67 Comments

Summary:

The web is enabling an explosion of “remix culture,” but as Kickstarter co-founder and blogger Andy Baio recently discovered, “fair use” only applies if you can afford to fight for your idea in court. What does that mean for the future of the remixable web?

15899841_1b44e3f11d_z (1)

All around us, the web is enabling an explosion of “remix culture,” in which bits and pieces of text, images and video are cut and spliced to create new forms of art. Whatever you think of the specific outcomes of this process, it’s arguably a huge social benefit — and the principle of “fair use” is supposed to make that easier to enable. But as Kickstarter co-founder Andy Baio discovered when he put together an art project, “fair use” only applies if you can afford to fight for your idea in court — and if you can’t, you will fail. What does that mean for the future of the remixable web?

Baio, who is also a prominent blogger at Waxy.org, described in a long post on Thursday how he decided to put together a musical tribute to the jazz musician Miles Davis, by creating eight-bit — i.e., ringtone-level quality — versions of the famous album Kind of Blue. Baio carefully cleared all the licenses for the songs themselves, and even decided to donate the proceeds from the sales of his project (which was released last year) to the musicians who played on the album.

However, Baio didn’t get approval for the cover image, which was a pixellated version of the original photo of Davis, taken by the famous photographer Jay Maisel. After releasing his project — called Kind of Bloop — Baio got a legal claim from Maisel’s lawyers, who said his image represented copyright infringement. Despite Baio’s belief that the pixellated version of the image represented fair use, the blogger says he couldn’t afford to fight the lawsuit in court, and ultimately settled by paying Maisel $32,500.

[T]his is important: the fact that I settled is not an admission of guilt. My lawyers and I firmly believe that the pixel art is “fair use” and Maisel and his counsel firmly disagree. I settled for one reason: this was the least expensive option available.

As Baio’s blog post circulated around the blogosphere and on Twitter, it sparked a firestorm of criticism aimed at Maisel (which Baio tried to help snuff out). Eventually, that storm — which focused in part on the fact that the photographer lives in a 72-room New York landmark valued at $35 million — spilled over onto Maisel’s Facebook page, where hundreds of comments piled up accusing him of targeting a poor blogger. Part-way through the day on Thursday, the page was removed.

The fact that Jay Maisel is a famous and wealthy photographer (he actually bought the New York building in 1966 for $102,000) and Baio is just a blogger who helps run a startup shouldn’t have any bearing on whether what Baio did qualifies as fair use or not — but it does, because the only way to defend against such a claim is to go to court, since the burden of proof for fair use is on the defendant. And going to court is expensive.

It doesn’t help that the fair-use principle is complicated. There is no blanket “this is art” or even “this is a parody” exemption. Instead, the courts look at four factors — including the nature of the work (i.e., whether it is “transformative”) and whether it affects the ability of the creator to sell or license the original. Based on some of what Judge Pierre Leval has written about fair use, I — and plenty of others — think it’s pretty clear that Baio’s use was transformative. It altered the image both literally and figuratively for artistic purposes, and is unlikely to affect Maisel’s ability to license the original. As Baio put it:

Far from being a copy, the cover art comments on it and uses the photo in new ways to send a new message. This kind of transformation is the foundation of fair use.

But in the end, as Baio notes, none of that matters because he couldn’t afford to fight the case. Over the past decade or so there have likely been thousands or tens of thousands of similar cases — not to mention some in which home movies were removed from YouTube because copyrighted music was playing in the background — because no one wanted to (or could afford) to fight the case. And the result is that large entertainment and media entities get to dictate what is fair use and what isn’t.

This has a real impact on our society, as copyright-reform advocate Larry Lessig has said and written a number of times in his comments about the value of “remix culture,” including his 2008 book Remix. Digital content is so fluid that remixes and mashups of popular culture and mainstream content of all kinds have become a kind of second language, particularly for web-savvy young people.

My teenaged daughters, for example, experience almost every major news event via a video mashup of some kind — usually because someone makes a parody, as they did with the “Bed Intruder” and even the death of Osama bin Laden. This has become an integral part of how they experience media and content, and almost all of it is probably copyright infringement of some kind. Do we ultimately gain by stamping out that kind of thing with expensive lawsuits, or do we lose? I think it’s clearly the latter.

Post and thumbnail photos courtesy of Flickr user Dawn Endico and Andy Baio

  1. Basically, Baio created his work based upon the original works of others. He was correct to seek licenses from the music involved, but he failed to show the same courtesy to the photographer. Instead, he stole it and soothed his conscience by claiming it was “Fair Use.”

    He was wrong and now he’s paying for it. Instead of admitting that he stole the work, he’s concocted this story about how only the wealthy can fight a court battle. He never takes responsibility for his theft and that it was his actions that caused the entire situation.

    Note to artists: Try being creative instead of derivative.

    Share
    1. Thanks for the comment, William — I think you are wrong on a number of counts though. For one thing, Andy did not “steal” anything, since Jay Maisel still has the original photo and his ability to sell it has not been affected in any way. For another thing, virtually *all* art is derivative in some way.

      As for the music, I think Baio could arguably have used the songs as well without licensing them, under fair use principles, but he chose to license them and donate the funds to the artists. I doubt Jay Maisel needs that kind of charity.

      Share
      1. Mathew:

        Andy took something that wasn’t his and he didn’t have any license or right to take it. Digital or physical, that’s theft. Your argument that Jay Maisel still has the original is true, so Andy stole a copy. It’s still not his. The image is recognizable as the original. All rights to that image belong with the copyright holder, whether original or duplicated.
        Saying that all art is derivative in some way is very nebulous.

        The fact is that Baio made a decision to license the music. Why didn’t he make an effort to license the photo? It seems, based upon his post, that Maisel would’ve rejected the request, but so what?

        Whether Maisel needs charity or not isn’t the issue. Are you arguing that it’s OK to steal from someone who can “afford it”, but you have to license music to help the poor? I hardly see Andy as Robin Hood.

        Had Andy contacted the copyright owner, none of this would be an issue. He didn’t and now he’s suffered the consequences of his decision.

        Share
      2. You “think” he could have used the music – Me thinks he would be paying out a lot more than he did. And, as William writes, he should have shown the photographer the same courtesy.
        Just kills me when someone well known gets caught and ya’ll jump on the “ya but” defense wagon.

        Share
      3. Ambrose Pierce Friday, June 24, 2011

        Mathew, his ability to resell the image has been affected. Whenever someone intends to license a stock image–an Ad Agency, corporation, non-profit, individual–the value of the license will be determined by, among other things, the history of that image, where else the image has appeared, and what other products and/or services it has been associated. That it is now associated with Mr. Baio’s failed project will only serve to diminish its value. I wouldn’t expect you to know this because you’ve never been in the business of licensing intellectual property. Yet, with all due respect, you speak as if you are an expert.

        Insofar as fair use is concerned, I think it might be worth the time it takes to research its definition. First, there is no consensus on what fair use is, even among the courts. The short definition is that if the work is being shown for commentary, criticism, or educational purposes, it falls under fair use. For example, it is well within your right to post Mr. Maisel’s image here on your blog without fear of legal retribution–despite this being a commercial blog that sells advertising and from which you and others derive income–provided you are discussing the relative merits and/or controversy, etc, surrounding it and not using it to advertise one of your advertiser’s goods or services. However, Andy Baio was not reporting on Mr. Maisel’s image of Miles Davis. Baio is a self-proclaimed “entrepreneur” and he was selling music for profit using Mr. Maisel’s work to promote it. Because it was a for-profit enterprise, fair use can be used as a defense, but it is very, very unlikely that would hold up in court. Was the pixelated image Baio commissioned to another artist truly a “transformative” work? Absolutely not! How do I know this? Ask Baio’s attorneys. Had Baio’s attorneys had even the least bit of faith that it was truly transformative, they would have taken it to court on contingency. Or Larry Lessig would have taken up the charge. Baio’s attorney’s did their legal research, and realized they wouldn’t have a chance in hell. So I suggest to all those folks who think running an image through a photoshop filter is creative, cool, and transformative should give Baio’s attorneys a call and see what they think.

        One other thing to keep in mind. Baio paid everyone involved in the project BUT the photographer, which is a sad but common practice. I applaud Mr. Maisel for taking a stand. Artists, musicians, photographers, writers, poets, and designers are all friends of Mr. Maisel and grateful for his courage.

        Lastly, I think it’s important to note Mr. Baio is hardly “poor”. There are misperceptions in the blogosphere as to who Mr. Baio is. One blogger described him as a “hobbyist”. This is laughable. Baio hasn’t skipped a beat despite the 32k hit he took from Mr. Maisel. His blog is up and running and it’s business as usual. Baio is an entrepreneur, and like any entrepreneur he’s in a high-stakes, high-risk game that will invariably involve screwing a few people along the way. I guess he figured Mr. Maisel wasn’t worth asking permission. Back in 2005 Baio had a significant windfall after selling one of his businesses to Yahoo, so I’m not shedding any tears for the guy.

        Please be mindful that I did not post this as a personal attack or to embarrass you, so please don’t take it the wrong way.

        Share
      4. The fact that he licensed the music and not the photos is the biggest argument against him for me. Did Maisel need the money? No, but he could’ve offered to give Maisel’s portion to Save the Music or something like that. Ultimately, I’m just not convinced by the fair use defense.

        Share
    2. Wow, William Beem, you know nothing about artistry nor being an artist. Creation IS derivation. It’s plainly obvious that the subject in question is fair use, and you’re couching your ignorance on highly-criticized and controversial laws.

      So basically, William Been is a typical ignorant Internet commenter who failed to understand the basics of the story and instead decided to gurgle his prejudices for all to read.

      Share
      1. I’m sorry, but it’s kind of funny when a person with a pseudonym calls me ignorant and prejudiced, but yet can’t do anything but state opinion. If insults are all that you have, you don’t really have any argument at all.

        Share
      2. Its one thing to creatively derive a piece of art from something else. Its another thing entirely to simply apply a filter to an existing art and somehow think you now own it. Just because I change the resolution on a photo doesn’t mean I suddenly own that image at that resolution.

        Of course, I’m undecided on whether this actually was copyright infrigement.

        Share
    3. Tony Wright Friday, June 24, 2011

      Warhol did screenprintings / photostencils based on photographs that he didn’t take (his famous Marilyn Monroe image is an example). Derivative works CAN be creative works– the fair use laws exist for a reason.

      The laws are pretty fuzzy and plenty of smart people seem to disagree with you– speaking in absolutes like you have here after reading a blog post seems pretty hasty.

      Share
    4. William, do you understand what fair use means? It is specifically designed to allow creative works that are based on “copies” or what you insist on calling theft. It’s an important principle that lies behind a lot of art. Do you agree that there is ever a case where fair use should apply?

      Share
    5. All art is derivative, whether you like it or not. Were you actually a creator yourself, you would know that.

      Share
    6. This just in: photographer takes absolutist position in favor of other photographer.

      While, of course, publishing pictures of other people’s creative work.

      Share
    7. You couldn’t be more wrong.

      I won’t even bother to comment on your misunderstanding of the nature of art, creation, derivation, and transformation, but instead address your misunderstanding of the law.

      Section 115 of the Copyright Act of 1976 specifically mandates a compulsory license for covers of songs. Andy had to license the music, but the law is clearly on his side in the case of appropriating the photograph.

      Share
      1. The license is mandatory on the part of the RIGHTSHOLDER, not on the part of the user. In other words, the holder of the copyright can’t say no to cover songs so long as the covering artist gets a license, and the rightsholder can’t stop them from getting that license nor increase the royalty beyond the statutory maximum.

        Fair Use applies just exactly as much to musical use as it does to photographs etc. Had Baio’s use been a Fair Use, the mandatory licensing of cover songs would have been totally irrelevant.

        Share
    8. “Note to artists: Try being creative instead of derivative.”

      “If you create a work that simply can’t stand on its own merit without the full use of someone else’s work, then I think it’s not much of a contribution as art.”

      Comments like these read as though their author has never practised art (or literature, music, dance, etc.), studied it, or even thought about it in any significant depth. If what you wrote were properly followed, no writers of Greek or Roman mythology could have made contributions to art, no artworks of the Renaissance that engage with religious ideas or symbols would have made contributions to art. The concept of photography could never make contributions to art. Portraiture, out.

      Share
    9. Terry Blanchette Saturday, June 25, 2011

      “Note to artists: Try being creative instead of derivative.”

      Really?
      http://williambeem.com/wp-content/uploads/2011/06/R2-DTrooper.jpg

      Share
      1. Now THAT’S a grade-A smack-down.

        Share
      2. Yes, really. It’s not something I posted for sale, as did Andy Baio. It’s something I did as a commentary (and for a mild laugh) about the power of Disney in my area. Had I try to use this image with a product, or for any other commercial use, I’d expect to get my butt sued. However, taking a picture of products I purchased and putting them on my own non-profit blog is legal.

        Doesn’t mean that the photo isn’t derivative (it is), but it’s not on the market. Of course, I would expect an Internet troll to find one photo to support his point while ignoring everything else. Really, Terry. That’s all you’ve got?

        Share
  2. Check out Michael Donaldson. He is an LA based attorney considered the best in the world. He helped us with a documentary where we used less than 30 seconds worth of Universal Pictures movie clips. They wanted to charge us $13,000 for these clips – we said we’d pay for them. Then, they changed their mind and said we couldn’t use the clips even if we paid for them. Also, all of the news clips in our film (which we used a TON of) – we offered to pay the news stations – every last one of them REFUSED to allow us to use the clips in our documentary. This is the REAL PROBLEM with fair use and licensing. I can understand if somebody wants some money to license something. But what happens when you offer to pay, and they flat out deny you that opportunity? Many current and future projects will suffer…

    Share
    1. Thanks for the comment — I agree that it makes it even harder to create these kinds of works when the rights-holders won’t license them under any circumstances. In fact, Jay Maisel’s representative said he wouldn’t have agreed to license the image even if Baio had offered to pay.

      Share
    2. “I can understand if somebody wants some money to license something. But what happens when you offer to pay, and they flat out deny you that opportunity? ”

      Then you move on with your life. If its their work and they don’t want to license it, then that’s their right. On the other hand, some people freely provide their work for others to create works. The common point is that it is the copyright owner’s decision.

      Share
      1. It is not unilaterally the copyright holder’s decision — that’s why fair use exists. Fair use allows you to modify and re-use a work regardless of whether the copyright owner agrees — that’s the whole point.

        Share
      2. That’s beside the point Mathew -Fair use is so nebulous that the best advice is to move on – Unless of course you have the time/money to fight a fair use battle.

        Share
  3. The lawyers always win.

    Share
  4. to me this looks more like a conflict between generations than about who is right or what is original art. ‘Old’ people (like Jay or William here) don’t get the asthetics of pixel-art/chiptunes/remixes and want to make sure everyone understands that only the historically established art forms like photography are to be taken serious and therefore need to be protected. Thats the only explaination i can think of. I don’t think Jay Maisel is a greedy bastard, who just wanted to make money on the way. He just saw that someone has used one of his photographs as a template for a pixel-artwork (and yes it takes more than just adding a photoshop filter to the album-cover) and wanted to make sure that the one who created it never forgets that you can’t “disrespect” a photograph like that.

    Share
    1. I agree, Jo — there does seem to be a kind of cultural divide when it comes to these kinds of questions, particularly when photography is involved. Maybe it’s that photographers see their “art” becoming marginalized as a result of the web, I don’t know. Thanks for the comment.

      Share
      1. There may be an age thing but, that has nothing to do with it – Pixelated or not, it can be considered a copy. I once did a proposed illustration rough in magic makers (yes, I’m old). The client decided to skirt us and have a printer do the piece directly. I sued and won even though the printed piece was obviously nicer than my marker rough – the judge ruled it a “copy”.
        Lots of opinions here but only the court decides.
        And it still goes back to one simple fact – He didn’t call the photographer and even try to get clearance.

        Share
      2. I should point out that this was an illustration for the cover of a brochure I designed for this client – Even though they copied the whole design, you can’t copyright a layout just as you can’t copyright a typefont – The only thing I could get them for was the illustration. They ended up paying way more than if they had just have gone ahead and used us to produce the whole thing.

        Share
    2. Thanks for calling me “old.”

      I see it as a matter of courtesy for property rights. There will always be a cultural divide in artistic matters. I never cared for rappers sampling the work of musicians, but I could see that they weren’t taking the entire song for use in a new work.

      In this case, Andy didn’t just sample the work – he took it all. From what I’ve read, he didn’t even try to contact Jay about it. If you create a work that simply can’t stand on its own merit without the full use of someone else’s work, then I think it’s not much of a contribution as art.

      This isn’t a matter of one’s taste in art, though. It’s business and it’s legal.

      Share
      1. Copying is not taking, or stealing; it’s copying. That’s why it has a distinct section of the law to deal with it. Hyperbole does your argument no justice.

        Share
      2. “If you create a work that simply can’t stand on its own merit without the full use of someone else’s work, then I think it’s not much of a contribution as art.” So architecture/street photography is what? Also i see the pixel-version much more as a homage than a copy.

        “This isn’t a matter of one’s taste in art, though. It’s business and it’s legal.” Well thats a different problem i see. To me it looks like Andy really didn’t had much (if any) financial benefit from this project and i don’t see how Maisel had any significant loss (if any) because of this. Then sueing him with draconian claims (don’t know if this sounds right in english language) just doesn’t seem right to me.

        Share
      3. Mr. Beem,
        When you take pictures of buildings aren’t you merely taking the work from the architect that designed the building in the first place? Are you not violating the architect’s property rights by profiting off of their work?

        Regards,
        TDL

        Share
      4. Good points, Jo — totally agree. Thanks for the comment.

        Share
      5. Why do you continue to disingenuously equate copyrights – established by positive law over a good that is inherently non-rival – with the kind of property rights that adhere in a much more basic way to physical materials?

        Share
      6. The copyright law of the US does not recognize buildings as copyrightable artworks. Therefore, no, you aren’t violating anybody’s copyright by taking a picture of a building.

        Certain kinds of architectural details and ornaments may be individually copyrightable as sculptural works. If this is the case then yes, you most certainly can get in trouble doing this.

        Share
    3. @PXLated: As a flashgame developer i know how it sucks if people ‘steal’ your work, post it on ad-filled crapsites and don’t even give credit to you. It’s a sad thing if someone is trying to profit from your work but the case of Andy Baio is something entirly different. The whole thing was a 8-bit homage to an more than 50 year old album. If anything it has promoted the original piece to a generation that is mainly influenced by ‘digital-culture’. This is far away from the case of getting scammed by some corporate dickheads.

      Share
      1. Makes no difference – He needed clearance.

        Share
  5. I can definitely see both sides of this argument. The thing that just bothers me about this, is that Baio asked and paid for licenses for the songs, but then didn’t bother to do that for the cover art, which essentially is what’s “advertising” his work. He’s also charging for the song downloads so he’s using someone else’s photo to “advertise”, and then taking the money from it.

    I just don’t like hearing stuff like this, because as a photographer, it’s more and more of an issue that people think “because it’s on the Internet, it must be free, and I don’t have to ask anybody if I want to use it for anything.” Would you guys feel the same way if it was your stuff which you worked hard to get being used without asking? Can I use Baio’s stuff now and claim “fair use?”

    Share
    1. Michelle, I’m sure if you used a photo or text from Andy in the creation of a work of art or something that added value and transformed his work in some way, he would support your use of it. At least I hope he would. Fair use applies to everyone, not just bloggers fighting rich photographers.

      Share
  6. I am sorry but this is not fair use, this kind of hysterical reaction does not aid the fair use cause. He could have chosen to illustrate miles davis, use a pixel image of Davis with permission of the photographer or look for a royalty free image of Davis. There was no reason to use this particular photograph.

    Using this particular image without permission is not fair use, it looks too much like the original and I don’t see what’s transformative about it, its a duplicated albeit in pixels.

    And this has no impact on society, we need a better example to make that case and not trivialize fair use with this example.

    Share
    1. Raul, the issue of whether an image is “transformative” isn’t just about how different the image looks — it’s about the nature and intended purpose of the work, in this case an artistic project. In other similar cases the courts have found that doing this *is* fair use, regardless of how similar the image is to the original.

      Share
    2. You don’t see the transformation between the two images? If I put them behind my back, shuffled them up, and brought them forward again, would you be able to tell me which one was which? What do you think your success rate with this experiment would be if we did it several hundred times? What do you think the average person’s success rate is? Is the new image likely to be confused with the old one in the mind of a potential buyer? Is the original photographer likely to suffer any losses from the publishing of the pixelated image? How much was Baoi “raking in” off the back of this “victim” of “infringement” (answer: none).

      If you believe, given the above, that extorting $32,500 out of the man through threats of a ruinous legal battle was the correct and just course of action, then I don’t know what to say. Our society and culture are doomed to a slow death.

      Share
      1. Enforcement will get more draconian until the camel’s back breaks.

        See http://culturalliberty.org/blog/index.php?id=276

        Share
    3. Nope. There definitely was reason to use that particular photo, since it is the cover of the original album his work refers to. The new image is clearly different and only makes sense as part of the “Kind of bloop” project.

      Share
  7. I honestly feel for anyone who is in a law suit, I’ve been in a few and luckily have always won. However, I think it is ridiculous that after someone losses or settles out of court that they would bring it to the attention of everyone in the business to slander (opinion) the other party. I think settlements as such should be kept private. I think anyone now would be careful to steal from Jay Maisel on the other hand it could leave a door for others to look at Andy. I don’t know anyone involved with this situation and I’m not a lawyer, but if I’m ever invalid in a suit like this in any capacity I would request a gag order.

    Share
    1. Repeat after me class:
      infringement != theft
      infringement != theft
      infringement != theft

      No one “stole” from Mr. Maisel. Furthermore, Mr. Maisel is the one who brought the litigation, so unless his lawyers came up with some sort of confidentiality clause as a condition of the settlement then Mr. Baio has every right to slander, er, shine a light on Maisel’s litigious behavior. All actions have consequences and I believe both sides will feel them for some time.

      Certainly Baio will think twice about using copyrighted works, even if he has a strong fair use argument, without seeking permission. Furthermore, Maisel has proven not only his disconnect with the “connected culture” but also his litigious nature. (Did he “sue first, ask questions later”? I’d like to know.) He missed an opportunity to draw positive attention to one of his classic works by allowing an homage. Even if we all agree that Baio “stole” or “infringed” on Maisel’s photo, that still does not prevent Maisel from *profiting* from the situation. $32.5K (minus lawyer fees) may sound good to you, but I’d wager that creating a group of new, young fans would have been much more profitable, financially and artistically. Just because you *can* sue doesn’t mean you *should* sue.

      Mr. Maisel lost out on a great opportunity to gain something much more valuable than $32,500, namely a chance to connect with a new generation of fans that would have made his entire body of work more valuable. Instead there are thousands of people who now think of him as a greedy douchebag.

      Share
  8. “If you create a work that simply can’t stand on its own merit without the full use of someone else’s work, then I think it’s not much of a contribution as art.”

    Take a look at the Marilyn Monroe original photograph and the Andy Warhol derivative, can you honestly say that Warhol’s print isn’t art?

    http://maurereditions.com/powlony.htm

    I think to say something isn’t art just because it encompasses the whole of another work is a gross over-simplification of a complex problem.

    Share
  9. As a hypothetical question, what if the record label decided to re-issue “Kind of Blue”, but to avoid paying royalties to the photographer, instead decided to hire someone to sketch the album’s original cover image? Would the new artwork be fair use? And what if the drawing was almost indistinguishable from the photograph?

    I think the public lashing Jay Maisel is getting is a little over the top. He certainly deserves the right to control his artwork from what is not fair use, though I’m not sure who’s right in this case. From Jay’s point of view, Andy misappropriated his work and he took measures to put an end to it and to punish Andy for doing so. From Andy’s point of view, the cover was fair use but the path of least resistance (financially and stress-wise) was to give in and just settle the case. It seems like the real problem isn’t Jay suing Andy, but that we need a less ambiguous definition of what constitutes fair use and a less costly way to let people defend themselves.

    Share
    1. I think the big problem in this case is contained in the phrase “to punish Andy for doing so.” That’s not what lawsuits are supposed to be for, but that seems to be what happened, whether Maisel wanted it to or not. And I agree it would be a lot easier if there was a simpler and less expensive way to resolve fair use questions. Unfortunately there isn’t.

      Share
  10. Not from USA, so the Qs: Why going to the court is so expensive? How expensive it is? Why not let the court to decide if one does not agree to the lawyers of the opposite side?

    One spends few hours putting few hundred pixels of 10 colors and gets paying 30+k for that!? It is not crazy, it is plain scary. But wait, would it happen at all if that is not a commercial use?

    Share

Comments have been disabled for this post