Kind Of Blue: Using Copyright To Make Hobby Artist Pay Up

from the chilling-effects dept

A whole bunch of folks have been sending over Andy Baio’s tragic story of having to pay $32,500 to photographer Jay Maisel for his use of an image, which he still believes was fair use. There are all sorts of interesting things to consider in this story, so let’s break it down.

Background:

Hopefully you already know who Andy Baio is. An all around intriguing guy who runs the awesome blog waxy.org, does fantastic web development, and has been involved with a few really interesting projects/companies, including Kickstarter and Upcoming.org (which he sold to Yahoo a while back). I don’t know Andy at all — have never met or spoken to him — but he’s one of the folks out there that I’ve had a ton of respect for for many, many years.

One of the really fun projects that Andy did was to record an album called Kind of Bloop — an 8-bit tribute to the classic Miles Davis album, Kind of Blue. Andy raised some money (via Kickstarter, of course), got together some “chiptune” musicians (who make 8-bit music, a la classic video games), and recorded and released the album. And, yes, he was careful to do all of the proper licensing for the music. He also gave any of the money that came in to the musicians, not taking a cut for himself.

The Problem:

All of that sounds good… and he was pretty surprised by the eventual mess he got into. For the cover, the obvious choice was to do an 8-bit rendering of the original Davis cover, and he, Andy, got a friend to put it together. You can see the original and the version for this album below:

It turns out that the original photo of Davis for the album was done by famed photographer Jay Maisel and Maisel believed the Kind of Bloop image violated his copyright. Andy argued, persuasively, that his use of the image was fair use. Maisel’s lawyers disagreed, and threatened him with:

“either statutory damages up to $150,000 for each infringement at the jury’s discretion and reasonable attorneys fees or actual damages and all profits attributed to the unlicensed use of his photograph, and $25,000 for Digital Millennium Copyright Act (DMCA) violations.”

Fair Use:

Andy makes a strong case for why this is fair use. If you focus on two key factors out of the four tests for fair use, I believe he has a very compelling case, but that won’t surprise many people. Baio points out that his version is transformative:

From the beginning, Kind of Bloop was a creative experiment. I was drawn to the contradiction between the textured, subdued emotion in Kind of Blue and the cold, mechanical tones of retro videogame music. 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?

It reinforced the artistic themes of the project, to convey the feel of an entire album reimagined through an 8-bit lens. 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. In a 2006 verdict, the court found artist Jeff Koons’ use of a fashion photo “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”

I don’t think there’s any question that Kind of Bloop’s cover illustration does the same thing. Maisel disagreed.

Separately, he also notes that on the other key test, the impact on the market, this is likely fair use: “It’s obvious the illustration isn’t a market substitute for the original: it’s a low-resolution artistic rendering in the style of 8-bit computer graphics that is, at best, of interest to a few computer enthusiasts.”

I actually think that he also could have argued that this isn’t even a fair use question, since many of the elements of the original photo that are copyrightable are actually removed in the 8-bit version, leading to some questions as to whether or not there’s even a violation of the copyright at all.

The Outcome: Cheaper to Settle than to Fight:

As is often the case when someone is threatened with the potential of having to pay huge fines after an expensive, lengthy and exhausting trial, it’s easier (and sometimes cheaper) to just settle. And that’s what Andy did. He agreed to pay $32,500 to Maisel, taking what had been a fun side-project, for which he earned no money, and turning it into something quite costly and astoundingly frustrating. Andy is quite clear that in settling he did not (and will not) admit to any guilt, as he still believes that his use was legal:

After seven months of legal wrangling, we reached a settlement. Last September, I paid Maisel a sum of $32,500 and I’m unable to use the artwork again. (On the plus side, if you have a copy, it’s now a collector’s item!) I’m not exactly thrilled with this outcome, but I’m relieved it’s over.

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

At the heart of this settlement is a debate that’s been going on for decades, playing out between artists and copyright holders in and out of the courts. In particular, I think this settlement raises some interesting issues about the state of copyright for anyone involved in digital reinterpretations of copyrighted works.

The real shame here is that it’s the ridiculously high statutory rates that caused this settlement to occur in the first place. If the potential liability weren’t so high, I wouldn’t be surprised to see Andy be willing to fight for what he believed was right. But with such a threat hanging over him, it’s understandable why he settled. It also explains why so many people abuse copyright law this way. Since it’s so often cheaper to settle… many people do, even if they believe they haven’t infringed on anyone’s copyrights.

Chilling Effects:

If you can’t see how this is an example of the massive chilling effects of copyright law today, you’re not paying very close attention. Andy had a very strong argument to explain how what he did was legal… and still agreed to pay $32,500 for a fun little side project he was making no money on. He was chilled into paying up, because the fight is just too expensive. And the chilling effects are nefarious and ongoing:

It breaks my heart that a project I did for fun, on the side, and out of pure love and dedication to the source material ended up costing me so much ? emotionally and financially. For me, the chilling effect is palpably real. I’ve felt irrationally skittish about publishing almost anything since this happened. But the right to discuss the case publicly was one concession I demanded, and I felt obligated to use it. I wish more people did the same ? maybe we wouldn’t all feel so alone.

Create some artwork out of love and appreciation… end up getting threatened with a massive lawsuit and having to pay up, even though you believe what you did was perfectly legal. That’s not what copyright law is supposed to be about.

The Backlash:

After Andy published his story, lots of folks picked up on it, and most of the commentary focused on Jay Maisel. There were articles and tweets calling him all sorts of names. Maisel ended up shutting down his Facebook page entirely. Andy, for his part, has urged people not to attack Maisel, and has made it clear that people shouldn’t take this out on him. However, I think it’s not at all surprising that this was the end result. We’ve seen this before. If you’re seen as a bully, abusing copyright law for things it’s not intended for, you shouldn’t be surprised if there’s backlash. I certainly don’t condone the harassment of Maisel, but I can’t see how anyone (least of all Maisel) should be surprised that it happened.

It does kind of make you wonder if the $32,500 was “worth it” to have your reputation dragged through the mud.

There were all sorts of smarter ways that Maisel could have handled this situation, but he chose to go the legal route.

Find the Line:

As a parting shot, Andy posted the following graphic, and asked where would people draw the line? What’s fair use? What’s infringing? A better question might be why should that even be a point of discussion at all? We have a case where something unique, new and creative was done… and was then stifled for no good reason. 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…

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Comments on “Kind Of Blue: Using Copyright To Make Hobby Artist Pay Up”

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139 Comments
Anonymous Coward says:

where would people draw the line?

At the point where you can look at the image and successfully argue that it could be viewed as something other than Maisel’s picture; probably the fourth line down.

And tragic? Give me a break. Baio’s isn’t transformative in the least; it’s pixelated. Look at it from 2 feet back: it’s the same picture.

He settled because he was going to lose.

Marcus Carab (profile) says:

Re: Re: Re:3 Re:

Um, no, I think you’re the one who has trouble using his brain to actually think instead of falling back on what seems right or what you have always believed.

I am not actually trying to belittle photography. I recognize that it is an amazing art form. But then, so is pixel art.

Please explain to me, in objective terms, how what the photographer did is any more creative than what the pixel artist did.

See? You can’t.

Anonymous Coward says:

Re: Re: Re:4 Re:

I can’t? Huh?

The pixel artist would have nothing without the original photograph. The photographer didn’t require an image (or anything else) from anyone in order to compose the image that they created and took.

What the pixel artist did is duplicative and derivative, and not particularly creative.

You and I seem to have this discussion a lot. You cannot seem to grasp the basic idea of originality versus derivative works. I don’t think you even care to consider it. It is too bad you are so narrow minded.

Marcus Carab (profile) says:

Re: Re: Re:5 Re:

The photographer didn’t require an image (or anything else) from anyone in order to compose the image that they created and took.

You photographers are fucking deluded. You use a device that captures images. How can you possibly claim that the photographer “didn’t require anything”? He took a photo of a person in front of him! He required a subject!

I’m afraid you are the one who cannot grasp basic ideas, like the fundamental and undeniable fact that no art exists in a vacuum, and all creativity is derivative to some degree.

Marcus Carab (profile) says:

Re: Re: Re:7 Re:

How am I dismissive? I think photography is awesome. I also think remix art is awesome.

You are the one being dismissive. And you have yet to respond to any of my points – you just keep insisting that photography is real art and remixing isn’t, without giving any reasons whatsoever except for the plainly untrue statement that “photographers require nothing”

You really, really need to learn to step back and look at this objectively. But it seems that you are incapable of doing so.

Meek Barbarian (profile) says:

Re: Re: Re: Re:

He didn’t turn it into something different. It’s obviously still the same picture, just pixelated.

It’s obviously the same in the same way that p!=p, maybe. The so similar that they’re different enough that even a talented web designer proficient in Photshop couldn’t modify the original and had to get a friend who was better at it to create a whole new image with the intent of making it look like first.

If that’s not transformative, you’re not an anonymous coward. Oh, wait.

Anonymous Coward says:

Re: Re: Re:

Don’t feed them when they are right, I guess!

Seriously, this is a pretty clear case. Just taking the image and effectively printing it at a lower resolution isn’t transformative, it’s duplicative. Worse yet, the image is from a music album cover, and the new use is for a (gasp!) music album cover. There isn’t anything new going on here at all.

He settled because he knew absolutely that he would lose, and lose big. The idea of high statutory liability is exactly to make sure that the risk / reward equation is biased towards the rights owner, not the person copying their work without permission. If the settlement was $50, he would have just paid and moved on. That wouldn’t be fair to the rights owner, would it?

The guy screwed up, he copied the image without permission, and he had to pay up (or else). Attempting to paint this story as anything other than someone caught out because they didn’t understand the law or didn’t give a crap about it is misleading and dishonest.

Anonymous Coward says:

Re: Re: Re:3 Re:

Bullshit. It still would’ve looked enough like Maisel’s photo for Maisel to get his panties twisted and fire off legal threats. Maisel would still play the part of ‘outraged auteur!’ and Baio’s work would still be needlessly under attack. You’re a fool to think it wouldn’t happen in today’s ludicrous climate of copyright law abuse.

Anonymous Coward says:

Re: Re:

I say the second (right hand side, top row) or third (left hand side second row) image is enough difference to be fair use. It is obviously different from a photograph at that point, and can be distinguished at a quick glance from the original if placed side by side.

It was transoformative, look at the Obama picture that was so popular during his campaign. That was nearly the same amount of transformation as this image.

He, Baio, settled because paying 100,000+ is more damaging to him for a project he has made NO money on, than spending 32,500.

Anonymous Coward says:

Re: Re:

At the point where you can look at the image and successfully argue that it could be viewed as something other than Maisel’s picture; probably the fourth line down.

Huh? Are you blind or just nuts? It’s clearly recognizable to at least the 9th image. And it’s infringing all the way to the very last one since it ultimately came from the original. In fact, you could further reduce it to just one color and that would still be infringing since it came from the original.

Anonymous Coward says:

Re: Re: Re:

No. At the point it currently is at, it’s obvious what it’s copied from; you could not argue that it came from anything but the original.

By the fifth line, it could reasonably be claimed that it came from another source; one that used the same colors and similar subject matter. You couldn’t prove it came from the original.

Dave (profile) says:

Re: Re:

At the point where you can look at the image and successfully argue that it could be viewed as something other than Maisel’s picture; probably the fourth line down.

You wish. Nice fantasy that you have there. YOU don’t get to draw the line, a judge would and he would base it on the fair use doctrine. Just because our artist didn’t have the funds to fight it out in court doesn’t mean he would have lost. Let’s see:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
The work is non-profit. It was done for personal education and edification.

2. the nature of the copyrighted work;
It’s an album cover. It has no intrinsic value on it’s own. Those purchasing the album got a free photo out of it.

3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
I’d be suprised if you could honestly say that more than 3% or so of the original was used. Original: Millions of colors. 8-bit version: 4. Original: Very detailed. 8-bit: Implied detail is amazing, but from a technical standpoint it’s like saying a ‘Mona Lisa’ made from bathroom tiles is the same as the real thing.

4. the effect of the use upon the potential market for or value of the copyrighted work.
[s]OMGZ! No onez gonna buy my picture if they can get this 8-bit repro for free!!![/s] If you honestly think this would have any effect on the sales of a blues album that happens to have a picture on it that looks a lot like the 8-bit, then you are honestly delusional.

Seems pretty plain where the line should be drawn. First one in the series is fair use.

Josh in CharlotteNC (profile) says:

Re: Wow

This.

Mike can take the high road and say he doesn’t support the harassment, but what other choice do individuals have? We can’t depend on the government to look out for our interests; lawmakers won’t fix copyright laws when they’re being corrupted by lobbyists from big business. Mob justice isn’t pretty, and it isn’t preferable, but if its the only justice that can be found, so be it.

Anonymous Coward says:

Careful to license music, but not picture . . .

You summed it up already in the article above: “And, yes, he was careful to do all of the proper licensing for the music.”

Without Jay’s original picture, there is nothing to pixilate. Why aren’t visual artists given the same consideration as the musicians here? People need to be careful to do all the proper licensing for the visual art as well as the music.

Joe Publius (profile) says:

There should be a universal symbol to symbolize how weak fair use is becoming, and how that affects culture negatively.

I say everytime a piece is considered questionable for the fair rights defence (which nowadays is everything), a sucker, or popsicle should be included, with the argument that it’s not only transformative, but parodic. If the piece already includes a sucker or popsicle, a banana may be used. Eventually people will get tired of seeing a pixellated Miles Davis eating a Bomb Pop and realize how silly things were getting.

Marcus Carab (profile) says:

Re: Re: Re:2 Re:

Fair use is not as simple as “newsworthy, educational, parody, etc…” – it is a complex legal area that is rarely clear-cut. See, there is this whole idea of transformative works that you seem to be forgetting.

My point is not about effort or time, it is about artistic expression. You seem to contend that pixellation is simple and automatic, but that’s not true: it actually requires numerous artistic choices – enough that, in my opinion, it qualifies as fully transformative artwork, and thus does not require a license. My challenge was made in the hopes that you would realize pixellation is an art form which transforms a subject the same way photography does. After all, surely you believe photographs of sculptures and architecture count as art, right? They require numerous artistic choices – angle, lighting, framing, etc. Well, I contend that pixellation is an equally transformative art, requiring just as significant artistic choices: grid, colour palette, the simplification of complex patterns, which details to omit, etc. And I believe this could withstand rigorous legal analysis.

Unemotional enough for you?

Roger Lancefield (profile) says:

@ Anonymous Coward No. 2 (no doubt there’ll be many more).

The whole point of the “try to pick the line” exercise is that it doesn’t matter where we think the line is, or should be, it’s what a court of law thinks, and that’s why these actions create a chilling effect. People are afraid to even approach the hinterland of others’ work.

Your glib assertion that it’s “probably the fourth line down” just highlights the fact that there is no objective criteria for where “the line” is. That’s why you used the word “probably”. Without firm criteria, people who want to avoid being sued and possibly bankrupted will have to give works such as this (and let’s face it, it’s just a photograph of a bloke playing a trumpet) a berth so wide that the protected work in question effectively ceases to be part of our shared, dynamic culture. This is because no one is permitted to display it, to “creatively” refer to it, or use it in any dynamic, transformative way, except of course the creator him or herself. The rest of use are obliged to “remain silent”, or else be sued. We can look, presumably in reverence, but we can’t touch, or build upon it, or share a copy of it, or in many jurisdictions even make a backup of it, etc. What a selfish, dysfunctional and in the digital age, unfeasible state of affairs that is.

*Real* artists aren’t terrified of transformative works (and it’s certainly one of those, if you can’t see that you need your eyes testing). Real artists don’t absorb and incorporate influences, only to completely proprietize the resulting blend. That’s just greed and gross cultural ingratitude.

Not only are the monopolies created by this dysfunctional law bad for culture in general, they damage the prospects and public image of the creators themselves, at least in the minds of many. I now have a very low opinion of Jay Maisel and will make a point of refusing to contribute to his coffers should the opportunity ever present itself.

Robert Doyle (profile) says:

I think I’m going to copywrong a blank sheet of white paper. Whenever someone makes a blank piece of white paper, I’m going to sue them. You call it the foundation of a product and a basic piece of equipment, I call it the final product. If I hold the copywrong, then who is right?

If you get so pissed at someone using your work, you should ask for FAIR compensation and maybe work with the person to add some credibility to the project and possibly make more money for yourself. This guy wasn’t out to rip anyone off – he missed a piece. I’m sure if douche-bag Maisel just called him up and said “hey, you secured permission from the other artists, why not me?” Baio probably would have said “oh, crap, sorry! Thanks for pointing it out! How can I make this right?”

The guy didn’t make a dime off of this, and you “teaching him a lesson” just makes it less likely that anyone will ever want to use your work for anything, famous or not. Look at Chucky Sheen – he thought he was untouchable….

Gabriel Tane (profile) says:

“It does kind of make you wonder if the $32,500 was “worth it” to have your reputation dragged through the mud.

When you’re a shithead living in a purchased hotel (how many homeless are around?) and can pad your mattress with all the money [cough] ‘earned’ in this way, I guess you can sleep pretty well at night. What use is your reputation? It just gets in the way.

Besides, he can hold his head up high (or use a 12-year-old Philippino slave to hold it up for him) and say “by gosh, I was right!” I just hope he is enjoying ‘being right’… eventually being a soulless, money-grubbing asshat is going to catch up to him. I only wish I could be there to piss in his face when it finally does.

Anonymous Coward says:

I’ve been reading Mike Masnick’s columns for a while now, and it’s clear that under his own personal opinions nothing would ever by a copyright violation ever. This case is an example of extremely blatant copyright infringement. It’s not transformative in the slightest. There isn’t a single part of fair use law that could possibly apply here, and you’d have to be completely ignorant of both the law and results of previous cases to argue otherwise. All this comes down to is some malcontents wanting to rip people off and get away with it by justifying it with the flimsiest of excuses. Mr. Resnick should go read something about intellectual property law and talk to people who understand it instead of just preaching to the masses of online thieves he has gained as fans.

The Devil's Coachman (profile) says:

Re: I will translate your blather for everyone else.

Blah, blah, blah, blah, blah, copyright, blah, blah, blah, blah, law, blah, blah, blah, ignorant, etc.
That sums your drivel up much more compactly, and there is still room for further improvement. Now go run along back to your copyright masters and tell them what a good boy you are, despite the fact that you make no sense and cite nothing to support your nonsense.

The Devil's Coachman (profile) says:

Re: I will translate your blather for everyone else.

Blah, blah, blah, blah, blah, copyright, blah, blah, blah, blah, law, blah, blah, blah, ignorant, etc.
That sums your drivel up much more compactly, and there is still room for further improvement. Now go run along back to your copyright masters and tell them what a good boy you are, despite the fact that you make no sense and cite nothing to support your nonsense.

The eejit (profile) says:

Re: Re:

Dude, you vastly underestimate the time it takes a pixel artist to do their magic; it’s a ton of painstaking work, transcribing the image, then managing it pixel by pixel.

For someone who claims that they understand IP law, you sure don’t have any basis for your rant. This is not copyright infringement, this is a transformative work form an original, and Maisel should be ashamed of himself for lawyering up.

Entitlement culture is killing the US economy, and nothing else. There is no accountability, no oversight, and no progress.

DanZee (profile) says:

Licensed the music, stole the art

I’ve got to agree with a lot of other posters. Maisel was so careful to license the music, but when it came to the art, he just decided to copy it.

You get into trouble when you copy an iconic image like this one. Even if it’s not an exact duplicate, the intellectual property behind it is protected by copyright law.

Now if he had had Homer Simpson blowing the horn on the cover, or Laura Croft, it would have been an obvious parody and protected speech.

But the images are so close, it looks like he simply placed the album cover on a scanner and scanned it, which is copyright theft.

Chris Rhodes (profile) says:

Re: Licensed the music, stole the art

Now if he had had Homer Simpson blowing the horn on the cover, or Laura Croft, it would have been an obvious parody and protected speech.

Not true, that I can see. Homer Simpson and Laura Croft are copyrighted characters as well. Parody would only come into play if he was parodying either Homer or Laura, which he wasn’t.

IANAL, but I think he’d still get sued by some shithead.

Anonymous Coward says:

Re: Licensed the music, stole the art

“But the images are so close, it looks like he simply placed the album cover on a scanner and scanned it, which is copyright theft.”

hay guiz, if you scan in an image it draws a pixel-art version for you! i think they’ve got a little birdie pecking out the pixels in there like the flintstones

Venus (profile) says:

Baio/ Maisel Copyright Infringement

I agree that visual artists should have every bit as much protection under the law as musicians.

Anyone that has ever created anything with their own hands, imagination, and work, loves his creation as if it were his child.

To have someone (in this case, Baio) come along and try to steal your child out from under you and claim that it is his own work, it unforgivable.

It is Theft, plain and simple.

No one could look at the pixelated picture and NOT see that it is Maisel’s photograph. It is right there in front of our eyes.

The Fair Use law wasn’t created so that people like Baio could get away with theft. That would be an injustice.

The copyright laws were created to protect people from having thier beloved work stolen from them.

In this case, justice prevailed… even if the guilty party doesn’t admit guilt.

White Corn says:

Re: Re: Re: Baio/ Maisel Copyright Infringement

“Yes!! Like children.

This is how everyone that *creates* something feels.
It’s personal, it’s love, it’s something that didn’t exist until you created it.”

No, that ain’t how everyone or even how the majority of well adjusted artists feel about their work, at least not among the countless artists I know. Might be something you want to get professional help for since you have trouble separating yourself from your work. You really believe your artwork is a precious extension of your (obviously extremely precious) magical self: childlike, innocent, and needing protection from the dangers of the evil outer world that loves it with an unnatural love coupled with seething jealousy for your talent? Because you are a true artiste? Puke.

Venus says:

Re: Re: Re:2 Baio/ Maisel Copyright Infringement

“Yes!! Like children.

This is how everyone that *creates* something feels.
It’s personal, it’s love, it’s something that didn’t exist until you created it.”

“No, that ain’t how everyone or even how the majority of well adjusted artists feel about their work, at least not among the countless artists I know. Might be something you want to get professional help for since you have trouble separating yourself from your work. You really believe your artwork is a precious extension of your (obviously extremely precious) magical self: childlike, innocent, and needing protection from the dangers of the evil outer world that loves it with an unnatural love coupled with seething jealousy for your talent? Because you are a true artiste? Puke.”

Really? Because EVERY artist that I know feels that way about their creations.

If you don’t feel that way, that tells me a lot about your skill level.

How old ARE you? I’m getting the impression that you are 11.

White Corn says:

Re: Re: Re:3 Baio/ Maisel Copyright Infringement

I am very old but not yet senile to the degree you appear to be.

If you don’t feel that way, that tells me a lot about your skill level.

That is correct, and reflects what I have also observed. I appreciate the compliment. My peers are established artists who have spent their whole lives dedicated to improving their work, which in their opinion means to critically examine everything they produce. They don’t sentimentalize or romanticize their work process, their position as cultural producers, or the results of their labor. Their practice is concerned with more investigating ideas and engaging in the larger conversations that surround art, theory, culture, and so on. In other words, they are serious artists who are interested in exploring and defining their place in the contemporary art’s dialogue.

Really? Because EVERY artist that I know feels that way about their creations.

This is unsurprising based on your comments, but if I were you I’d start hanging out with brighter, more serious, more educated artists. If you are meeting your friends at the craft fairs or on deviant art, perhaps you instead should try to make friends at an art history or contemporary criticism night class at your local college.

Marcus Carab (profile) says:

Re: Baio/ Maisel Copyright Infringement

Charlatan, I say! You make this emotional plea, as though you have some deep and resounding love of the arts, but you completely disregard the fact that Baio’s work was also created with his “own hands, imagination, and work” and that he loves it every bit as much.

If you really respected and cared for the arts as much as you try to sound like you do, you would not be trying to draw a line in the sand between acceptable and unacceptable art. Baio using a photograph as source material is no different from Maisel using the person of Miles Davis as source material. If you stopped waxing romantic and started actually paying attention to (and enjoying) art, you would realize that.

venus (profile) says:

Re: Re: Baio/ Maisel Copyright Infringement

Sorry about the previous comment; emotions are flying high for all of us on this subject.

If I drew a picture, then you (or anyone else) decided to pixelate it and use it without my permission,
I would:

1) Contact you and work something out with you (credit me).
2) Sue you, if you didn’t want to credit me.

Marcus Carab (profile) says:

Re: Re: Re: Baio/ Maisel Copyright Infringement

Okay, well, that sounds a lot more reasonable – though I hope you aren’t planning on reaching out with threats of lawsuits. Did it ever, ever cross your mind to just think “Woah, cool – my work inspired another artist!”

See, that’s what bugs me. Your mind goes straight to permission and credit and lawsuits. I don’t really care how fair or just it might be – it speaks to me of a complete lack of true passion for artistic endeavours. If you can’t feel that simple joy at the amazing continuum of human creativity – which has been built on sharing, copying and appropriating for millennia – then you really are missing the whole point of art.

Anonymous Coward says:

Re: Re: Re: Baio/ Maisel Copyright Infringement

i see

well you’re talking about attribution and theft of credit/plagiarism

just for the record, copying is NOT theft, you can certainly use copying to plagiarize but that doesn’t mean they are the same

taking your example, i could use it without your permission and still credit you, in that case what your actually worried about (credit) was not “stolen” (plagiarized) since it’s still got your name on it

from what i understand, copyright actually DOESN’T have anything to do with protecting art from plagiarism (by plagiarizing it they are claiming the copyright aswell), it’s simply copy-protection/restriction

so if someone DOES try to steal credit for your work, you can’t really sue them for plagiarizing, only for copyright infringement, although people (especially deliberately by big lobbyist corporations) get the two mixed up

long story short, copyright never was intended to protect the attribution of artists, although those same corporations would say otherwise,

which is a big pretty big nail in the coffin for copyright as far im concerned, im a million times more worried about plagiarism/lack of attribution then i am about someone simply copying my work

source: http://questioncopyright.org/faq, also from observation over the years, it just seemed to me that it didn’t offer what artists really wanted

Anonymous Coward says:

Re: Re: plain and simple, my ass.

The usual crap of people not addressing the issues by playing word games. I usually figure you guys do this sort of thing because you know the guy is wrong, that what he did is against the law, and that he paid a license because he figured out he had absolutely no way to win and no desire to fight it to the supreme court.

Don’t get trapped on the words. It makes you look petty.

Dick Troll says:

Teen Heart Throb Andy Baio

Isn’t it funny that those who are fervently anti-copyright also happen to be pimply-faced droolers who slave away all day long at their low-wage low-prestige coding jobs and whine and cry about not getting free stuff on the Internet because they don’t have real lives and don’t have a creative bone in their body. Wah, whah, whah…you’re all a bunch of cry babies.

davnel (profile) says:

Plagiarism it ain't

You folks are missing the point. THe image produced by the artist CAN NOT be generated by simple mechanical copy/pixelation. There are too many differences in the face especially. That image was hand drawn by an extremely talented artist, and very well done at that. There are too many differences between the original image and the details in the face such as the size and position of highlights and shadows, and the size and position of facial elements.

IMHO, the artist has a definite case against the law firm that jumped Mr. Baio for “infringement”. Copying by hand is not infringement.

Mr. Baio should get hold of someone like the EFF to review the case and see if they will help him defend it. He’s right and the law firm (read copyright trolls) is wrong.

Capitalist Lion Tamer (profile) says:

Re: Re:

“Used”? What does that mean?

If you’re saying he simply made a copy of the photographer’s work, that’s one thing. If you’re saying he “used” it as an inspiration, model, whatever for his own piece, that’s quite another.

Your second sentence is just wrong. How does Jay Masiel “lose ownership” of his original by allowing Baio to use his pixel-art homage? He still owns it and can sell/resell/license it however he wants. It just means Jay doesn’t get $32,500 of Baio’s money for doing nothing more than alerting his lawyer(s).

David says:

Maisel is a Thief

He stole $32,500 (not including all the legal costs he caused). The legal system condoned it?and even incentivized it. He is far worse than a bully. He?s a thief. I have no pity for anyone who uses the legal system to steal like this. They deserve far worse than being harassed on their Facebook page. There?s a special place in Hell for people who use the force of government to monopolize the market and then to steal from people and destroy their lives. He may as well have taken the money at gun-point. It would have been less traumatic. There is no moral difference.

Summer Swells Anon says:

If you buy Baio's argument

then I guess you won’t mind me taking your car out for a spin. Just leave the keys on the dashboard. Mr. Maisel has every right to defend his property. Baio knew to ask Mr. Davis’ estate for permission and likely paid a usage fee. He knew he had to. As to why he thought he didn’t need to bother asking Mr. Maisel you’ll need to ask Mr. Baio.

Mr. Maisel has made a lot of money oven his career. Mr. Baio has too. So did Mr. Davis for that matter, All three of them know (knew) the real world value of intellectual properties. Anyone who owns any stock in any company knows it too. If you don’t, educate yourself.

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