What Screwing Artists Kind Of Does

by Christopher Paul on June 24, 2011

This was a fast moving story yesterday so there’s a good change you’ve heard about Andy Baio. In case you don’t. he was sued by Jay Maisel for copyright infringement when Baio transformed his picture of Miles Davis into 8-bit pixel art for a music project he was working on in his spare time. Maisel threatened the usual $150,000 per copy and the typical lawyers fees they tack on it. Baio settled — admitting no guilt — but paid up a hefty $32,500 for his hobby art and can never use the art again.

Let’s ignore for a moment, it’s all over the internet in digital form thanks to the controversy.

Andy felt he had a very strong fair use case but didn’t have the time or money to fight it (very typical in these types of David v. Goliath copyright arguments). He used his very popular blog, waxy.org to explain his thoughts on why his project, Kind of Bloop, passed the fair use tests set by the courts. Baio goes through each of the four tests and explains how he feels he meets those standards. I think it’s a superbly written argument in favor of fair use.

The internet reacted badly to this news. As to be expected, thousands of people lashed out at Maisel, who received so many negative comments on his Facebook page, he shut it down. Twitter was all a flutter about fair use yesterday and I even commented on them without even understanding why. It wasn’t until I started reading my RSS feeds in Reeder for Mac (shameless plug), that I figured out why the debate was raging.

So today, TechDirt — which you know is one of my favorite blogs — has an even longer write up of Baio’s situation but, more specifically, disucsses the impact to art, free speech, fair use standards, damage to reputation, and (effectively) a cost/benefit analysis on Maisel’s legal action on someone who is a big fan of Miles Davis and the cover to his album (which means he’s effectively a fan of Maisel’s photo).

Mike Masnick sums it up in the end:

“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.”

It really is a shame and not what the founding fathers intended when they created copyright; its the exact opposite.

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

MarcW June 30, 2011 at 5:36 PM

Maisel has, probably, more money than Baio, but this is NOT “David v. Goliath.” Baio has sold at least one company and has held high positions at several well-capitalized startups. He is not missing any meals because of this and he certainly could have fought. He didn’t want to because he knew he’d lose.

SoItsComeToThis July 4, 2011 at 12:52 AM

I think it’s a David V. Goliath situation because the deck is stacked against the accused in these types of cases. When the courts and juries have ruled that each offense (which can be replicated so easily in the digital world) could cost $150,000, those who are sued face the threat of losing millions of dollars. Selling a company or doing well in another doesn’t make the targeting of Baio less egregious. That’s a red herring argument and doesn’t make sense. I could easily turn it around, too.

And your assumption on Baio losing is slightly presumptuous of you since I see nothing but fair use in the pixelation of the cover — and for several reasons, too. But you’re a photographer, so I can assume you’re biased here.

In spite of the payment, made to Maisel, he clearly lost because of all the bad press. His name is tarnished and he looks like a petty bully. And considering Baio’s art is being plastered on Maisel’s home (or across from it), it shows the public could have decided in favor of transformative art.

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