I know Andy Baio personally. We’re not close friends, but we’ve shared conversations over tasty beverages. I consider him to be a decent fellow. I’m also a fan of Jay Maisel’s work. He’s an awesome photographer and has been great contributor to the photographic community over the years. I’d love to have the chance to share a conversation with him as well. So, it’s with more than a bit of sadness that I watch the story about Andy’s settlement with Jay spread around the Internet with intense reverberation.
In case you haven’t already heard about it elsewhere, the issue is about the cover art for Andy’s Kind of Bloop project, a chiptune homage to the music of Miles Davis. Here is the cover that Andy commissioned along with the original Miles Davis album cover featuring Jay’s original photograph:
Jay felt that Andy’s use of the Kind of Bloop cover was an infringement of his copyright. The lawyers kicked into gear. Even though Andy felt he had a valid defense, he had to make a choice between settling for a five-figure some or spending a six-figure sum to defend himself. He would have lost even if he had won. A Hobson’s choice, if ever there was one.
Is it Transformative?
Photographers should be able to make a living from their work. For example, if you want to make money by using my work in a commercial fashion and I’m not willing to gift you that use, I believe that you should pay me. On the other hand, creative transformations of artistic works are part of the creative process and are essential for culture and the development of the arts. There’s an inherit tension here between these two points. This tension is addressed—at least to a degree—by fair use in copyright law. The big question is whether or not the Kind of Bloop cover is transformative enough to qualify.
Personally, I think it is. Look carefully—especially at the pattern in the tie—and you can see that it’s not just a derezzed image. Play with the original for yourself in Photoshop and you’ll see that it’s not simply the result of resizing or running a filter. What do you think? Do you agree or not? Either answer is OK and we could talk about it for hours, hopefully civilly. Unfortunately, unless you’re a judge ruling on a case, the conversation is academic.
Putting aside the emotional and financial effects on Andy and Jay, I wish this case had gone to trial and a judge had been able to rule. No matter how it turned out, it would have given all of us another valid data point on fair use that would be worth more than just a bunch of talk.
Pay to Play
Should Jay have the right to claim the derived image isn’t fair use and ask for a cease and desist? Absolutely. He’s not, as many are saying, a dick for his opinion. Should Andy have the ability to defend his stance that it is fair use? Of course. Should Jay be able to ask for damages based on the use even after Andy removed the image from the album? The law provides for this.
No matter who you personally support in this case, it’s important to note that each was exercising their appropriate rights. The issue that I’m concerned about is that it takes spending a silly amount of money—the kind of money that’s fairly trivial for major corporations but not for individuals—to get a judge’s ruling. The shame of all is that while copyright is largely a conversation between corporations, this case pits one creative person against another with legal tools that are mismatched for the question at hand. Nobody really wins. Well, except the lawyers.
Bonus Question: Do the possible penalties in copyright law designed to make it painful enough for publishing companies to comply make sense when applied to individuals in the current world where it’s so easy for anybody to be a publisher?
Fallout and Postscript
Since writing this post, I’ve been contacted by email by several people. Some of these communications have led to great discussions. Others, not so productive. Some feel that I’m helping inflame the case for one party or another. Let me say clearly: My intent here is not to be a proxy for either party, but to talk about the larger issue of this situtation as I see it.
As of July 19th, 2011, I’ve heavily edited this post to clarify what I wanted to communicate in the first place and have removed some material which doesn’t satisfy that aim. In particular and keeping with my intent not to be a proxy, I removed references to Andy’s actions such as his compliance with the initial cease and desist demand. He speaks for himself just fine on his blog post and in tweets to that effect. Consipiracy theorists can make much about the edits, but all of them were made to increase the focus on what I really wanted to say.
Finally, I have to say that I’m quite disappointed in how the situation around this conversation has deteriorated. Personal attacks are high as is speculation about personal motivations and hidden agendas. Even worse, the people who like to fuck shit up—the type that show up to a protest and turn it into a riot—have been at work. The result is beyond sad and has hijacked the conversation to serve different aims. It seems that a rational conversation about copyright remains very hard to have.