If Jay Maisel's Photograph Is Original Artwork, Then So Is The Pixelated Cover Of 'Kind Of Bloop'

from the artistic-copying dept

Okay. I'm going to say right from the top that I expect some (not all) photographers are going to read this and get very angry. I'm going to try to explain myself as carefully as possible to make my point clear, because it's not what many people are going to jump to a conclusion about. That is, I am not saying that photography is not art. I believe that photography absolutely is art -- and it's an artform I love. At one time in my life, I spent more time in a dark room than was healthy (perhaps literally, given some of those chemicals), and even pondered pursuing photography as a career. What I am going to say, however, is that it seems like there's a bit of a double standard when it comes to photographers, copyright and fair use on transformative and/or derivative works.

In the time I spend talking about copyright issues, it's always seemed that it was a certain group of photographers who get much more worked up about these things than anyone else. I very much understand why this is. In many cases, photographers are self-employed, and they've come to believe that copyright is their sole way of making a living (I believe they're wrong on this, but they believe it strongly). So anything that takes away from copyright protections -- including such legally enshrined issues as fair use -- are seen as being serious threats. Again, I think this is somewhat short-sighted and wrong, but I understand where the feelings come from.

We recently wrote about Andy Baio's legal fight with Jay Maisel over Baio's use of a pixelated version of Maisel's photograph of Miles Davis that became the iconic album cover for Kind of Blue. When I wrote that, I fully expected that many photographers would come to Maisel's defense, even as much of the internet commentary sided (heavily) with Baio (including some from photographers). There were, of course, also some very thoughtful discussions from some photographers, who disagreed with Baio's fair use analysis and presented reasonable explanations for why they did not believe his use would be covered as fair use. I disagree with their analysis, and think that the fair use case here is quite strong, but fair use is a funny thing and it very often comes down to the whims of the judge on the case.

However, there is one argument I've seen in numerous places by photographers that strikes me as either incredibly self-unaware, or just downright hypocritical. There were a few such comments on our post about it, such as this one that insisted that since you could still recognize the photo, Andy "didn't turn it into something different." Similarly, a photographer by the name of William Beem (and I really don't mean to single out Mr. Beem, but to use his comments as a sample of the general argument) commented a few times on a post by Mathew Ingram about this whole affair, again arguing vehemently that there's no fair use here and that Andy "stole" the image. For example, Beem states the following:

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.

It's this form of argument that I find incredibly hypocritical. The whole "took something that wasn't his." What did Baio (or, really, the guy he hired) do? He copied an image that he saw, but did so in a different and artistic way. What did Maisel do to make his photograph: he copied the scene of Miles Davis in front of him, but did so in a different and artistic way. It's the same thing any photographer does. Part of the very process of photographing is, literally, making a copy, often without a "license" from whatever it is you're making a copy of. Again, that doesn't make it any less art. In fact, the reason that photographs are considered eligible for copyright protection at all (and some have questioned this) is because of the artistic choices in making a photograph: how it was framed, lighting, etc. Yet, in the pixelated image, again, there are similar artistic choices made: how to pixelate the image. How to still make it look good, but within the limitations of the pixelated artform, etc.

Some have, incorrectly, assumed that you could just apply a filter to the original image and get out the pixelated version that Baio used. This is false. You can see, pretty obviously, just from looking at the tie, that the guy who made the pixelated image didn't just Photoshop it, but found a way to recreate the general feel of the original image, but within the artform of pixelated images. You could just as easily argue that Maisel found a way to recreate the general feel of Miles Davis performing, but within the artform of photography. If you don't understand this, you can see if you look at an actual attempt to run a Photoshop filter on Maisel's original, the result is quite different. Furthermore, as David Liu pointed out, a scaled down version of an image is quite different than a hand-pixelated image, and in the case of Kind of Bloop, the image was hand-pixelated, using all sorts of artistic choices by the artist.

What I have trouble with is the argument that this is different than photography. In both cases, you have artists who took something that was out there -- something they did not create -- and then turned it into an artform. In Maisel's case, it was taking the real, physical 3D Miles Davis performing, and turning it into a photograph. In Baio's case, it was taking the Maisel photo, and turning it into an 8-bit image in homage to the original.

Photography, by its very nature, starts with simply copying what's on the other side of the lens. Yes, there is more to it on top of that. There are all sorts of artistic choices to be made about how to copy. How to frame, how to focus, how to light, how to shade, how to dodge, how to print, etc. That's what makes it an artform. But it's incredibly hypocritical to then decry others similarly making a copy, with similar artistic choices, by somehow claiming that that version of copying is "theft." So, photographers, please don't be so quick to decry other artforms that also start with copying, but which also then apply additional artistic choices. If Jay Maisel's photograph of Miles Davis is unique and original artwork (and I believe it is), then so is the cover of Andy Baio's album.

Filed Under: 8-bit, andy baio, art, copying, copyright, culture, jay maisel, photography, pixelation

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...

Filed Under: 8-bit, andy baio, chilling effects, copyright, fair use, jay maisel, miles davis