unSane: Yes, of course, fair use can apply to both cases involving parody and sampling. I was referring to cover songs.
posted by waxpancake at 10:58 AM on June 23, 2011 [1 favorite]


That's the problem. The cover is exactly as transformative as the music. Why license one but not the other?

I think the difference is that music has these compulsory standard mechanical licenses referred to by waxpancake and that photos don't. So I think that Maisel could have said "No, at any price" while the rights holders for the music wouldn't have that option. (IANAL)
posted by ravelite at 11:01 AM on June 23, 2011


It's pretty clear that this is not fair use, BUT how does Maisel let himself sue someone for $32K who made 1) no profit on his project; and 2) who did no harm to Maisel's "livelihood"?

A better solution would have been to publicize the infringement - perhaps requesting a public apology from Baio, then letting Baio continue to use the image under license. I'll bet that would have resulted in a win for both men as a result of the publicity - with Maisel keeping respect among many with different ideas of copyright than his, and Baio perhaps selling some of his work. But this? Maisel has just made himself a pariah among a very large number of the public and fellow artists. How much will that cost him, in the long run? This was not thought through very well (understandably, because lawyers were involved!).

Maisel's action is really, really bad form. It's one thing to keep to the letter of the law when protecting one's property; it's another to request justice that is completely out of balance re: the crime committed.
posted by Vibrissae at 11:02 AM on June 23, 2011


I think the difference is that music has these compulsory standard mechanical licenses referred to by waxpancake and that photos don't. So I think that Maisel could have said "No, at any price" while the rights holders for the music wouldn't have that option. (IANAL)

You can license a song to make a cover version without seeking permission from the publisher but if you want to change any of the lyrics, you do indeed need to seek permission (unless you can avail yourself of fair use, obviously. See Weird Al vs Lady Gaga, for example.
posted by unSane at 11:04 AM on June 23, 2011


I wonder if Maisel even knew that this was happening. It seems possible that Maisel's lawyers negotiated the entire thing without any input from Maisel. It is their job after all.
posted by GuyZero at 11:05 AM on June 23, 2011


Is pixelation transformative just because you say it is artistic rather than technical?

Is photography creative just because you say it is artistic rather than technical?
posted by ChurchHatesTucker at 11:05 AM on June 23, 2011 [1 favorite]


It was less than $5,000 small pressing of a few CDs, and the photographer originally came at him with a price of hundreds of thousands of dollars for his CD artwork. It's outlandish.

I know it's different from a legal perspective but as soon as I read about Andy's trouble I thought of this in similar outlandishness.
posted by dobbs at 11:05 AM on June 23, 2011


This makes me so angry I almost can't see straight.

That's not exactly healthy.
posted by smackfu at 11:06 AM on June 23, 2011


What do you mean? Fair use is applied all the time in music, most notably here.

Ignoring the fact that the case was between two commercial record companies with comparable legal resources, in the end that case was settled out of court even after it was decided by the Supreme Court that 2 Live Crew's parody was covered by fair use. From your Wikipedia link:

According to press reports, under terms of the settlement, Acuff-Rose dismissed its lawsuit, and 2 Live Crew agreed to license the sale of its parody of the song. Although Acuff-Rose stated that it was paid under the settlement, the terms were not otherwise disclosed.
posted by burnmp3s at 11:06 AM on June 23, 2011


I wonder if Maisel even knew that this was happening. It seems possible that Maisel's lawyers negotiated the entire thing without any input from Maisel. It is their job after all.

If that were the case, then he'd need some new lawyers. This is the sort of thing where your name becomes nationally known as being a "complete dickface."
posted by Threeway Handshake at 11:06 AM on June 23, 2011 [2 favorites]


It was less than $5,000 small pressing of a few CDs, and the photographer originally came at him with a price of hundreds of thousands of dollars for his CD artwork.

It was statutory damages or actual damages.
posted by smackfu at 11:07 AM on June 23, 2011


sued Baio for $150,000 per download

I don't know about copyright claims, but this puts Maisel solidly in douche territory. And if you say it's just his lawyers doing this, then both he and his lawyers are douches.
posted by benito.strauss at 11:07 AM on June 23, 2011 [2 favorites]


It's an original illustration based on a famous photograph, in a new medium and used to comment on the source.

You (?) took one album cover and made it into another album cover for the same music (that you licensed!) to sell commercially. Sorry but I fail to see how this even comes close to meeting any of the criteria for fair use.

I think the difference is that music has these compulsory standard mechanical licenses referred to by waxpancake and that photos don't. So I think that Maisel could have said "No, at any price" while the rights holders for the music wouldn't have that option.

So what? Even if Maisel is a giant douchebag that is his right to say no.
posted by bradbane at 11:09 AM on June 23, 2011 [2 favorites]


Gizmodo weighs in, pointing out that Maisel owns an entire building in lower Manhattan estimated to be worth at least $30 million.

This is kind of odd to point out, since he bought the building in 1966 when the neighborhood was super sketchy and has lived in it since.
posted by smackfu at 11:10 AM on June 23, 2011


One of the things I disagree with about current U.S. copyright law is that the damages are so disproportionate and excessive.
posted by grouse at 11:10 AM on June 23, 2011 [1 favorite]


how does Maisel let himself sue someone for $32K who made 1) no profit on his project; and 2) who did no harm to Maisel's "livelihood"?

Maybe Maisel just really didn't like the pixel-art version of his photo? Maybe he said, "Yuck, I'm not giving permission for that."

I like some of the more abstract versions in the "where do you draw the line?" series but I dislike the original one he was using for the album. For me it falls into a sort of uncanny valley -- too detailed to be an attractive abstract picture but not detailed enough to look good as a more representational one. But then I have that reaction to most NES-level pixel art, so I'm sure lots of people will disagree with me.
posted by straight at 11:10 AM on June 23, 2011


Please note that the standard for enforcing copyright infringement is not "don't be a douchebag" or "ok, sue, but only a little, not a lot" as the current laws stand.
posted by proj at 11:11 AM on June 23, 2011 [3 favorites]


I'm just tickled to see so many people on MetaFilter coming down on the side of defense lawyers for a change. I mean, sure, the dinosaur eats us first, but that's only because the unscrupulous plaintiffs' lawyers leave a bad taste in its mouth ;-)
posted by The World Famous at 11:14 AM on June 23, 2011


Interesting thing is that this all happened last year. He settled in September 2010. Makes you wonder how much of this stuff is going on behind the scenes constantly, if a blogger such as this doesn't even blog about it.
posted by smackfu at 11:15 AM on June 23, 2011


As a copyright attorney who frequently has clients ask if this or that is a fair use, I always tell them the same thing - if we need to definitively answer that question, it's because you've been sued. If you're not willing to bear the costs - financial and emotional - of getting the answer, then let's avoid the need to ask.

If pressed, I'd say waxpancake had a shot at success. In context, the Bloop cover may be transformative enough. I think more pixelation - Mario-style - might have made the point stronger.

If you don't think it's transformative, can you think of any way to use the photo that would be? An album of heavy metal covers that featured an illustration of the photo with Miles in studded leather, long hair, etc? Why would that work?

But as waxpancake says, winning or losing isn't the issue, it's the cost to play the game. And Masiel's lawyers sure knew that when they sent their demand - as do we when we send ours.
posted by schoolgirl report at 11:17 AM on June 23, 2011 [30 favorites]


So does the position that this is not fair use rest on an opinion that the pixel art cover does *not* create "new aesthetics, new insights and understandings" in the form of an "aesthetic declaration"? I would really like to understand this.
posted by sudama at 11:18 AM on June 23, 2011


That's the problem. The cover is exactly as transformative as the music. Why license one but not the other?

Again, cover songs do not need to be at all "transformative" to be legal, and there's a simple and affordable way to make sure you are 100% covered whenever you record one. And, on preview, there is no such thing as the "right to say no" to a cover song.

Album covers, not so much.

Samples, also not so much: most American pressing places will not press a record which contains samples unless you have a Master Use License for each, which involves jumping through whatever costly hoops the copyright owner asks you to. Getting a license for a cover song usually involves filling out a generic form at Songfile, after which you pay royalties at the US statutory rate, around ten cents per copy of the record.
posted by vorfeed at 11:19 AM on June 23, 2011 [1 favorite]


With respect to whether Maisel knew about it or not, it would be very unusual for a lawyer to sign a settlement agreement on behalf of an individual without informing the individual of the agreement and getting approval beforehand. It is not impossible, but it would be unusual and unlikely.
posted by Mid at 11:19 AM on June 23, 2011


I am not going to get too involved here but need to point out a few things.

The image in question is absolutely iconic. Think of the phrase 'Kind of Blue' and what comes into your mind. Probably a few notes of the album and this image. Do you think he would just licence it out to anyone that asked for a small fee because it is only a small run of CD's? No, because that would cheapen the image. So he asks for a huge fee because that is what it is worth. If you wanted it you could have paid for it.

Another thing. Why is it so wrong the photographer would want to protect the work he has created over decades? Musicians/record companies do it all the time. As a photographer I can't tell you how many times I have had musicians ask for the copyright of my images for no fee, and yes, I am talking major acts here. Then when you explain to them the basics of licencing they balk. Why is there so often a disconnect? Rhetorical.
posted by WickedPissah at 11:20 AM on June 23, 2011 [3 favorites]


How about this Fair Use case: Rogers v Koons:
Art Rogers, a professional photographer, took a black-and-white photo of a man and a woman with their arms full of puppies. The photograph was simply entitled, Puppies, and was used on greeting cards and other generic merchandise.

Jeff Koons, an internationally known artist, found the picture on a postcard and wanted to make a sculpture based on the photograph for an art show on the theme of banality of everyday items. After removing the copyright label from the postcard, he gave it to his assistants with instructions on how to model the sculpture. He asked that as much detail be copied as possible, though the puppies were to be made blue, their noses exaggerated, and flowers to be added to the hair of the man and woman.
Who do you think won?
posted by smackfu at 11:22 AM on June 23, 2011 [1 favorite]


So now, instead of saying "don't be a douchebag" can we start saying "don't be a Jay Meisel"?

Because the one thing we can agree on is that Jay Meisel is a douche.
posted by ged at 11:23 AM on June 23, 2011


You know, there are many things you can do which are legally justifiable but are still mind-bogglingly petty, vindictive, and negatively-impacting on the world around you. IMO, the photographer's actions clearly fall in this category.

That's why I don't get about the inevitable "he had every right to do this" sort of arguments in cases like this. There's no law against douchebaggery, but that doesn't mean being a douchebag is ok, and it certainly doesn't make it laudable.
posted by treepour at 11:26 AM on June 23, 2011 [4 favorites]


...winning or losing isn't the issue, it's the cost to play the game. And Masiel's lawyers sure knew that when they sent their demand - as do we when we send ours.

A great comment which really nails the issue: civil justice is available only for the wealthy and a club with which to subdue the rest.
posted by bonehead at 11:27 AM on June 23, 2011 [4 favorites]


treepour, when you refer to doing things which are legally justifiable but are still mind-bogglingly petty, etc., and you reference the "inevitable 'he had every right to do this' sort of arguments," are you referring to Baio's legally-justifiable appropriation of Meisel's iconic photograph against the wishes of the artist, or are you referring to Meisel's legally-justifiable attempt to enforce his legal rights in his artwork? Who are you calling a douchebag here?
posted by The World Famous at 11:30 AM on June 23, 2011 [6 favorites]


For what its worth: here's what it looks like when ran through Photoshop's Mosaic.

Dayum, Threeway Handshake you better lawyer up stat.
posted by stagewhisper at 11:30 AM on June 23, 2011


One of the cool things about websites like Slashdot and MetaFilter is that they have huge memberships, so often you'll get to hear from somebody who is expert in the subject being discussed. One of the worst things is how often lay users will argue vehemently with that expert (often citing Wikipedia).

Frankly, for all some of you know about law, this thread would be more productive if it would derail into a discussion of whether using the term "douchebag" is unpleasantly sexist or misogynistic.
posted by red clover at 11:31 AM on June 23, 2011 [1 favorite]


Which you're all too eager to encourage.
posted by blucevalo at 11:32 AM on June 23, 2011


Who do you think won?

"The United States Court of Appeals for the Second Circuit found that an artist copying a photograph could be liable for infringement when there was no clear need to imitate the photograph for parody."
posted by Threeway Handshake at 11:33 AM on June 23, 2011


The image in question is absolutely iconic. Think of the phrase 'Kind of Blue' and what comes into your mind. Probably a few notes of the album and this image.

I like album art as much as the next guy, but rarely is it the first thing to come to mind when I think of an album. This is becoming more and more true given today's rampant piracy, CDR copies, and mp3 files on portable music players becoming the norm where it's now possible to never see a physical album or its cover. I also disagree that this "cheapens" the image, but I'm not really sure what is meant by that.

Why is it so wrong the photographer would want to protect the work he has created over decades?

Nothing at all. Going for damages instead of a cease-and-decist or something seems a bit over the top in my mind given the scale of the supposed use of his work here, let alone the fact that this is a hand made, re-interpeted recreation of his work rather than a duplication or direct use of his photo.

this thread would be more productive if it would derail into a discussion of whether using the term "douchebag" is unpleasantly sexist or misogynistic.

Already been done, and there was no consensus there either.
posted by Hoopo at 11:37 AM on June 23, 2011 [1 favorite]


A great comment which really nails the issue: civil justice is available only for the wealthy and a club with which to subdue the rest.

Make no mistake, bonehead, this approach works very well when the plaintiff isn't wealthy and the infringer is. In fact, as you might imagine, that's the more frequent situation. Nobody, not even wealthy people or companies, wants to waste time and money in court. We've settled copyright infringement cases on behalf of the little guy against the man for far more - and far less - than waxpancake had to pay.
posted by schoolgirl report at 11:38 AM on June 23, 2011 [5 favorites]


Frankly, for all some of you know about law ...

What an elitist attitude. It's important that lay people understand what is and isn't fair use. It should be understandable!
posted by sudama at 11:41 AM on June 23, 2011 [3 favorites]


I wonder how this thread would have gone if we were talking about Jay Maisel stealing an illustration from some indie illustrator (sorry "pixel artist") to make a photo that was used commercially.

Really the reoccuring theme in these internet copyright outrage scandals is that people seem to think photographs have no value.
posted by bradbane at 11:41 AM on June 23, 2011 [1 favorite]


Doing without asking permission based on fair use in this case was a huge leap of faith that the key players involved would all have similar artistic boundaries. The project is obviously a labor of love for Andy Baio and he made the artistic choice to appropriate Jay Maisel's image as a parody/tribute. It appears that Baio assumed that as a fellow artist Maisel would appreciate his work and intentions and not be offended (or litigious). But Maisel has fought to protect that image for 60 years. I’m sure he’s had to go after people outright stealing the image for unlicensed t-shirts, prints, mugs, etc as well as pursuing the label and licensees over getting compensated for authorized use of his iconic artwork. For someone that has spent a lifetime making sure that he's being properly compensated for work and protecting it's value it might be hard to even understand how Baio's use is any different from the other people that have stolen from him in the past.
posted by Slack-a-gogo at 11:43 AM on June 23, 2011 [3 favorites]


I wonder how this thread would have gone if we were talking about Jay Maisel stealing an illustration from some indie illustrator (sorry "pixel artist") to make a photo that was used commercially.

Thread is now about Jay Maisel stealing mosaic "pixel" art. (This one only costs $1200 per print.)
posted by Threeway Handshake at 11:43 AM on June 23, 2011 [6 favorites]


I tend to think that Baio's appropriation here is something that should be allowed but isn't, and that it's better an example of the perverse incentives enshrined within copyright law than a clear-cut argument for or against fair use.

So I'd come down on the side of saying that no, an artist doesn't have the moral right (even if he has the legal right) to prevent reinterpretations of their work in contexts such as these — especially ironic given the agnostic licensing procedures of jazz, a supremely re-interpretive medium (and Christ, Miles Davis didn't ever acknowledge how much of that album Bill Evans wrote — his estate had to cop to it in 2002).
posted by klangklangston at 11:44 AM on June 23, 2011 [5 favorites]


For someone that has spent a lifetime making sure that he's being properly compensated for work and protecting it's value it might be hard to even understand how Baio's use is any different from the other people that have stolen from him in the past.

This is an excellent point. Although waxy, chiptunes, and 8-bit remakes are favorites of many internet people, I doubt Maisel realizes they exist or even cares. Again, not sticking up for Maisel, but pleased to see this nuance of perspective in a debate about intellectual property.
posted by proj at 11:45 AM on June 23, 2011 [1 favorite]


Thread is now about Jay Maisel stealing mosaic "pixel" art. (This one only costs $1200 per print.)


Put a bird on it!
posted by defenestration at 11:46 AM on June 23, 2011 [6 favorites]


Really the reoccuring theme in these internet copyright outrage scandals is that people seem to think photographs have no value.

It is the art closest to purely mechanical reproduction. In fact, sometimes it is just that. Plenty of 'iconic' photos were happy accidents.

I suspect this is why photogs tend to be such douches over copyright.
posted by ChurchHatesTucker at 11:47 AM on June 23, 2011 [2 favorites]


Really the reoccuring theme in these internet copyright outrage scandals is that people seem to think photographs have no value.

I haven't actually seen the previous threads about copyrighted violations of photos. Or anyone suggesting that photos have no value. What I'm seeing here is that people don't think the pixel art cover *is* Maisel's photo, it's just based on it.
posted by Hoopo at 11:47 AM on June 23, 2011 [1 favorite]


copyright violations. Sorry.
posted by Hoopo at 11:48 AM on June 23, 2011


Maisel is also 80, and probably has no pension or retirement funds since he was a working artist. He has no choice other than to sue people to support himself in old age. So this is clearly America's fault and would not have happened in Canada.
posted by smackfu at 11:48 AM on June 23, 2011 [1 favorite]


What klang said. Rather than haggling about the intricacies of fair use within existing copyright law, I think this is yet another case that points up the perniciousness of constantly increasing the rights of "private ownership" of intellectual property against the interests of the commons.

I absolutely support artists' right to own and control and profit from their work, to a point. But if you are lucky and talented enough to create what becomes universally acknowledged as an iconic image (or other piece of art, music, etc.), then at some point, it starts belonging to all of us, or should.

This image is 52 years old. If Jay Maisel loves it, he should set it free, for fuck's sake.
posted by FelliniBlank at 11:48 AM on June 23, 2011 [3 favorites]


Maisel is also 80, and probably has no pension or retirement funds since he was a working artist.

Copyright is supposed to promote the useful arts. It wasn't intended to be welfare for artists (and their grandkids.)
posted by ChurchHatesTucker at 11:51 AM on June 23, 2011 [2 favorites]


ChurchHatesTucker, check your sarcasm detector.
posted by proj at 11:52 AM on June 23, 2011


It is the art closest to purely mechanical reproduction. In fact, sometimes it is just that. Plenty of 'iconic' photos were happy accidents.

That's funny, because I would call drawing from a photograph so closely a pretty mechanical endeavor.
posted by bradbane at 11:52 AM on June 23, 2011


It's important that lay people understand what is and isn't fair use. It should be understandable!

From your lips to Nimmer's ears!
posted by schoolgirl report at 11:54 AM on June 23, 2011


I've already made a few derivative works of his photographs already, but I'm a little too chicken shit to put them on the internet.
posted by The Devil Tesla at 11:56 AM on June 23, 2011


smackfu: "Maisel is also 80, and probably has no pension or retirement funds since he was a working artist. He has no choice other than to sue people to support himself in old age. "

He could sell his $30 million dollar mansion in Manhattan and assuming 5% interest, live on the paltry sum of $1.5 per year for the rest of his life. So there's that.
posted by mullingitover at 11:57 AM on June 23, 2011


ChurchHatesTucker, check your sarcasm detector.

Dang thing. *smacks side*

That's funny, because I would call drawing from a photograph so closely a pretty mechanical endeavor.

Try it. It's more complicated than it looks. It's entirely possible that more creative choices went into the 8-bit art than the original photo.
posted by ChurchHatesTucker at 11:57 AM on June 23, 2011 [3 favorites]


(1.5 (pinky to lips) million)
posted by mullingitover at 11:57 AM on June 23, 2011 [2 favorites]


It's important that lay people understand what is and isn't fair use. It should be understandable!

I absolutely agree. I think the key thing to understand here is that there are things that are clearly fair use, things that clearly are not fair use, and things which you won't be able to be sure about until you get it before a judge. If you have things in this middle area, you might want to think a little closer about schoolgirl report's advice:
As a copyright attorney who frequently has clients ask if this or that is a fair use, I always tell them the same thing - if we need to definitively answer that question, it's because you've been sued. If you're not willing to bear the costs - financial and emotional - of getting the answer, then let's avoid the need to ask.
posted by grouse at 11:57 AM on June 23, 2011 [1 favorite]


Make no mistake, bonehead, this approach works very well when the plaintiff isn't wealthy and the infringer is.

Maybe. I think it would be hard to argue that justice was well served in this case though. I can't speak about the matter of fact, but plainly reasonable people disagree on this. The way our system(s) work, this should have been put to a judge. Instead, it was a cost-benefit decision based on costs, not the merits of the situation. In the extremes, this turns use of the law, specifically copyright law, into a rent seeking activity rather than as a remedy for injury.

Is that what happened here? I can't tell, but I can't discount that possibility either.
posted by bonehead at 12:02 PM on June 23, 2011 [2 favorites]


You know, a few years back I was farting around on Youtube and just randomly started searching for Ramones videos, when I discovered, much to my delight, a whole treasure trove of fan-made videos for Ramones songs, many of them animated. Some of them were actually pretty elaborate -- like the claymation video for Judy is a Punk. Years later, a whole bunch of them are gone, and I'm like, fuck you, Music Industry, fuck you. You fucking suck. You destroyed art. Someone else made something really cool, and you deprived us of it because of your dinosaur fucking business model. Fuck you. Die in a fire. I mean, is this the world we want to live in? A fucking grandparentocracy where artists are prevented from reinterpreting their influences -- in other words, doing what every artist who has ever lived has done? Fucking fuck. There's got to be a better way.
posted by Afroblanco at 12:05 PM on June 23, 2011 [13 favorites]


from the article:
And it's worth noting that trying to license the image would have been moot. When asked how much he would've charged for a license, Maisel told his lawyer that he would never have granted a license for the pixel art.


That's not really an excuse though. It's either fair use or not. Whether the original artist would have licensed it isn't germane to that discussion. If it's fair use, great. If it's not fair use, and the original artist doesn't grant you a license, then you don't use it.
posted by kmz at 12:10 PM on June 23, 2011


"I wonder how this thread would have gone if we were talking about Jay Maisel stealing an illustration from some indie illustrator (sorry "pixel artist") to make a photo that was used commercially.

Really the reoccuring theme in these internet copyright outrage scandals is that people seem to think photographs have no value.
"

That's nonsense, and the sneering "pixel artist" bit is beneath you.

Of course photographs have value, but it's hard to argue that there's less going on in the pixel art reproduction than in Sherrie Levine's "After Walker Evans." How much value do Levine's works have? I've been told that I'm not allowed to photograph them in museums, something I find fairly ironic.
posted by klangklangston at 12:17 PM on June 23, 2011 [2 favorites]


I personally think it was an edge case as to fair use" or not. I could be convinced either way. Since it may not be, I don't think Maisel is ipso facto a douche for suing. The issue is the insane statutory damages. If Maisel had only been able to sue for actual damages, I'd view this case very differently, but as it is, he's a douche, using an unjust possible penalty as a club to deny someone their day in court.
posted by tyllwin at 12:17 PM on June 23, 2011 [1 favorite]


I can't argue that the pixel art photo isn't derivative.

But wouldn't a consistent application of such a standard require that we consider un-staged photos derivative of reality, rather than original works?
posted by Western Infidels at 12:21 PM on June 23, 2011


treepour, when you refer to doing things which are legally justifiable but are still mind-bogglingly petty, etc., and you reference the "inevitable 'he had every right to do this' sort of arguments," are you referring to Baio's legally-justifiable appropriation of Meisel's iconic photograph against the wishes of the artist, or are you referring to Meisel's legally-justifiable attempt to enforce his legal rights in his artwork? Who are you calling a douchebag here?

Sorry for my lack of clarity. I am referring to Meisel's legally-justifiable attempt to enforce his legal rights in his artwork.
posted by treepour at 12:22 PM on June 23, 2011


klangklangston: Of course photographs have value, but it's hard to argue that there's less going on in the pixel art reproduction than in Sherrie Levine's "After Walker Evans." How much value do Levine's works have? I've been told that I'm not allowed to photograph them in museums, something I find fairly ironic.
Or consider the Sam Abell / Richard Prince thing, where Prince actually sold his "work" for millions.

The pixel art in question here is a lot less like the original photo than the Richard Prince pictures are.
posted by Western Infidels at 12:26 PM on June 23, 2011 [1 favorite]


The way our system(s) work, this should have been put to a judge.

No. That's not the way our system works. The United States civil judicial system is in place for the purpose of resolving disputes. No dispute that can be resolved between the parties before trial should ever go to trial.
posted by The World Famous at 12:26 PM on June 23, 2011 [2 favorites]


I am far more amused than necessary by the fact that Meisel's portfolio contains a photograph called 'Boy and Intertube'. It's a photo of the intertubes!
posted by oulipian at 12:30 PM on June 23, 2011


From rhizome, a letter from Campbell's Soup to Andy Warhol regarding his appropriation of their label
posted by stagewhisper at 12:31 PM on June 23, 2011 [8 favorites]


That's funny, because I would call drawing from a photograph so closely a pretty mechanical endeavor.

It's not. There are innumerable technical, stylistic and creative decisions you have to make when drawing something by hand beyond composition.
posted by Hoopo at 12:36 PM on June 23, 2011


The United States civil judicial system is in place for the purpose of resolving disputes.

No arguments from me. I am arguing that the cost insentives in place make many of those resolutions perverse. Copyright law in particular, with the huge gray areas that it has, is liable to abuse . Were its exceptions better defined, a non-judicial settlement rooted in law might have been possible. That isn't what happened here. Instead, there was a practical settlement based on a perverse procedural cost structure.
posted by bonehead at 12:46 PM on June 23, 2011


I am arguing that the cost insentives in place make many of those resolutions perverse.

I agree wholeheartedly.
posted by The World Famous at 12:48 PM on June 23, 2011


Hi, I'm the guy who drew the cover.

I drew the image by hand (mouse) one afternoon after Andy mentioned the project. It's intended to be viewed at CD-cover size, where the pixels appear much larger than in these thumbnails.

Perhaps I was too close to the creation process, but copyright violation never crossed my mind; I was crushed when Andy told me about the suit. He's a stand-up chap and took all responsibility, but I'll never shake the thought that I cost a nice guy $32,000.

I AM SO SORRY WAXPANCAKE
posted by SnackAdmiral at 12:54 PM on June 23, 2011 [50 favorites]


Hey, Andy Baio responded to the "if you licensed the music, why not the art, too?" question in comments here. Basically, it comes down to, "there's a standard licensing scheme for covers, so fair use doesn't apply."

This isn't true at all. Both cases feature the copying of somebody else's original expression. The fact that there's a statutory licensing scheme for one but not the other is irrelevant. If you copied the song without licensing, you can be sued for copyright infringement, same as with the photograph. And in either case, you could raise a fair use defense. Think about it - isn't it odd that you would have to pay to use somebody else's song, but not to use somebody else's photograph? I mean, if the candy store puts a price tag on its Snickers, but not its M&Ms, do you assume the latter are free?

On a technical note - this post, including its title, says that Maisel sued Baio, which doesn't seem to be true. According to the account, Maisel's attorneys sent Baio a nastygram, the two parties negotiated and settled with no court filing. Boingboing makes the same mistake.
posted by factory123 at 12:56 PM on June 23, 2011 [1 favorite]


THIS IS ALL YOUR FAULT
posted by waxpancake at 12:57 PM on June 23, 2011 [15 favorites]


It's not. There are innumerable technical, stylistic and creative decisions you have to make when drawing something by hand beyond composition.

Kind of like photography!
posted by bradbane at 12:58 PM on June 23, 2011 [1 favorite]


factory123: Correct, there was never an actual lawsuit. I got the demand letter, immediately removed all copies of the artwork, and let them know. I was hoping that would be the end of it, but they wanted compensation, so I had to find a lawyer to handle the negotiations.
posted by waxpancake at 1:00 PM on June 23, 2011 [2 favorites]


"Or consider the Sam Abell / Richard Prince thing, where Prince actually sold his "work" for millions."

Joy Garnett wrote a pretty good overview on artnet of the Prince/Abell case. I'd say it was a strike against Baio's case (although I do believe he should have the legal right to do as he did) that the album cover art could be considered mass-distributed even at a small scale- remember that copyright laws were originally drafted to address issues authorship during an era of relatively easy access to previously unimaginably mass production.

Individual artworks are not mass produced objects, so the fact that copyright laws have been broadened to cover singular artworks at all is kind of ludicrous. Homage to, or parodies of, famous iconic images in no way detract from the original creator of the source image's ability to continue to profit directly from the their image. If nothing else it helps bring the original image back into the current marketplace of ideas, often inheriting even more cultural (and probably commercial) value by virtue of being referred to.
posted by stagewhisper at 1:01 PM on June 23, 2011


Kind of like photography!

Have I ever implied otherwise? I realize you're arguing with someone making the same point about photography, but all you're pointing out here is that you're both wrong.
posted by Hoopo at 1:03 PM on June 23, 2011


I don't think it was mentioned yet, but Maisel's law firm actually has a quotation from him on their website:
“I began monitoring my photography licenses for copyright infringement in August 2005 at the urging of my friend, former professional photographer and now full-time copyright litigator, Maurice Harmon of Harmon & Seidman LLC, the law firm he established with his partner, Christopher Seidman. These people have done amazing work for me where other lawyers have been ineffective. They are passionate about protecting the rights of artists and writers. They know photography; they know copyright law; and they know how to litigate in federal court.

Harmon, Seidman and their associates represent clients across the country and overseas. They limit their practice exclusively to copyright infringement, always representing the copyright holders and never the infringers. They earn their fee by charging a percentage of what they obtain for you; no money for you, no fee for them. I highly recommend them.”

World-renowned photographer, Jay Maisel
Douchebags.
posted by mike_bling at 1:06 PM on June 23, 2011 [3 favorites]


Well I don't have time to run through all the prior arguments but IMHO this is exactly what copyright is for. Maisel is an individual artist, not a big corporation like Corbis. Waxy knew he had to license rights. But he failed with the visual rights, and then it's standard procedure to sue the guy for damages at the maximum fees your rights could reasonably uphold. Then they settle somewhere under that.

I think Waxy undermines his own argument with one of his arguments:

Works that are published and factual lean towards fair use, works that are unpublished and creative towards infringement. While Maisel's photograph is creative, it's also primarily documentary in nature and it was published long before my illustration was created.

No, "factual" leans towards public databases like phone books. But factual doesn't mean "mere" documentary work. And that's exactly why Maisel has image rights. He went to the trouble to actually be there to take the picture and document Miles Davis that moment back in 1959 (or whenever). And that's why people want the picture. There's no amount of money in the world that can take you back to 1959 so you can take your own pic of Miles Davis. Maisel documented that moment with photos, Waxy can only copy Maisel's work. That's why they made this original audio recording, to document a musical moment back in 1959. Why are the image rights any less valuable than the audio rights?
posted by charlie don't surf at 1:09 PM on June 23, 2011 [4 favorites]


Maisel documented that moment with photos, Waxy can only copy Maisel's work.

Waxy (well, SnackAdmiral) created a new work that referenced Maisel's to document this moment.
posted by ChurchHatesTucker at 1:23 PM on June 23, 2011 [5 favorites]


It's simply wrong to equate image rights with audio rights as if they're the same thing. The legal precedents are entirely different. There is a rich vein of cases throughout the past century in which transformative use was demonstrated for visual arts. For whatever reason (read: music interests are powerful), transformative use of songs is less likely to be ruled fair use. It may not be entirely consistent, but legal precedent rarely is.

Furthermore, using the exact same notes as the song you're covering = actual copying of those copyrighted notes. Licensing is therefore required unless you're using this for very specific purposes. Making a piece of art based on, but not a copy of a photograph is not quite the same. It sounds like a small nuance, but the legal ramifications are actually different.
posted by naju at 1:27 PM on June 23, 2011 [2 favorites]


And just for fun, here's a link to Andy Warhol's White Burning Car II, which after all, is just a straight painting of a famous photograph with some minimal creativity added.
posted by naju at 1:31 PM on June 23, 2011


Also, not questioning the wisdom of waxpancake's legal reps, but personally I would've waited for an actual lawsuit, and maybe tried a motion for summary judgment before settling for so much money. A threat to sue is a threat, nothing more, until the real stakes start showing up.
posted by naju at 1:36 PM on June 23, 2011


Furthermore, using the exact same notes as the song you're covering = actual copying of those copyrighted notes. Licensing is therefore required unless you're using this for very specific purposes. Making a piece of art based on, but not a copy of a photograph is not quite the same. It sounds like a small nuance, but the legal ramifications are actually different.

With respect, this shows a pretty radical misunderstanding of what making a cover version consists of, and the degree to which copyright claims in music extend to pieces which are 'based on but not a copy of' the work in question. Googling 'my sweet lord' or 'bittersweet symphony' should yield information.
posted by unSane at 1:38 PM on June 23, 2011


Is this image fair use?
posted by ryoshu at 1:42 PM on June 23, 2011


Is this image fair use?

Yes. Unlike the Kind of Bloop image, it is obvious parody.
posted by eyeballkid at 1:48 PM on June 23, 2011


unSane - my point is merely that, say, 1) an actual copy of a song's notes (as I'm assuming the Kind of Bloop covers are sequenced to be) will have different legal considerations and precedent than a song inspired by or based on a song, but not containing the exact same notes (not making any judgment about their copyrightability, but it's different at least), and 2) likewise for one-to-one art reproductions of a photograph vs. artwork inspired by or based on a photograph. I don't see how this isn't clear.
posted by naju at 1:50 PM on June 23, 2011


unSane, you are taking an awfully hard line on copyright here, particularly for photos and music. I'm wondering how that squares with your using a copyrighted illustration by Zina Saunders as your twitter avatar. To clarify- I don't think you should be sued for doing so, but surely this is an example of a grey zone as well?
posted by stagewhisper at 1:52 PM on June 23, 2011


The U.S. Copyright Act of 1909 allows anyone the right to record a cover song, as long as you pay a standard mechanical license, which I happily did; the "fair use" doctrine simply doesn't apply at all. I didn't try to license the photo, because I never believed (and still don't believe) that I needed to.

See, this argument is what gets me - you seem to be saying that there's a standard mechanical license option for making a digital re-creation of the music, and you happily paid it. But because there is no standard mechanical license option for making a digital re-creation of a photograph, "fair use" applies? If there was no standard mechanical license option for the music side of things, would "fair use" also apply there? It really sounds (to me) like you're making the argument for "fair use" in either case, but that because licensing is cheap and easy for the music side of things, you think that "fair use" doesn't apply. IMO, if "fair use" applies to the photograph, it should apply to the music as well.
posted by antifuse at 1:53 PM on June 23, 2011


Oh, and on failing to preview (boo me) - naju, my understanding is that the Kind of Bloop covers required just as much creative interpretation as the photographic reproduction did, not just a note-for-note re-creation.
posted by antifuse at 1:54 PM on June 23, 2011


bradbane: "Kind of like photography!"

bradbane are you a commercial photographer?
posted by boo_radley at 1:57 PM on June 23, 2011


I'm wondering how that squares with your using a copyrighted illustration by Zina Saunders as your twitter avatar

Talk to my lawyers.
posted by unSane at 2:02 PM on June 23, 2011


(About the stalking thing also.)
posted by unSane at 2:03 PM on June 23, 2011


antifuse: "IMO, if "fair use" applies to the photograph, it should apply to the music as well."

"IMO if a standardized method of reuse of musical assets or content exists, one ought to apply to photographs as well". Is that equitable? Why or why not?
posted by boo_radley at 2:06 PM on June 23, 2011


ChrisHatesTucker: Whenever I read or hear someone say something as ridiculous as your statement about photography and photographers I offer them to take my camera and make the same images I do. Cause you know, it's just pushing a button. They usually hand it back after realizing they can't figure out how to turn the camera on. Then they complain about how heavy it is.

My earlier comment about cheapening an image. He could go ahead and license it to anyone that wants it but the value of the image would change. The licensing rates would drop and probably be more in line with the industry standard. Instead he has opted to hold onto the image and license at a higher rate. If he and his lawyers think someone is stealing the image then all the more reason to go after them.
posted by WickedPissah at 2:07 PM on June 23, 2011


It really sounds (to me) like you're making the argument for "fair use" in either case, but that because licensing is cheap and easy for the music side of things, you think that "fair use" doesn't apply. IMO, if "fair use" applies to the photograph, it should apply to the music as well.

"Fair use" is a defense against a copyright infringement claim. If you reach an agreement with a copyright holder to license a work, it's pretty safe to assume that you won't be sued as long as you follow the terms of the agreement, so fair use is not a big concern. If you use a work copyrighted work without entering into any agreement with the copyright holder, then that's when fair use comes into play. But as this case illustrates, it's foolish to rely on fair use protecting you in a copyright infringement case because you will most likely settle out of court before any judgment regarding fair use is made.
posted by burnmp3s at 2:12 PM on June 23, 2011 [1 favorite]


Talk to my lawyers.

Sounded like a fair question to me, perhaps one you don't have a ready answer to.
posted by Horace Rumpole at 2:12 PM on June 23, 2011 [2 favorites]


Instead he has opted to hold onto the image and license at a higher rate

His rate is zero dollars, since he isn't licensing it.
posted by Dark Messiah at 2:13 PM on June 23, 2011


Did Maisel get a license from the trumpet manufacturer to use the trumpet's likeness in a commercial work? I wonder how much in damages the manufacturer could recoup?
posted by ryoshu at 2:13 PM on June 23, 2011 [2 favorites]


"IMO if a standardized method of reuse of musical assets or content exists, one ought to apply to photographs as well". Is that equitable? Why or why not?

The only difference really is that the 1909 copyright act gives you the right to make a cover version for a fee. It doesn't say what that fee is. In most cases it's covered by mechanical licence, which is mostly administered by the Harry Fox agency. For licences which fall outside this, a 'compulsory licence' applies and the fee is set by a panel of three judges.

The only real difference from photographs is that you are allowed by statute to make a derivative work which doesn't mess with the lyrics, main melody or fundamental character of the work.

It's generally no harder to licence a photograph than to obtain mechanical rights for music. The only difference is that the rights holder of the photo can say no, just as the rights holder of the music can say no if you want to fuck with it too much.
posted by unSane at 2:16 PM on June 23, 2011


(This whole thing makes me even more disappointed that Andy/waxpancake didn't do a vinyl version as part of his Kickstarter thing.)
posted by box at 2:16 PM on June 23, 2011


Interesting, I think Maisel just took down his Facebook page. It's no longer appearing for me. Anyone else?
posted by fremen at 2:23 PM on June 23, 2011


bradbane are you a commercial photographer?

I am, please don't hold that against me :).

"IMO if a standardized method of reuse of musical assets or content exists, one ought to apply to photographs as well". Is that equitable? Why or why not?

Who would collect and distribute these royalties and track the licenses? Who would set the rates and decide what projects are appropriate and which aren't? The reason this exists for musicians is because the major labels have used their historical monopoly to set that system up. Photographers have no central body to do this, even legendary old school guys like Jay Maisel are basically sole proprietors. In fact, when organizations like ASMP have tried to come up with guidelines for licensing rates they have been threatened with antitrust action.

Of course there are stock agencies like Getty who will take photographer's images and then license them to whoever wants for a small large percentage of the fee. But otherwise you just contact the photographer and work it out with them. They might say no though, because the whole point of copyright law is to give artists that right.
posted by bradbane at 2:26 PM on June 23, 2011


There's even more on Prince here.

"No, "factual" leans towards public databases like phone books. But factual doesn't mean "mere" documentary work. And that's exactly why Maisel has image rights. He went to the trouble to actually be there to take the picture and document Miles Davis that moment back in 1959 (or whenever). And that's why people want the picture. There's no amount of money in the world that can take you back to 1959 so you can take your own pic of Miles Davis. Maisel documented that moment with photos, Waxy can only copy Maisel's work. That's why they made this original audio recording, to document a musical moment back in 1959. Why are the image rights any less valuable than the audio rights?"

This is kind of an insane misrepresentation both of SnackAdmiral's work and of what "factual" means.

News photos are often held to be "factual," ergo looser rights arrangements than fine art photographs regarding reproduction. (Which obviously doesn't mean that they're wide open all the time, or any such nonsense, just that you've got a stronger fair use case when you reproduce them, especially for commentary or education.)
posted by klangklangston at 2:26 PM on June 23, 2011


Dark Messiah: I didn't say he was in this case. I was explaining my use of the word cheapens in my earlier post in the context of licensing an iconic image. The more an image is sold and used the less value it has.

ryoshu: It's a photograph. Not a knockoff copy of the trumpet. Maybe you can play it if you printed it and rolled it into a tube or something but I don't think that qualifies.
posted by WickedPissah at 2:26 PM on June 23, 2011


Yeah, Maisel's Facebook page is unreachable. I was looking forward to reading and liking Waxy's comment.
posted by sudama at 2:28 PM on June 23, 2011


There's a potential solution to which we are not dedicating adequate time.

That solution is simply to blind and deafen every last living person on earth.
posted by This, of course, alludes to you at 2:28 PM on June 23, 2011 [1 favorite]


I think it's completely disingenuous to debate the legality of the fair use defense, since I think the key story here is that the copyright owner was able to bully Andy into paying a bribe to make this case go away.

I think it's outrageous that Andy had to pay above a year's worth of median household income because he deemed this cheaper than using the court to do the job it was made to do.

I think it's even more outrageous that the average copyright lawsuit costs $300k, thus making it nearly 10 years worth of median household income in the US.

All these arguments -- licensing, fair use, transformative vs. derivative, etc -- are meant to be made in court, in front of people elected/selected to pass a judgment. As it happened, they were made between two parties -- one of which threatens the other with potential damages in the millions, or the prospect of paying 10x the settlement fee to potentially prove lack of culpability. In my opinion, the correct name for this behavior is extortion.

A judicial system without equity of access is nearly as bad as no judicial system at all. We go to great lengths to elect deserving judges; we spend a lot of effort to draw everyone into the jury pool to try to ensure a fair trial. But then we allow costs to control who can defend themselves in court: apparently, this is an option open to the very rich (who can afford it) and to the very poor (who have nothing to lose).

For the rest of us -- people with mortgages and property that can be taken away, but yet not enough funds to dump into proving ourselves right willy-nilly -- the legal system is effectively inaccessible in a case like this. This is the very reason the music industry was able to get away with demanding that people pay for copyright infringement, and that only one case in many years reached trial.

It upsets me that there's no easy way to fix this in our society.
posted by haykinson at 2:32 PM on June 23, 2011 [30 favorites]


It's a photograph. Not a knockoff copy of the trumpet. Maybe you can play it if you printed it and rolled it into a tube or something but I don't think that qualifies.

If the design of the trumpet is copyrighted the photograph could be considered a derivative work. The lawyers should have fun figuring it out.
posted by ryoshu at 2:34 PM on June 23, 2011 [1 favorite]


Hopefully this will prevent him from making horrible music in the future.
posted by milarepa at 2:36 PM on June 23, 2011


stagewhisper: unSane, you are taking an awfully hard line on copyright here, particularly for photos and music. I'm wondering how that squares with your using a copyrighted illustration by Zina Saunders as your twitter avatar.
His Flickr avatar is currently a simplified, paint-ified version of this well-known photograph, in much the same vein as the pixel-art version of the Maisel photo that started this whole brouhaha.
posted by Western Infidels at 2:38 PM on June 23, 2011 [4 favorites]


(About the stalking thing also.)

Oh, I thought members linked to their twitter feeds on their profile pages because they wanted to share that info with other members. My bad.
posted by stagewhisper at 2:43 PM on June 23, 2011


Sharing = playing gotcha?
posted by smackfu at 2:47 PM on June 23, 2011


Because they want to share the info 'I have a Twitter account,' not because they wish their every utterance to be mined for layers of meaning and accusations of hypocrisy.
posted by box at 2:47 PM on June 23, 2011


'Gotcha' has always seemed like the worst form of argument. Just because someone violates their own position doesn't mean that their logic is therefore invalid. Address their position & their statements, not their actions.
posted by shakespeherian at 2:51 PM on June 23, 2011 [1 favorite]


Because they want to share the info 'I have a Twitter account,' not because they wish their every utterance to be mined for layers of meaning and accusations of hypocrisy.

Then using the Internet's equivalent of shouting down a crowded hallway as a mode of communicaton -- and in fact advertising directions to said hallway -- probably not the best way to be "discrete". You don't need to be a congressman to get this.
posted by Dark Messiah at 2:54 PM on June 23, 2011


Also, your Twitter avatar appears on your profile page.
posted by Dark Messiah at 2:56 PM on June 23, 2011


Whenever I read or hear someone say something as ridiculous as your statement about photography and photographers I offer them to take my camera and make the same images I do.

Depending on the images (and camera) in question, I just might be able to.

You should try doing some pixel art. It's hard, too.

If the design of the trumpet is copyrighted the photograph could be considered a derivative work. The lawyers should have fun figuring it out.

This is the problem documentary filmmakers have with clearances, but let's leave trademarks aside for the time being.

'Gotcha' has always seemed like the worst form of argument.

Sometimes yes, sometimes no. It works well in copyright arguments because most people have no idea how much they're transgressing on a daily basis.
posted by ChurchHatesTucker at 2:57 PM on June 23, 2011


Seriously, guys? My twitter avatar? That's your best shot?
posted by unSane at 2:57 PM on June 23, 2011 [1 favorite]


Sorry, I took offense at the "stalking" comment. I was trying to explain why this is such a dangerous precedent to unSane in a way that I thought he could directly relate to- any of us can be making what we think are harmless choices when we quote or display images that we come across in mass media - but those choices could result in lawsuits that we are unprepared financially and/or emotionally to fight and that would drain our resources even if we had a decent case (as Baio thought he did). It's not just artists that are negatively affected, it's almost anyone who innocently generates or posts any kind of content based on found imagery, cultural memes, branding and the like, and puts it out in public.
posted by stagewhisper at 2:58 PM on June 23, 2011 [2 favorites]


Seriously, guys? My twitter avatar? That's your best shot?

It's an observation. I don't even care but I'm kind of wondering how you can defend the position; if only as a thought experiment.
posted by Dark Messiah at 2:59 PM on June 23, 2011


I'm not defending my position. If the rights holders feel they have a case to sue me for non-commercial use of this kind (which is obviously a fan's response to both images and the kind of thing that billions of people do every day) then they should indeed talk to my lawyers.
posted by unSane at 3:02 PM on June 23, 2011


It really does not make sense to compare the licensing of music for the purposes of making a cover and licensing a photograph. This has nothing to do with photographs being less worthy of protection and everything to do what what exactly is copyrighted and licensed. Music has an abstract representation (melody, lyrics, etc) which can be licensed. There is no analogous scheme for photographs. (In essence, a photograph is a performance, not a song.)
posted by Nothing at 3:02 PM on June 23, 2011


Does the non-profit bit matter in the least, especially since it seems like the actual artists did make a profit?
posted by smackfu at 3:05 PM on June 23, 2011


Music has an abstract representation (melody, lyrics, etc) which can be licensed. There is no analogous scheme for photographs.

How about, "looks kind of like it if you squint?" Because that seems to be the issue here.
posted by ChurchHatesTucker at 3:07 PM on June 23, 2011


I don't think jay made this sculpture in one of his photographs, did he? Is that fair use?
posted by Freen at 3:08 PM on June 23, 2011


Does the non-profit bit matter in the least, especially since it seems like the actual artists did make a profit?

Well, if you had enough time and money to take fight the charges in court and felt like gambling, sure it probably would matter, at least a little. But there's no guarantees. Which is one of the main problems this post addressed in the first place.
posted by stagewhisper at 3:10 PM on June 23, 2011


ChristHatesTucker: I'm gonna take that as a no. And thanks for admitting that photography isn't easy but I never said pixel art was easy.

Nothing: Every single stock photography agency in the history of the world would disagree with you and most professional photographers.

Also, can one of the sleuths on here show me where it is that unsane is using someone else's image to market and sell a product in exchange for money?
posted by WickedPissah at 3:10 PM on June 23, 2011


too tired to satirize: milarepa probably has some pretentious opinions and great things to say about those damn kids/nerds, what a shame
posted by This, of course, alludes to you at 3:11 PM on June 23, 2011


His website is also using a css reset lifted from Eric Meyer. Eric doesn't seem to have mentioned any specific license, though at the bottom of the blog he says that all rights are reserved... I wonder what Jay Maisel thinks about this.
posted by Freen at 3:14 PM on June 23, 2011


By "His" I meant Jay Maisel, for what it's worth.
posted by Freen at 3:15 PM on June 23, 2011


I don't think jay made this sculpture in one of his photographs, did he? Is that fair use?

You can make whatever photograph you want, just like you can make illustrations of famous photographs all you want. Whether or not it's infringement depends on what it's used for.


If Baio had redrawn the Maisel photo and posted it on his blog or used it as a Twitter icon we wouldn't be having this discussion. The infringement comes from using it to sell his own commercial product without getting permission first.
posted by bradbane at 3:18 PM on June 23, 2011 [3 favorites]


Of course there are stock agencies like Getty who will take photographer's images and then license them to whoever wants for a small large percentage of the fee.

The actual image wasn't used though. The pixel art is obviously derivative of Maisel's picture, but there's an identifiable original contribution by the pixel artist here. It visually expresses that the music is going to be nintendo-ed out covers of Miles Davis' Kind of Blue. Without these original contributions of the pixel artist to Maisel's composition, it wouldn't even make much sense to use Maisel's image at all.
posted by Hoopo at 3:21 PM on June 23, 2011 [1 favorite]


It's too bad Jay Maisel appears on the blue in this context. He's a pretty remarkable photographer (and from the one time I met him, a seemingly friendly artist). Like, GuyZero, I wonder if Maisel was even aware of the lawsuit (at least at the onset). Given his fame and the sheer number of copyrighted material he produces, I highly doubt he spends much time combing the Web for violations.

I also wonder if waxpancake simply overlooked the need for attaining a license for the cover. I can imagine a scenario where you do the work to get permission for all the songs without thinking once about the fact that a photograph on the cover (which seems basically like a default Miles Davis photo at this point) would have similar copyright concerns. If you're still reading Andy, did the thought even cross your mind when putting Kind of Bloop together?
posted by panoptican at 3:25 PM on June 23, 2011


bradbane: I imagine he has sold at least one print of that photo.

Additionally, what then about Jay stealing someone else's code and running it on his commercial website? It's not even remotely derivative, that's wholesale theft.
posted by Freen at 3:27 PM on June 23, 2011 [1 favorite]


Freen: You know for a fact that the code wasn't paid for? Also you know for a fact that Jay built the site?
posted by WickedPissah at 3:29 PM on June 23, 2011


Well, some of eric meyer's resets are explicitly in the public domain, such as this and this. The specific code used on Jay's site is not specifically unlicensed. Eric Meyer would have to chime in on this.

I do not know if the code was paid for or not. Whether or not Jay built the site is irrelevant, he is currently using it in a commercial sense. Andy Baio didn't paint the picture in question.
posted by Freen at 3:32 PM on June 23, 2011


This is just sillyness now.
posted by smackfu at 3:34 PM on June 23, 2011 [5 favorites]


All this legal squabbling is missing the point.

Maisel could have created some real Pixar-y goodwill by reacting to this situation in a compassionate manner. Instead we're heading for the point where, if this discussion rumbles on blogs for another day or two, Maisel's reputation - online at least - will be as the pixel art douchebag.

Rather than the guy with the $30m house.
posted by fire&wings at 3:37 PM on June 23, 2011 [1 favorite]


Maisel settled the case for $32k a year ago, he probably forgot all about it.
posted by smackfu at 3:38 PM on June 23, 2011


Or if he does remember, it's probably "oh yeah, that record producer who ripped off my photo for a cover album."
posted by smackfu at 3:39 PM on June 23, 2011 [3 favorites]


"You can make whatever photograph you want, just like you can make illustrations of famous photographs all you want. Whether or not it's infringement depends on what it's used for."

Nope. Not so. The copyright holder may have exclusive rights. If you are using it for anything other than what you have been given rights to, and you are not able to prove your use falls under Fair Use (or don't have the resources to attempt to do so) you are SOL.

http://en.wikipedia.org/wiki/Copyright_infringement
posted by stagewhisper at 3:41 PM on June 23, 2011 [2 favorites]


All this legal squabbling is missing the point. Maisel could have created some real Pixar-y goodwill by reacting to this situation in a compassionate manner. Instead we're heading for the point where, if this discussion rumbles on blogs for another day or two, Maisel's reputation - online at least - will beasthepixel art douchebag. Rather than the guy with the $30m house.

Seems like his reputation appears to be at least partly becoming "the photographer who protected his work." Like others have said, this isn't some conglomerate jumping on the little guy, it's one artist who wasn't at all happy about his iconic work being used by another for a commercial project.

What really seems to be the point is that all of this could have been avoided by just asking permission at the start. A straight "no" would have meant different art work, but none of this hassle or financial impact.
posted by MattWPBS at 3:46 PM on June 23, 2011


And I am sure Maisel could give a damn about what the blog world thinks of him. He is 80 years old, an incredible contemporary photographer, and owns a city block in New York.
posted by WickedPissah at 3:48 PM on June 23, 2011


And just for fun, here's a link to Andy Warhol's White Burning Car II, which after all, is just a straight painting of a famous photograph with some minimal creativity added.

If this sort of lawsuit prevents more douchebags like Warhol from making art out of ironic re-appropriation than it may be a good thing.
posted by Lovecraft In Brooklyn at 3:53 PM on June 23, 2011 [1 favorite]


To reiterate, there is quite the backstory to the $30 million building in NYC. "The fourth floor, which Maisel once rented out to Roy Lichtenstein, is a work-in-progress"
posted by smackfu at 3:54 PM on June 23, 2011


The Lichtenstein that adapted comic book panels?
posted by Hoopo at 3:58 PM on June 23, 2011 [4 favorites]


bradbane: I imagine he has sold at least one print of that photo.

That's not what "commercial usage" means.

Semi-related: Nussenzweig v. DiCorcia

Nope. Not so. The copyright holder may have exclusive rights. If you are using it for anything other than what you have been given rights to, and you are not able to prove your use falls under Fair Use (or don't have the resources to attempt to do so) you are SOL.

Sorry what I meant was that a "fair use" defense hinges on actually using the material (using meaning publishing/distributing/whatever). You can photograph or draw whatever you want.
posted by bradbane at 3:59 PM on June 23, 2011


"The fourth floor, which Maisel once rented out to Roy Lichtenstein, is a work-in-progress"

Now that's fucking irony.
posted by Threeway Handshake at 4:03 PM on June 23, 2011 [5 favorites]


The Lichtenstein that adapted comic book panels?

By 'adapted' you mean 'stole the hard work of much more talented artists and didn't compensate them', right? The irony is rich indeed.
posted by Lovecraft In Brooklyn at 4:25 PM on June 23, 2011 [1 favorite]


hey andy
posted by the cuban at 4:25 PM on June 23, 2011 [1 favorite]


So after all these years it seems that Maisel just doesn't get Jazz.
posted by Elmore at 4:31 PM on June 23, 2011 [1 favorite]


too tired to satirize: milarepa probably has some pretentious opinions and great things to say about those damn kids/nerds, what a shame

Nah, I just thought the music was awful. I like chiptune, but that stuff was pretty bad.
posted by milarepa at 4:34 PM on June 23, 2011


It sure is fun playing courtrooms. Seems to me when the only guy in the thread apparently in a position to know says "I don't know", the amateur lawyers should shut their mouths.
posted by howfar at 4:36 PM on June 23, 2011


If this sort of lawsuit prevents more douchebags like Warhol from making art out of ironic re-appropriation than it may be a good thing.

Your favorite artist sucks.
posted by ChurchHatesTucker at 4:37 PM on June 23, 2011 [1 favorite]


And just a story about what happens if you don't protect your copyright as an individual photographer: http://www.flickr.com/photos/sesh00/515961023/

Virgin Mobile Australia created an entire ad campaign using Flickr images they found under creative commons and didn't pay a cent to the photographers. Image licencing for bus ads in the states go for 2-3 grand per image used. The photographers basically gave up their copyright and maybe they liked the fact that a multi million dollar company used their photos for free to make more money, I can't speak for them. But I personally wouldn't let that happen.
posted by WickedPissah at 4:38 PM on June 23, 2011


And just a story about what happens if you don't protect your copyright as an individual photographer: http://www.flickr.com/photos/sesh00/515961023/

That right there is the point of putting photos into Creative Commons.
posted by Threeway Handshake at 4:39 PM on June 23, 2011 [3 favorites]


By 'adapted' you mean 'stole the hard work of much more talented artists and didn't compensate them', right? The irony is rich indeed.

I would say that what Lichtenstein did with those comic book panels was much less transformative than the Bloop cover art. Lichtenstein's work is obviously not uncontroversial in that respect, but I think he'd have a much harder time defending his re-creation of comic book panels if challenged and yet he's a celebrated artist. Was his entire oeuvre "not OK"? Is there no value in allowing artists the freedom to play with and satirize famous images?

Seems to me when the only guy in the thread apparently in a position to know says "I don't know", the amateur lawyers should shut their mouths

Why? Doesn't that mean it's pretty much up for debate?
posted by Hoopo at 4:42 PM on June 23, 2011


And just a story about what happens if you don't protect your copyright as an individual photographer:

Their copyright is still intact. Some people didn't seem to understand the license they offered them under, but that's a different issue.

And the real story there was that Virgin's ad agency didn't secure model releases, IIRC.
posted by ChurchHatesTucker at 4:44 PM on June 23, 2011


I can't wait until all art and creativity is finally controlled by lawyers. I want to litigate some canvas and file a few hundred words, after that I'll prosecute a few blues chords on my guitar, then I'll see if I can expedite some love making with Person B (Spouse).
posted by Elmore at 4:50 PM on June 23, 2011 [6 favorites]


Doesn't that mean it's pretty much up for debate?

Yes, but unless you are familiar with the pertinent statute and case law it's fairly futile. If you want to build a suspension bridge, you ask an engineer, not a lawyer. If you want to build a legal case, who do you think you ask? FWIW, I think suing in this case is a dick move, but as this didn't go before a court, the legal rights and wrongs of it are unclear. There is a whole world of extralegal rights and wrongs, however, and it can be morally wrong to exercise a legal right.


Or, to revert to my previous grumpy and shouty position: Get off my law!
posted by howfar at 4:54 PM on June 23, 2011 [1 favorite]


Yes, but unless you are familiar with the pertinent statute and case law it's fairly futile.

Sounds pretty futile even if you are familiar. Fortunately, we can argue right and wrong independent of legality.
posted by ChurchHatesTucker at 5:00 PM on June 23, 2011


I OBJECT!
posted by Threeway Handshake at 5:01 PM on June 23, 2011


That's crazy talk. Do you think Metafilter threads normally get real-world results and solve crimes or something?
posted by Hoopo at 5:01 PM on June 23, 2011


Oh wait, this isn't actually in a courtroom. And we're just people talking on the internet. So I don't have to be a lawyer.
posted by Threeway Handshake at 5:01 PM on June 23, 2011


Ba da da - da da da - ba da dah dee da da - ba da dee da, ba da dee da - ba dah da....


Solved.
posted by Elmore at 5:05 PM on June 23, 2011


I didn't clear any rights for that by the way.
posted by Elmore at 5:07 PM on June 23, 2011


Was his entire oeuvre "not OK"? Is there no value in allowing artists the freedom to play with and satirize famous images?


He wasn't 'satirizing' them. The only 'satire' was 'haha, comics!'. He made millions off the hip crowd while the actual artists were churning out work of that quality day after day for very low pay.
posted by Lovecraft In Brooklyn at 5:12 PM on June 23, 2011


hey andy

Ass.

Andy, I don't know how new or how resolved all this is, or if it's been mentioned, but if there's a place where I can donate some money to help cover the costs of the settlement, please point me there.
posted by stavrosthewonderchicken at 5:12 PM on June 23, 2011 [5 favorites]


"Fair use" is a legal concept. Most of the discussion here is on the legal point. The moral point seems obvious to me, but I'm a simpleton.
posted by howfar at 5:23 PM on June 23, 2011


Just wanted to say this in response to unSane's first comment:
How rich he is is entirely irrelevant.
I can't disagree more. It is maybe the most relevant piece of information here. It is certainly way more relevant than the concept of "fair use!" We can debate whether or not it was (I think so), but ultimately, who cares? It's academic -- the question had almost no bearing on the final outcome.

In cases like these, if you have deep pockets, and your opponent doesn't, you don't need to be right. Even if you end up losing, it's nothing to you and everything to them, so you know they'll never call your bluff. This wasn't Maisel making a principled stand about his artistic integrity: it was extortion.
posted by en forme de poire at 5:35 PM on June 23, 2011 [4 favorites]


I think its about maintaining the sanctity of the image, though. I don't want the cover of Abbey Road to be endlessly reproduced out of jellybeans, LEGO, or pot leaves. Somebody needs to keep an eye on these things.
posted by Lovecraft In Brooklyn at 5:37 PM on June 23, 2011


This wasn't Maisel making a principled stand about his artistic integrity: it was extortion.

Complete bollocks. Unless you think that rich people should be prevented from suing poor people (is Baio poor? Really?) just, y'know, because. And if you're really willing to go down the rabbit hole of public funding of defences against civil suits, I don't even know what to tell you.
posted by unSane at 5:43 PM on June 23, 2011


I think its about maintaining the sanctity of the image, though. I don't want the cover of Abbey Road to be endlessly reproduced out of jellybeans, LEGO, or pot leaves. Somebody needs to keep an eye on these things.

Ummmm...
posted by ChurchHatesTucker at 5:49 PM on June 23, 2011 [1 favorite]


unSane: So you're fine with rich people using the cost of legal proceedings to bully people into forking over more than most of us earn in a year? If you really don't think this is a problem, I don't even know what to tell you.
posted by en forme de poire at 5:58 PM on June 23, 2011


I think its about maintaining the sanctity of the image, though. I don't want the cover of Abbey Road to be endlessly reproduced out of jellybeans, LEGO, or pot leaves. Somebody needs to keep an eye on these things.

Ummmm...


Most of these are horrible, except for The Simpsons and Metallica ones. And they could easily afford to pay the fees.


unSane: So you're fine with rich people using the cost of legal proceedings to bully people into forking over more than most of us earn in a year? If you really don't think this is a problem, I don't even know what to tell you.


What does the money have to do with it? I could easily see a situation where a rich artist copies a poor artist's work and the poor artist needs to sue them.
posted by Lovecraft In Brooklyn at 6:00 PM on June 23, 2011


If the copyright law was interpreted like it was in this case then it sets the scene for thousands and thousands of new cases on legacy infringement. Lichtenstein and Warhol would be just the beginning, and its got the point that I'd love to see this kind of insanity play out.

I'd like to see the huge estates of 20th Century artists totally bankrupted by applying copyright law as it has been redefined in the 21st Century. I'd like to see copyright cartels that make money from licensing forced to purchase exotic 21st rights; right to use in an avatar, right to use in a web page, right to use on an iphone and thousand other dubious distinctions and I'd like to see that money disbursed in vast comical circular payments that evaporate into nothing after transaction fees are deducted.

I'd like to see all this and more, but most of all I'd like to see the entire industrial art complex collapse under the weight of a million lawyers.
posted by vicx at 6:01 PM on June 23, 2011 [1 favorite]


unSane: So you're fine with rich people using the cost of legal proceedings to bully people into forking over more than most of us earn in a year?

What is the alternative you are proposing?
posted by unSane at 6:01 PM on June 23, 2011


The cover seems to be every bit as [ derivative | fair use ] as the music.

He paid out for the music, so...

Let that be a lesson, kids: Just fucking steal it.
posted by Sys Rq at 6:02 PM on June 23, 2011 [1 favorite]


Let that be a lesson, kids: Just fucking steal it.

Really. It would have been cheaper.
posted by ChurchHatesTucker at 6:07 PM on June 23, 2011


What does the money have to do with it? I could easily see a situation where a rich artist copies a poor artist's work and the poor artist needs to sue them.

Yes, and in this situation the poor artist is still screwed, because of asymmetric access to fancy lawyers and the asymmetric cost of engaging in a legal battle. A lawsuit hurts a poor person a lot more than a rich person.

What is the alternative you are proposing?

I'm not a policy maker. But maybe we could start by taking some cues from the Germans and the Dutch (see p. 24).
posted by en forme de poire at 6:25 PM on June 23, 2011


"If this sort of lawsuit prevents more douchebags like Warhol from making art out of ironic re-appropriation than it may be a good thing."

Dude, you've already pissed off the Aussies with glib reductionism. Don't piss off the art history kids too.
posted by klangklangston at 6:40 PM on June 23, 2011


He wasn't 'satirizing' them. The only 'satire' was 'haha, comics!'. He made millions

Oh sorry I'm not trying to defend Lichtenstein here, I'm just going with the conventional narrative around his comic book panel stuff, especially the more thieving ones. Something something satire something something it's art when he does it something, I think it goes. I guess what I'm trying to say is that the derivative work of Lichtenstein and Warhol are generally considered to be worthwhile artistic endeavors and held up as reasons for re-interpretation of copyright protection; while some talented unknown shmoe doing something that modifies the source it derives from--to a much greater extent than celebrated Pop artists did--is considered theft.
posted by Hoopo at 6:59 PM on June 23, 2011 [2 favorites]


man i suck at punctuation and grammar and English and stuff
posted by Hoopo at 7:05 PM on June 23, 2011


I'm not a policy maker. But maybe we could start by taking some cues from the Germans and the Dutch (see p. 24).


p24 deals with poor people having access to justice by bringing actions as plaintiffs using formal non-court dispute mechanisms as an alternative to civil court proceedings. It has got nothing to do with (supposedly) poor people as defendants.

Keep Googling, I'm sure you'll get there eventually.
posted by unSane at 7:06 PM on June 23, 2011


unSane: ...you think that rich people should be prevented from suing poor people...
No suit. Maisel didn't want, didn't get a public hearing or even an admission of guilt; he was content with a pound of flesh.
posted by Western Infidels at 7:06 PM on June 23, 2011


Oh please, I'm sure Maisel was much more willing to go to court over the issue than Waxy.
posted by smackfu at 7:16 PM on June 23, 2011


unSane: Wow, you sure got me! Obviously unequal access to the law is the natural order of things and I was foolish to question it.
posted by en forme de poire at 7:18 PM on June 23, 2011


It just has no application to what we are discussing here, so why post it?
posted by unSane at 7:23 PM on June 23, 2011


No suit. Maisel didn't want, didn't get a public hearing or even an admission of guilt; he was content with a pound of flesh.


The choice to settle was Baio's. He could have gone to court if he'd wanted.
posted by unSane at 7:24 PM on June 23, 2011


It just has no application to what we are discussing here, so why post it?

You don't see how the two parties in this case have unequal access to the law?
posted by en forme de poire at 7:24 PM on June 23, 2011


Your link was about increasing access for plaintiffs via dispute resolution. How does this have anything to do with this case? You're just hand-waving.

What specific proposals do you have that would increase access for impecunious defendants in civil cases, since that is what you are complaining about? The PDF you cited does not contain any.
posted by unSane at 7:28 PM on June 23, 2011


What specific proposals do you have that would increase access for impecunious defendants in civil cases, since that is what you are complaining about?

Well, since you're taking such an interest, I think there's a reason that we have public defenders - to mitigate the extent to which rich people have an advantage in the courtroom. And so yes, shock, horror, I think there is a need for some kind of broader public legal service for civil suits.

But this is sort of a red herring. I'm sure you have a lengthy list of reasons ready at hand stating why this will never work and why I'm stupid and naive for even suggesting it. And I admit, I'm not a lawyer or a politician; I have no idea how anything like this would be implemented. My point is that currently, rich people (and corporations) can take advantage of the costs of defending against a lawsuit to manipulate the legal system, and I think this is morally objectionable. I don't really have any more to say about this.
posted by en forme de poire at 7:45 PM on June 23, 2011


I have no idea how anything like this would be implemented.

Okay then.
posted by unSane at 7:48 PM on June 23, 2011


Re: Lichtenstein.

1. Comic books and paintings are (or, at least, were) two very different things that cater to two very different worlds. The paintings call attention to this fact, whereas the original comics did not.

2. What do the paintings depict? Are they paintings of people, or paintings of comics?

3. Hey, remember when proto-porn was disguised as "reference material for artists"? And remember when comic books were being banned left and right? Same time, right? Ditto for Lichtenstein.

4. One cell from a comic book is a tiny portion of the original work, i.e. the whole comic book.

That's a world of difference.
posted by Sys Rq at 7:49 PM on June 23, 2011


Something that I would support would be reducing the amount of damages. 17 USC § 504(c) allows statutory damages per infringement of $750–$30,000, or $150,000 for willful infringement. The actual amount is left up to a judge's discretion. I think even $750 per infringement would be way too much in a case like this even if no fair use were found.
posted by grouse at 7:50 PM on June 23, 2011


I'd also be in favor of reducing the term of copyright back down to a maximum of 28 years, which would have made this whole case moot.
posted by grouse at 7:54 PM on June 23, 2011 [1 favorite]


You know, something just occurred to me. Does Maisel even own the rights to the photograph? Seems like a company like Columbia probably would have bought them out from under him on day one.
posted by Sys Rq at 7:58 PM on June 23, 2011


I'd also be in favor of reducing the term of copyright back down to a maximum of 28 years, which would have made this whole case moot.

I know that seems like a long time, but I started making commercially exploitable photographs and movies in, let's see, 1990 or so. I was a late starter, so I was about 26 at that time. So under your proposals those copyrights would expire in 2018, at which time I would be 64. Long before I intend to retire. How is that fair?

To me an equitable solution would be for copyrights to expire when the originator is likely to be dead. So let's assume one starts making good stuff at age 21, and dies at age 85. That gives you a 64 year window. I'm still not sure why it should expire at that point, but I'll let it go.
posted by unSane at 8:00 PM on June 23, 2011 [1 favorite]


You know, something just occurred to me. Does Maisel even own the rights to the photograph? Seems like a company like Columbia probably would have bought them out from under him on day one.

Are you kidding? Nobody bought out rights in those days. Even now it's very unusual.
posted by unSane at 8:01 PM on June 23, 2011


That's why there was a question mark in there. Thanks for the answer!
posted by Sys Rq at 8:06 PM on June 23, 2011


Sorry, didn't mean to snark. Usually it costs a lot to buy out an image since you are buying out all the potential future income from the pic. Normally record labels are trying to keep expenditures to a minimum. The idea that the recording becomes such a classic that it would make sense to buy out the image is usually a million miles from everybody's minds.
posted by unSane at 8:23 PM on June 23, 2011


1. Comic books and paintings are (or, at least, were) two very different things that cater to two very different worlds. The paintings call attention to this fact, whereas the original comics did not.

so are Kind of Blue and Kind of Bloop. And their respective covers.

2. What do the paintings depict? Are they paintings of people, or paintings of comics?

What does the Bloop and Blue cover artwork depict? Is it Miles Davis, or is it old-skool video game sensibility?

3. Hey, remember when proto-porn was disguised as "reference material for artists"? And remember when comic books were being banned left and right? Same time, right? Ditto for Lichtenstein.

No, it was before my time, but if the drift I'm catching here is the one you're intending me to, I think a similar case could be made for hip hop, for example, or any other number of other examples pushing the contemporary boundaries. I think what a lot of the "fair use" advocates are saying is that too strict enforcement of copyright too severely limits creativity. Is there a better legal case for Lichtenstein producing these reproductions, or is it that it was iconoclastic for its time?


4. One cell from a comic book is a tiny portion of the original work, i.e. the whole comic book.


So would a detail of Maisel's photo be OK?
posted by Hoopo at 8:46 PM on June 23, 2011


Comic books and paintings are (or, at least, were) two very different things that cater to two very different worlds. The paintings call attention to this fact, whereas the original comics did not.

That's what I said. Lichtenstein took the hard work of artists, invited them to be gawked at/mocked by a rich audience, and didn't give the original creators any money. It would be like taking some original Mario art, blowing that up, sticking it in a gallery, and taking all the credit from Nintendo. I wish copyright had been better enforced in the days of Warhol and the early Pop Artists.
posted by Lovecraft In Brooklyn at 8:49 PM on June 23, 2011


So would a detail of Maisel's photo be OK?

Probably, yes.
posted by unSane at 9:23 PM on June 23, 2011


I'd also be in favor of reducing the term of copyright back down to a maximum of 28 years, which would have made this whole case moot.
I know that seems like a long time, but I started making commercially exploitable photographs and movies in, let's see, 1990 or so. I was a late starter, so I was about 26 at that time. So under your proposals those copyrights would expire in 2018, at which time I would be 64. Long before I intend to retire. How is that fair?


I hold to the original purpose of copyright in the U.S.—that it is, as the Constitution says, "to promote the Progress of Science and useful Arts." Not to provide an income stream to the author or his assignees for life. I don't believe that many authors would stop creating if they were only assured a 28-year term instead of one in excess of 100 years. And our culture would be much richer for it.

If a 64-year term would be easier to get in place, I'd be all for it. I think the current >100 year terms are ridiculous, though.
posted by grouse at 9:24 PM on June 23, 2011 [2 favorites]


>>1. Comic books and paintings are (or, at least, were) two very different things that cater to two very different worlds. The paintings call attention to this fact, whereas the original comics did not.

>so are Kind of Blue and Kind of Bloop. And their respective covers.


No, actually, they're both very much albums of music (the same songs, even), and their covers are both very much album covers. They're the same material in the same format; all that's changed is the presentation.

>>2. What do the paintings depict? Are they paintings of people, or paintings of comics?

>What does the Bloop and Blue cover artwork depict? Is it Miles Davis, or is it old-skool video game sensibility?


Miles Davis. That he's being depicted through the lens of an old-skool video game sensibility doesn't change that.

>>3. Hey, remember when proto-porn was disguised as "reference material for artists"? And remember when comic books were being banned left and right? Same time, right? Ditto for Lichtenstein.

>No, it was before my time, but if the drift I'm catching here is the one you're intending me to, I think a similar case could be made for hip hop, for example, or any other number of other examples pushing the contemporary boundaries. I think what a lot of the "fair use" advocates are saying is that too strict enforcement of copyright too severely limits creativity. Is there a better legal case for Lichtenstein producing these reproductions, or is it that it was iconoclastic for its time?


Er, no. Point missed: I was suggesting that Lichtenstein was legitimizing comics by couching them in terms of "fine art." Bigger point missed: Lichtenstein's paintings were not "reproductions"; he wasn't printing bootleg copies of those crummy romance comics. A painting is not a comic book.

>>4. One cell from a comic book is a tiny portion of the original work, i.e. the whole comic book.

>So would a detail of Maisel's photo be OK?


He'd probably still sue, if that's what you mean. But he'd be a much bigger asshole for it.

To be clear, I'm not on Maisel's side at all, nor that of copyright in general. But, sadly, the laws do exist and must be navigated carefully and with consistency, which Baio failed to do. Mistakes were made. Entirely human mistakes, mind you, and most certainly nothing worth $32,500, but there you go.
posted by Sys Rq at 10:37 PM on June 23, 2011


"I know that seems like a long time, but I started making commercially exploitable photographs and movies in, let's see, 1990 or so. I was a late starter, so I was about 26 at that time. So under your proposals those copyrights would expire in 2018, at which time I would be 64. Long before I intend to retire. How is that fair?"

If you make one thing at 26, you probably shouldn't expect to retire off of it. It's incredibly fair to the public.

"To me an equitable solution would be for copyrights to expire when the originator is likely to be dead. So let's assume one starts making good stuff at age 21, and dies at age 85. That gives you a 64 year window. I'm still not sure why it should expire at that point, but I'll let it go."

Well, it should expire because we recognize that the period is arbitrary, that the rights are arbitrary (as are any property rights), and that without a vibrant public sphere of arts and sciences no further arts and sciences are possible.

I lean closer to a generation (28 years) than two (64), especially given the rampant problems of orphan works we have now.

I also tend to think that the German system of percentage penalties makes a lot more sense (don't know if it extends to copyright infringement, but it does to speeding tickets). That does a lot to correct the incentives — if all Maisel was going to make out of this (or Maisel's lawyers) was $3000, it'd be a much lower priority (what I guess to be a 10 percent penalty on total sales).

That would still protect the little guy's ability to sue the big guy (where the reward of a big settlement would entice lawyers to counteract the ones the big guy can afford), while decreasing the damages to the little guys. But the problem is that the IP law has been written to advantage folks like Disney and the RIAA going after thousands of little guys (even though it's largely ineffective).
posted by klangklangston at 11:34 PM on June 23, 2011


I'm getting dangerously close to comparing a lulzy album cover to Lixhtenstein here, and that's not my intention. I just don't see much difference here in principle between what's being done in either case. It seems like a much higher value is being placed on the photo that has been significantly modified than on a comic book frame that has been faithfully reproduced in a similar medium
posted by Hoopo at 1:49 AM on June 24, 2011


It seems like a much higher value is being placed on the photo that has been significantly modified than on a comic book frame that has been faithfully reproduced in a similar medium

The third factor of the fair use test is "the amount and substantiality of the portion used in relation to the copyrighted work as a whole." So yes, a single frame from a comic book, which represents less than 1 percent of the comic book, will inherently be more subject to fair use than an entire photo.

Not that this is the only difference between the two scenarios, as discussed above in more detail.
posted by grouse at 6:55 AM on June 24, 2011


A side-by-side comparison of works like Blam, Whaam! and I Don't Care! shows that Lichtenstein was doing a lot more than just tracing a source image.

But feel free to keep up this line of attack, folks, and soon you too can look as pointlessly aggrieved as the guy in that last link who takes offence on behalf of the (possible) letterer of the panel on which "I Don't Care!" was based, suggesting that Lichtenstein's greatest offence was the "bastardized tracing" of "Schnapp's original word balloon" when the word balloon was one of the least similar elements in the final painting. He even says "I don't know who wrote or drew this story" - noticing neither the irony that he Doesn't Care enough to find out, nor that the creators' relative anonymity was part of what Lichtenstein was addressing in his work.

Not transformative? Lichtenstein's comics-based paintings were in large part about how the mundane and anonymous popular art that surrounds us, which many people at the time didn't even think of as art (which was certainly true of comics), could be transformed by fine art methods and revealed as the art that they always were. Same deal with Warhol's Campbell's soup cans. Comics and graphics artists owe the pop artists of the 1960s a debt for helping change public perceptions of their work. Without them, it could have taken a lot longer for people to care about the names of guys like Frank Miller and Steve Ditko, let alone Ira Schnapp.
posted by rory at 7:04 AM on June 24, 2011 [5 favorites]


Nothing in what Andy did took away from Maisel's work at all. He suffered no losses. This is a shame of epic proportions, and yet another in a long list of examples of how copyright is used to censor, rather than to promote progress. The whole thing should make us all feel kind of blue...
posted by ChurchHatesTucker at 12:08 PM on June 24, 2011


I don't want the cover of Abbey Road to be endlessly reproduced out of jellybeans

Oh that's just crazy talk.
posted by krinklyfig at 3:17 PM on June 24, 2011


The sound of money.
posted by ChurchHatesTucker at 2:31 PM on June 25, 2011


Fair Use doesn't matter if you can't afford it.
posted by Freen at 11:33 AM on June 26, 2011 [1 favorite]


Any wikipedians on here? Apparently the issue is being scrubbed from Maisel's wikipedia page.
posted by foggy out there now at 7:51 AM on June 27, 2011


Updated take on this at techdirt today. Interesting case referenced in the comments, whereby a photographer was taken to court by the sculptor whose work he took a photo of after his photo was used as reference for a postal stamp. The court eventually ruled in favor of the sculptor (the photographer won his case in the lower court). If that's not a prime example of how screwed up copyright law is, I'm not sure what would be.
posted by stagewhisper at 3:26 PM on June 27, 2011


Any wikipedians on here? Apparently the issue is being scrubbed from Maisel's wikipedia page.

It's an interesting question: is this particular settlement so much more notable as part of Maisel's entry just because waxy decided to blog about it a year later?
posted by smackfu at 7:48 AM on June 28, 2011


Kind of Bloop graffiti pasted on Maisel's building
posted by Greg Nog at 8:43 AM on July 1, 2011 [2 favorites]


Two new pro-Maisel pieces:

Kind of Bamboozled: Why ‘Kind of Bloop’ is Not a Fair Use

Jay Maisel Defends His Copyright And Is Attacked For It Online
posted by Horace Rumpole at 12:14 PM on July 12, 2011 [1 favorite]


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