PetaPixel

How Much Pixelation is Needed Before a Photo Becomes ‘Transformed’?

In 2009 Andy Baio of Waxy.org — founder of Upcoming.org and former CTO of Kickstarter — created Kind of Bloop, an 8-bit tribute album to the best-selling jazz album of all time, Kind of Blue by Miles Davis. While Baio meticulously licensed all the music he used to create the album, he released a pixelated version of the original album cover (top, second from left) without licensing it, believing it was different and low-res enough to be considered fair use. He was then sued by the photographer, Jay Maisel, who “felt violated to find his image of Miles Davis, one of his most well-known and highly-regarded images, had been pixellated […]”.

Although he maintains that his use of the image didn’t violate any copyright, Baio decided to settle out of court, paying Maisel $32,500 to avoid an expensive battle in court. He published a blog post today voicing his thoughts on this ordeal and on the topic of fair use. After discussing some criteria that define fair use, he writes,

In practice, none of this matters. If you’re borrowing inspiration from any copyrighted material, even if it seems clear to you that your use is transformational, you’re in danger. If your use is commercial and/or potentially objectionable, seek permission (though there’s no guarantee it’ll be granted) or be prepared to defend yourself in court.

Anyone can file a lawsuit and the costs of defending yourself against a claim are high, regardless of how strong your case is. Combined with vague standards, the result is a chilling effect for every independent artist hoping to build upon or reference copyrighted works.

He also published the above images, asking where the line should be drawn between copyright infringement and fair use. It’s an interesting thought experiment. Looking at the most pixelated image, which is literally four colored squares, it’s hard to believe anyone would consider it a violation of the photo’s copyright. If that’s the case, then at which pixelation step does it become fair use?

Kind of Screwed (via Boing Boing)


Image credit: Photograph by Jay Maisel


 
  • Gereon

    Come on people, It is not only based on somebody else’s work, it is an exact low res representation of it.

    Is it really so hard to walk in your own freakin shoes?

  • http://www.petapixel.com Michael Zhang

    Here’s another quote from the post:

    “Before the project launched, I knew exactly what I wanted for the cover — a pixel art recreation of the original album cover, the only thing that made sense for an 8-bit tribute to Kind of Blue. I tried to draw it myself, but if you’ve ever attempted pixel art, you know how demanding it is. After several failed attempts, I asked a talented friend to do it.”

  • Hysyanz

    the last 2 images i think are fair use. you might be able to get away with the third to last image but it is still a bit recognizable.

  • John

    Last two, on their own, might be OK. But shown in this context, they are still derivatives. License the music, screw the photographer. It comes back to bite, sometimes.

  • Gereon

    So somebody else copied it (low res).

    When i was around eighteen, i did a painting of a Miles Davis photograph using only wine red and neon green acrylic colors mixed with cast.
    It’s still nice and it’s still hanging in my parents living room…

    …but it remains a copy of a photograph – no matter what I did with it!

    If it wasn’t for the original artist, this special piece wouldn’t exist.
    If I would ever use it for something else than my parents’ home, i would ask the photographer.

    Most likely just out of respect…

  • Anonymous

    I guess a lesson is that if you want to publicly use a copyrighted work, you need to be ridiculously clear in the fair use.  Even then, it’s polite to ask the photographer or whoever owns the copyright on the original work. Or take an original photo and pixelate your own photo.

  • Anonymous

    The sad thing is that if he had got a lookalike and reposed the photograph so it looked even closer to the original, it would have been OK.. 

  • Brian

    It didn’t look like it had been transformed very much from the original, so I found it hard to buy his argument. Looks like a Simpsons character.

  • http://www.facebook.com/profile.php?id=1469663692 Jason Heilig

    No you’re right. The correct answer here, clearly, was to sue someone who wasn’t likely making much off of the project in the first place, for far more money than he was every going to make from it.

    In the end, he settled because it would cost him less than the defense, which he likely would’ve won. Jay Maisel, after his own lawyer costs, comes off as an asshole, for what likely wouldn’t even buy him a new, very inexpensive car. Way to sacrifice your integrity Jay!

    I’m willing to admit that the work is obviously derivative, that’s not really in dispute. The question comes down to the reaction from the original artist. Suing each other is just about as futile as it gets. Artist on artist crime, really?

    I’ve met Jay Maisel before when he spoke at my school in MA. I wasn’t impressed, I’ll be honest. He was conceited, and amazingly boring. Listening to him for well over 2 hours was hard to handle. That said, I didn’t expect him to turn out to be money hungry and vindictive.

    This was clearly an abuse of power. An artist with more money, using it to bully around someone else. Essentially Jay Maisel used his own fame, and his law firm to extort money from someone who they knew couldn’t possibly afford to adequately defend a case they’d likely win.

    To quote someone from some other random blog, Jay Maisel is the Lars Ulrich of photography.

  • Ranger9

    Actually, no. I remember several years ago where the estate of a big-name photographer (Steichen?) was able to recover against an art director who had instructed a photographer to re-create the original image as exactly as possible. The AD’s instructions, plus a side-by-side comparison of the images, were enough to prove to the court that the knockoff was a “derivative work” — which it obviously was, since the AD had to tell the photographer to reproduce it rather than thinking up his own idea.

  • Rob

    Cannot say it any better then this past comment => “Jay Maisel, after his own lawyer costs, comes off as an asshole, for what likely wouldn’t even buy him a new, very inexpensive car. Way to sacrifice your integrity Jay!”
    Seems pretty clearly fair use to me and there are a lot of other examples where people have been fine with similar usage.  There is no consistency in the decisions that go to trial.  I believe Jay would have probably lost but that’s by no means certain and the larger bank roll has to win – welcome to america :-/.

  • lloyd

    petapixel, you better watch out, i hear a C&D coming

  • Jostie

    I think that this sums up the current attitude towards photography. ‘Baio meticulously licensed all the music he used to create the album’ but didn’t think that he needed to do the same for the image.

  • http://www.worksplash.com Oscar

    Hi Gereon,

    I guess you didn’t a copy. What you did was an interpretation.

  • Dave R

    Say what you want about Jay Maisel but he didn’t get to be rich and famous by letting others utilize his works for their profit.  The licensing fee would have probably been a lot cheaper than the settlement.  99% of professional photographers would have pursued the same course of action.

    I agree with Jostie about that being prevailing attitude to photography.  I’ve had some of my own photos ripped off by a Russian and Chinese websites.  Unfortunately, nothing I can do about those.  Just glad they were cellphone images.

  • Chris

    I’m no copyright expert, but I don’t see why he distinguishes his bit reduction of the music from his reduction of the image.  He obviously thinks an 8-bit version of Davis’s music is still Davis’s music, but for some reason a pixel reduction of the image is a brand new work.  Using his reasoning from the image on the music, it’s rather clear that beeping with some amplitude cutoff at 60 hz would bear almost no resemblance to the original, so the question there is the same as the question about the image (yet he felt the need to license the music).

  • Anonymous

    It’s a little silly to think you can license the music, but not the art.
    I’m a photographer as well. Every photographer I know would sue if you
    took their work and tried to profit from a derivation of it. If you want
    to make a tribute to the guy, create your own 8-bit pixel rendering of
    him, drawn yourself. Don’t take some photo I took the time to setup,
    work my butt off to be able to do, setup, touch up, etc and then say,
    “Oh, I can just make a low-res photo thing, and profit.”

    This is not about being money-hungry. This is about protecting yourself
    because time and time again, someone else likes your idea, doesn’t think
    you’re worth contacting, makes a copy to try to make money while you
    don’t get credit. It happens in music, software patents, etc.

    He should have contacted the photographer first. That’s not an opinion,
    that’s a fact. I hope anyone against it doesn’t come up with some great
    concept, works at it, and then has it stolen and says “Oh, well, they
    paid me tribute by copying. I’m happy they made money and I didn’t!” Tell your family that at the end of the day that others are making money off you. I dare you.

  • Matt Needham

    Is it that hard to ask permission?  Could have saved a lot of trouble and money.

  • John

    It’s a deriviative work. Still covered under copyright law. Jay Maisel did the right thing.

    “A derivative work is a work based on or derived from one or more already existingworks. Also known as a “new version,” a derivative work is copyrightable ifit includes what copyright law calls an “original work of authorship.” Any workin which the editorial revisions, annotations, elaborations, or other modificationsrepresent, as a whole, an original work of authorship is a derivative workor a new version.A typical derivative work registered in the Copyright Office is a primarilynew work but incorporates some previously published material. The previouslypublished material makes the work a derivative work under copyright law.To be copyrightable, a derivative work must differ sufficiently from the originalto be regarded as a new work or must contain a substantial amount of newmaterial. Making minor changes or additions of little substance to a preexistingwork will not qualify a work as a new version for copyright purposes. The newmaterial must be original and copyrightable in itself. Titles, short phrases, andformatting are not copyrightable.” Here’s the kicker:”Only the owner of copyright in a work has the right to prepare,or to authorize someone else to create, a new versionof that work.”Straight off the copyright.gov website.

  • John

    It’s a deriviative work. Still covered under copyright law. Jay Maisel did the right thing.

    “A derivative work is a work based on or derived from one or more already existingworks. Also known as a “new version,” a derivative work is copyrightable ifit includes what copyright law calls an “original work of authorship.” Any workin which the editorial revisions, annotations, elaborations, or other modificationsrepresent, as a whole, an original work of authorship is a derivative workor a new version.A typical derivative work registered in the Copyright Office is a primarilynew work but incorporates some previously published material. The previouslypublished material makes the work a derivative work under copyright law.To be copyrightable, a derivative work must differ sufficiently from the originalto be regarded as a new work or must contain a substantial amount of newmaterial. Making minor changes or additions of little substance to a preexistingwork will not qualify a work as a new version for copyright purposes. The newmaterial must be original and copyrightable in itself. Titles, short phrases, andformatting are not copyrightable.” Here’s the kicker:”Only the owner of copyright in a work has the right to prepare,or to authorize someone else to create, a new versionof that work.”Straight off the copyright.gov website.

  • John

    It’s a deriviative work. Still covered under copyright law. Jay Maisel did the right thing.

    “A derivative work is a work based on or derived from one or more already existingworks. Also known as a “new version,” a derivative work is copyrightable ifit includes what copyright law calls an “original work of authorship.” Any workin which the editorial revisions, annotations, elaborations, or other modificationsrepresent, as a whole, an original work of authorship is a derivative workor a new version.A typical derivative work registered in the Copyright Office is a primarilynew work but incorporates some previously published material. The previouslypublished material makes the work a derivative work under copyright law.To be copyrightable, a derivative work must differ sufficiently from the originalto be regarded as a new work or must contain a substantial amount of newmaterial. Making minor changes or additions of little substance to a preexistingwork will not qualify a work as a new version for copyright purposes. The newmaterial must be original and copyrightable in itself. Titles, short phrases, andformatting are not copyrightable.” Here’s the kicker:”Only the owner of copyright in a work has the right to prepare,or to authorize someone else to create, a new versionof that work.”Straight off the copyright.gov website.

  • John

    It’s a deriviative work. Still covered under copyright law. Jay Maisel did the right thing.

    “A derivative work is a work based on or derived from one or more already existingworks. Also known as a “new version,” a derivative work is copyrightable ifit includes what copyright law calls an “original work of authorship.” Any workin which the editorial revisions, annotations, elaborations, or other modificationsrepresent, as a whole, an original work of authorship is a derivative workor a new version.A typical derivative work registered in the Copyright Office is a primarilynew work but incorporates some previously published material. The previouslypublished material makes the work a derivative work under copyright law.To be copyrightable, a derivative work must differ sufficiently from the originalto be regarded as a new work or must contain a substantial amount of newmaterial. Making minor changes or additions of little substance to a preexistingwork will not qualify a work as a new version for copyright purposes. The newmaterial must be original and copyrightable in itself. Titles, short phrases, andformatting are not copyrightable.” Here’s the kicker:”Only the owner of copyright in a work has the right to prepare,or to authorize someone else to create, a new versionof that work.”Straight off the copyright.gov website.

  • http://www.facebook.com/profile.php?id=1469663692 Jason Heilig

    A club in Vegas used one of my photos off an old website for a flyer. They cropped it horribly to remove the watermark, and turned it into black and white so it would be cheaper to print.
    Was I annoyed? Hell yeah.

    Did I sue them? Hell no. It wasn’t worth my time. I’m not vindictive, and they weren’t making enough money off of it’s use to warrant any legal action. One night for an underground club making $5 a person isn’t a threat to me.

    In comparison, Jay Maisel suing an artist who put together a product using Kickstarter isn’t that far off. They employed the same tactics the RIAA does against song copyright. Use your big name and power to intimidate someone into a settlement. In no way whatsoever did the use of this image pose a threat to Jay.

    A copyright lawsuit from someone like Jay, I would understand if it were about maintaining the integrity of the original image. That’s not what this was about, and I don’t think you can argue that it was. His motivation was purely greedy, and his reputation will be forever hurt by it.

    The backlash of pro-copyright photographers is entertaining to me though. It comes off as mighty self righteous. 

    We’ve all had photos stolen. None of us are special for pointing it out. No, you’re not a victim. It’s the digital life, and it happens. 

  • http://www.facebook.com/profile.php?id=1469663692 Jason Heilig

    You couldn’t be more wrong, in any form.
    Considering Miles Davis is dead, exactly how would an artist create a rendering of him in 8bit form, from real life? Any artists who choose to render subjects that are deceased are going to be influenced by photography. That’s the nature of capturing an image in the style we do, it’s an exact memory, with some interpretation of course.

    Also, 8bit art is not just using the pixelate tool in photoshop over and over, it’s a different process. So disregarding it as a low-res photo thing just shows your own ignorance towards the process, which discredits your opinion that it’s purely derivative. 

    It is about being money hungry. Thats not an opinion, that’s a fact (should I pay you for copying that by the way?). The integrity of the original work wasn’t hurt whatsoever by this use. The use itself didn’t cost Jay any lost time, or sleep, or anything. I’ve said it before. This 8bit image was not a threat to Jay Maisel in any way. His only possible motivation is money. Sure, he may have convinced himself it was about artistic purity, but that’s just to make sure he can sleep at night.

    Also, your emotional argument involving family falls short. The actual conversation would be more accurate if you were to say, “Hey, I know we pull in millions of dollars a year doing what we love, but this guy vaguely used a my work as inspiration for a project that will make him probably 10 grand. Should we sue him for multiple six figures?”

    It’s a form of censorship. It’s a form of extortion. It’s a real sign that people like Jay, and yourself, are completely missing the boat when it comes to a new artistic movement out there. It’s a new way of thinking that seems to frighten a lot of self proclaimed artists.

    I present the following video as a case study. If this artist had to pay the kind of money Disney would likely want for use, we simply wouldn’t have his work around. Without the source material, the music would lose it’s impact. In the same way, Kind of Bloop’s cover loses it’s impact without the appropriate cover facsimile.

    http://www.youtube.com/user/Fagottron#p/u/0/t_htoSaQFf4

  • http://www.facebook.com/profile.php?id=1469663692 Jason Heilig

    You couldn’t be more wrong, in any form.
    Considering Miles Davis is dead, exactly how would an artist create a rendering of him in 8bit form, from real life? Any artists who choose to render subjects that are deceased are going to be influenced by photography. That’s the nature of capturing an image in the style we do, it’s an exact memory, with some interpretation of course.

    Also, 8bit art is not just using the pixelate tool in photoshop over and over, it’s a different process. So disregarding it as a low-res photo thing just shows your own ignorance towards the process, which discredits your opinion that it’s purely derivative. 

    It is about being money hungry. Thats not an opinion, that’s a fact (should I pay you for copying that by the way?). The integrity of the original work wasn’t hurt whatsoever by this use. The use itself didn’t cost Jay any lost time, or sleep, or anything. I’ve said it before. This 8bit image was not a threat to Jay Maisel in any way. His only possible motivation is money. Sure, he may have convinced himself it was about artistic purity, but that’s just to make sure he can sleep at night.

    Also, your emotional argument involving family falls short. The actual conversation would be more accurate if you were to say, “Hey, I know we pull in millions of dollars a year doing what we love, but this guy vaguely used a my work as inspiration for a project that will make him probably 10 grand. Should we sue him for multiple six figures?”

    It’s a form of censorship. It’s a form of extortion. It’s a real sign that people like Jay, and yourself, are completely missing the boat when it comes to a new artistic movement out there. It’s a new way of thinking that seems to frighten a lot of self proclaimed artists.

    I present the following video as a case study. If this artist had to pay the kind of money Disney would likely want for use, we simply wouldn’t have his work around. Without the source material, the music would lose it’s impact. In the same way, Kind of Bloop’s cover loses it’s impact without the appropriate cover facsimile.

    http://www.youtube.com/user/Fagottron#p/u/0/t_htoSaQFf4

  • Anonymous

    You’re making my point. He has to use someone else’s photograph if the person is deceased. That means he has to use someone else’s work or find something in the public domain to base his interpretation off of. The musician is deceased, but is there an estate that can sue for using his likeness as well? That happens in many cases years after the person has died, especially celebrities.

    I know how to make 8-bit art. I didn’t mean that was his particular process, though it is one (low-quality) method. How the person did it is again irrelevant. I didn’t mean that he took the actual digital file of the photo to do it over and over, any process resembling the art is how it’s meant to be a derivative. He didn’t use a vague memory. He used the exact piece of art. He can’t claim otherwise.

    My emotion argument is still valid. The amount of money is irrelevant as well. I could have made absolutely nothing on my photograph. I could photograph my dog. If someone uses it to create at work to make money on it without licensing, just as taking someone else’s music without licensing, I can sue for damages. On your point, why does it matter what I’m pulling in or what he’s pulling in or that he’s a vague artist. Copyright still persists and doesn’t have to do with oh well, you weren’t doing much with it anyway.

    People get fair-use if they are displaying their art publicly to show
    the artistic merit, but if they are putting out commercial CDs, that’s a
    different story. Showing a 1-off artistic piece based on someone else’s
    work does qualify as ok in certain regards. Just like using open-source
    software and GPL-licensed work is ok to alter and use yourself for
    personal-use; however, once you distribute your work commercially, you
    HAVE to pay for licensing to the original creator.  Musicians, artists, software creators, everyone has a right to own their creations and that’s why they’re protected.

    For your video, if he’s distributing it as a portfolio piece of his talents and not making money, he ‘could’ use it like he is just fine. It’s fair-use; however, Disney could still come after him for using copyrighted materials. They won’t because there is probably not money in it, but again, it’s using copyrighted materials so they have the opportunity to if they so chose.

    Is the photographer a money-grubber? I don’t know, and I don’t care. He could be. I had to come and write about copyright law because people seem to toss it aside based on arbitrary reasons. It’s there to protect and once you toss it away even for small cases, you actually hurt the future of artists more than what you refer to as censorship. Any ‘new artistic movement’ would die off once all these artists realized someone else could easily make a life on their hard work.

    You’ve spent some time blasting my opinion, but you still don’t know
    copyright law. It’s not a hard concept. He could have avoided all the
    problems if he actually asked the photographer, just like he apparently ‘meticulously’ did for the
    music, for the rights. He just didn’t treat a photographer in the same regard as a musician it seems.

    Just because you didn’t feel a threat once someone stole your image isn’t the point. It’s not about being self-righteous either. Companies, individuals, artists, programmers and so on will always need the protection through copyrights, trademarks and patents. There is no future thinking in believing that if we just did away with copyright, that that is the only way for art to advance.

    Now I said “could have” avoided. I don’t know the photographer, so maybe
    he does see it as a money opportunity, but that doesn’t mean he’s wrong
    with the law. Maybe if he was asked, he would have wanted a ridiculous
    licensing fee beyond the industry standard (see software like
    fotoQuote). Then Baio could have found another image from another photographer that was a lot happier about it. You still have to ask.

  • http://www.facebook.com/profile.php?id=1469663692 Jason Heilig

    I guess I’ll work from the bottom up on this one, since that’s one long post.

    Jay Maisel asked for 150k per infraction. So thats each time the album was downloaded. Not only is it absurd, but it points directly to the strategy that he and his law firm were using, overwhelm somebody who has no hope of fighting back.

    I would’ve loved to see this go to trial, and I’d easily place a bet on Baio winning, but that was never an option. Jay Maisel had a bigger firm, with bigger backing and used that force to make sure it never went that far. It was all about the money, it’s not a point that’s even questionable. If it was about preserving some artistic integrity for the original image, trying to ruin someones life and force them into bankruptcy isn’t exactly a good way of going about doing that.

    Arguing the merits of copyright is fine, but to pretend that Jay Maisel is some hero protecting his own iconic work in this situation is just being silly.

    This is a problem with society in general, things like this should be determined in the courts, but because the deck was so stacked against him via money and power, it just never happened. The reason this didn’t go to the courts had nothing to do with the merits of the case, and everything to do with what is simply by definition, extortion.

    He didn’t treat the photographer the same way he treated the musicians, and I’ll agree that it’s unfortunate. From what I can gather this is through ignorance, not some willful desire to screw over Jay Maisel.

    The musician in the video I posted sells his songs online through his website, a buck a song. Apparently he’s been doing it for a while, I’m guessing it qualifies as fair use, and in my opinion it does. He’s also from Australia though, and I have no clue how international copyright law works, I’ll admit that. It is however, very clearly fair use in my mind.

    Your emotional argument has no actual parallel to the case we’re talking about, so at least in this context, it makes little sense. It needs to be put in the correct context, in order for it to actually apply. That said, a purely hypothetical emotional argument is a bad idea to begin with in these situations.

    The copyright argument I tend to push to the side in this for two reasons. I believe it was fair use, and the biggest uproar in regards to this story is more about an abuse of power than anything else. Ego had a lot to do with this case, I’d bet on it, and fine artists definitely tend to have those. Trust me, Jay Maisel has one, and a lot of others do as well.

    As note to copyright however, the image being part of a commercial product does not disqualify it from being fair use. This was ruled on by the Supreme Court in a case involving 2 Live Crew.

    An argument can clearly be made that this album cover was satirical.

    I don’t actually see how anyone can not view this as fair use, but it’s still not why I find this story so frustrating.

  • http://www.facebook.com/profile.php?id=1469663692 Jason Heilig

    I guess I’ll work from the bottom up on this one, since that’s one long post.

    Jay Maisel asked for 150k per infraction. So thats each time the album was downloaded. Not only is it absurd, but it points directly to the strategy that he and his law firm were using, overwhelm somebody who has no hope of fighting back.

    I would’ve loved to see this go to trial, and I’d easily place a bet on Baio winning, but that was never an option. Jay Maisel had a bigger firm, with bigger backing and used that force to make sure it never went that far. It was all about the money, it’s not a point that’s even questionable. If it was about preserving some artistic integrity for the original image, trying to ruin someones life and force them into bankruptcy isn’t exactly a good way of going about doing that.

    Arguing the merits of copyright is fine, but to pretend that Jay Maisel is some hero protecting his own iconic work in this situation is just being silly.

    This is a problem with society in general, things like this should be determined in the courts, but because the deck was so stacked against him via money and power, it just never happened. The reason this didn’t go to the courts had nothing to do with the merits of the case, and everything to do with what is simply by definition, extortion.

    He didn’t treat the photographer the same way he treated the musicians, and I’ll agree that it’s unfortunate. From what I can gather this is through ignorance, not some willful desire to screw over Jay Maisel.

    The musician in the video I posted sells his songs online through his website, a buck a song. Apparently he’s been doing it for a while, I’m guessing it qualifies as fair use, and in my opinion it does. He’s also from Australia though, and I have no clue how international copyright law works, I’ll admit that. It is however, very clearly fair use in my mind.

    Your emotional argument has no actual parallel to the case we’re talking about, so at least in this context, it makes little sense. It needs to be put in the correct context, in order for it to actually apply. That said, a purely hypothetical emotional argument is a bad idea to begin with in these situations.

    The copyright argument I tend to push to the side in this for two reasons. I believe it was fair use, and the biggest uproar in regards to this story is more about an abuse of power than anything else. Ego had a lot to do with this case, I’d bet on it, and fine artists definitely tend to have those. Trust me, Jay Maisel has one, and a lot of others do as well.

    As note to copyright however, the image being part of a commercial product does not disqualify it from being fair use. This was ruled on by the Supreme Court in a case involving 2 Live Crew.

    An argument can clearly be made that this album cover was satirical.

    I don’t actually see how anyone can not view this as fair use, but it’s still not why I find this story so frustrating.

  • Pauljmoleiro

    I hope I never get as conservative with copyright as Jay Maisel and most of this blogs community is. We are all standing on the shoulders of giants if you truly think that you create art in a vacuum that is void of influence from others you are kidding your self.  

  • Anonymous

    Sounds like we actually don’t disagree on a lot of things honestly. I think this just sparks emotional parts overall on both sides. Myself for dealing with infringements and people assuming they can ‘borrow’ and your history with this photographer and what you know about him.

    Maybe he could have gotten away with parody, but that usually works for news or editorial outlets, not as much with commercial. Always exceptions to the rules though. If you’ve ever designed anything on sites like Cafepress, you’d get used to being shut down a lot even though you did something satirical. You can get away with it with politicians, but not as much with companies, brands and celebrities.

    The per infraction thing is not unusual. If someone used an illegal image for a book cover, each sale counts as an infraction and you can claim since licensing is actually done on print runs and such. The music.. may be a stretch, though I assume he claimed the art was downloaded as well. This can happen with software sales, product sales and such as well. The amount though… I don’t like lawyers to begin with so not surprised and definitely exorbitant. However, as I said, per infraction is still kind of standard.

    Copyrights are around for protection, and I agree that both sides can
    abuse it. Lawyers escalate all of these suits (when don’t they?). I
    would have found it interesting actually if it went to court to see if
    they actually saw it as parody. In any case, I would still not bother
    until I contacted the artist just like the musicians in this case.
    Everyone has to protect themselves.

    “Arguing the merits of copyright is fine, but to pretend that Jay Maisel
    is some hero protecting his own iconic work in this situation is just
    being silly.”

    Yeah, as I said, I have no idea about the photographer. I don’t want to make anyone look like a hero or goat. Artists do have egos, but anyone creating something will. It’s a certain pride you take in making something like music or art, though some people will take it too far. You have to look at it on the other side too for more typical cases. You may not have cared about a photo of yours, but I have had photos taken that I put a lot of time, effort to scout areas, get my equipment and go back to… Then someone takes it, uses it an ad for their bar for example to promote something. I don’t feel honored in that regard. It is my right to go after them and ideally (and this is what your point is) go after them for the correct licensing costs for using it if they had asked. The bullying around with money is extreme. I think the case about the photographer’s ego and attitude is another issue. I did have a friend who had her site designed by someone. They used stock images they did not purchase a license for. Getty just came after her, years later, and sought damages. However, they sought damages closer to a few hundred for what the licensing would have been over that period of time.

    I did see that afterward Baio asked what licensing would have been, and he wouldn’t have allowed it. It’s a shame because he actually wouldn’t have looked so bad. However, another potential photo should then have been sought after, and that’s what I consider the underlying problem, emotional arguments aside. You have to go the source. I just don’t want to see it go the other way where people think it’s ok to never ask and just go ahead and take a chance on taking someone else’s art and artists who are making a living really get hurt.

    Anyway, no hard feelings. Just a shame it all came to this in the end.

  • Anonymous

    It’s not so much being conservative (maybe in his case), but you still should ask. Even Weird Al asks and we all know his stuff is parody and will fall under that in use. Art is definitely influential, of course. That’s not what people are denying here. This is almost a duplicate in another form, used commercially. There is a difference, but we won’t know how it would have turned out in court because of how it was handled on both sides.

    Jay reacted extremely, but as I pointed out in another post, Andy could have found another photographer even willing to just say “give me credit” in some kind of written agreement, no monetary exchange, and none of this would have happened. I’ve done that with people myself. This is just an unfortunate wake-up call to everyone how extreme a case can be and to always cover yourself.

  • Buck

    Copyright law is broken.

    http://www.everythingisaremix.info/

  • Julius Sowu

    Sorry to swerve off topic, but must say the sequence itself above is  in itself art I would not mind placing on my wall in poster form.

    Again sorry but had to point that out.

  • Julius Sowu

    Sorry to swerve off topic, but must say the sequence itself above is  in itself art I would not mind placing on my wall in poster form.

    Again sorry but had to point that out.

  • Julius Sowu

    Sorry to swerve off topic, but must say the sequence itself above is  in itself art I would not mind placing on my wall in poster form.

    Again sorry but had to point that out.

  • Julius Sowu

    Sorry to swerve off topic, but must say the sequence itself above is  in itself art I would not mind placing on my wall in poster form.

    Again sorry but had to point that out.

  • Tom

    Not the first time Andy Baio has been caught pirating. He was sued formerly by a record company for hosting Beatles music.

    * Baio has long history of copyright theft & evading law. His own words: http://bit.ly/kGuakT  

    He’s hardly a penniless artist trying to scrape a living.

    * Source Russian Photos on Twitter

  • Tom

    Not the first time Andy Baio has been caught pirating. He was sued formerly by a record company for hosting Beatles music.

    * Baio has long history of copyright theft & evading law. His own words: http://bit.ly/kGuakT  

    He’s hardly a penniless artist trying to scrape a living.

    * Source Russian Photos on Twitter

  • MarcW

    The fact that neither of you knows what “per infringement” means – it has a specific legal meaning and neither of you is using it correctly – should tell you both that your whole argument is pointless. You can argue the moral underpinnings of copyright all you want – your opinion is as good as anybody’s. But you demonstrably don’t understand the law so you can have no idea who was legally in the right.

  • Onesurreal

    One could make the case for the pixelated images on the last row. This is a long post but as an artist I must weigh in. I have had others claim my work as their own…I felt outraged and violated. I have given permission for others to use my photographs as muse for their paintings without compensation. I have seen my work posted on random blogs and I just wish they would give photo credit when my image is recognizable. If they are going to market something with my image then the test for me as always been how “identifiable” it is of the original. For example Jeff Coons, who I think is a tool, was sued by a photographer who took a picture of a man and a woman holding a bunch of puppies. Jeff commissioned a wooded sculpture depicting the same scene and was sued, lost and  ordered to destroy it. I thought that that was no in any way interfering with the value of the original. I am only concerned with those directly ripping off my images.

  • guy

    either way, it is artistic I feel… I think he could have won if it weren’t for money, and he had gone under the artistic interpretation or even parody law