A fascinating heart-felt personal account of an image appropriation battle that was settled out of court is given by technologist and blogger Andy Baio, who helped build Kickstarter. Baio has just settled out of court for $32,500 with photographer Jay Maisel who shot the photo on the Miles Davis Jazz classic Kind of Blue.
Baio created a chiptunes version of the album (Kind of Bloop) and while he got permission to play with the original sounds, he didn’t get permission to pixellate (in chiptunes style) the photograph on the album sleeve.
Maisel’s lawyer’s argued that the pixellated cover wasn’t “transformative” and therefore sought damages of 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.”
Baio says his payment wasn’t an admission of guilt and it was just potentially the least expensive way of sorting it out. As part of the settlement, Baio negotiated with Maisel’s lawyers, he negotiated the right to talk about the case and
He shows some intertsing examples of appropriation on his site and the case has fuelled a firestorm of debate, incldung these posts from tech site GigaOm:
“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.”
Matthew Ingram who wrote the original GigaOm piece replied,
“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.”
The debate continues. What do you think?