PetaPixel

Copyright Infringement and the Culture of Suing Artists Into Submission

Andy Baio has some experience with copyright infringement, especially where iconic photographs are concerned. In case you didn’t read our previous coverage on the matter, his story goes something like this: in 2009, he put together an 8-bit version of Miles Davis’ album “Kind of Blue” called “Kind of Bloop,” and for the cover art he had a friend create a pixel-art version of Jay Maisel‘s famous cover photo.

Maisel wound up suing Baio for over $100,000 for the infringement, and despite an offer for free representation, potential court costs still forced Baio to settle out of court for $32,500. Baio wound up writing a long blog post about the matter, and now, a couple of years later, he’s expanded on that post in the above talk he gave at Creative Mornings in Portland.

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The talk is called “The New Prohibition,” and it discusses the myth of the original idea, the complexities of fair use copyright law, and the culture of suing artists in order to force them to settle out of court, no matter how strong their case is.

Obviously Baio has an axe to grind in this matter (or about 32,500 of them), but he’s not the only person who has believes that there is no such thing as pure originality, and that being inspired by other’s work — or even borrowing it — is just “the way things are.”

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Baio’s original blog post ended up stirring up a lot of support for him and animosity for Maisel, but that was never his intent. He simply wanted (and wants) to warn artists of the dangers and complexities of copyright infringement because his settlement, unlike most, didn’t include a confidentiality agreement.

To find out more about Baio’s particular copyright woes and hear his opinion on the matter, either check out the talk at the top or click here to read the original viral blog post.

(via Boing Boing)


 
  • Dean Forbes

    No sympathy for Baio. Copyright protection, to use his words, “the way things are.”

  • http://www.bobcooleyphoto.com/ bob cooley

    He knew enough to secure the rights for the music, but didn’t bother to secure the rights to the photography. In short, he knew better, but didn’t think it was as important to secure the rights to the image from Jay Maisel.

    His argument about ‘borrowing ideas’ doesn’t hold water here, since he didn’t borrow a concept and transform it, he simply copied an iconic (and copyrighted) piece of well-known art (well known to anyone who listens to jazz, at least). That’s copyright infringement, plain and simple.

    It’s important for designers and other artists to have a clear understanding of fair use – and this use doesn’t fall within the litmus test for any of the qualifications.

  • http://www.bobcooleyphoto.com/ bob cooley

    There is actually a great look at this specific case at copyhype:
    http://www.copyhype.com/2011/07/kind-of-bamboozled-why-kind-of-bloop-is-not-a-fair-use/

  • Chris

    Copyright is the past. We live in a world that is increasingly incompatible with this antiquated form of make believe “property”. Ever wonder why future programs are headed for the cloud and not your next systems OS drive? The nature of the digital world is why. I would rather see creative solutions like that over suing people in court for bogus sums of money like this guy did. If you let your not so original “original idea” out into the wild and it get’s used and remixed by others, I have zero sympathy for you. The digital world does not afford copy protection, so stop digitizing your work and live strictly in an offline world if you truly believe in copyright.

  • http://www.bobcooleyphoto.com/ bob cooley

    Clearly you don’t create for a living.

    The reason we are seeing more cloud-based solutions from software vendors is that it gives the companies that create software MORE control over their intellectual property, not less – it allows for greater control over licensing.

    In the case of this story, the original artwork wasn’t put out ‘in the wild’ unless you consider putting it on the cover of an record album (and later CDs) ‘in the wild’.

    Copyright protection exists exactly for that purpose, so art and creations in all forms is protected for display in the public, to be enjoyed by many, but is still protected from theft.

    Copyright isn’t the past, it’s the law.

  • http://www.richardsnotes.org Richard

    I remember when this happened and it was like a Shepard Fairey Obama poster all over again. I was and remain amazed that he didn’t ask first but also that he was shocked when he got sued. And, because he’s a very popular blogger, a lot of people came down on his side of this, people who had no clue about what it’s like to create “original” art or attempt to make a living from that art. I wish there was an easy way to turn the tables on people who don’t seem to get it to show them what it feels like to be ripped off.

  • Rob Elliott

    So I remember when this first came out and I understood where Jay Maisel and his attorney’s were coming form. He’s a guy I respect the work of, and I guy that is a teaching photographer. I did initially think that he went a little over board in the lawsuit, but not so much I was outraged or anything like that, but I did feel bad for Baio.

    However I didn’t know that he has licensed the music. If he licensed the music that he was converting basically into 8-bit because he understood it fell under copyright why wouldn’t he license the photograph? If the music isn’t fair use then neither is the Photograph.

    I still think the settlement was much too large, 1/5th to 1/10th is much more reasonable but a conversation should have occurred, and that should have been obvious, if a 8-bit version of the music requires licencing, than a 8-bit version of the art does too.

    Though I agree with his premise Copyright law like patent law is too vague.

  • hdc77494

    I think there’s a pretty clear difference between being inspired by, and manipulating another artist’s image. Something not mentioned here is, did Mr Davis give permission for either of these people to profit from his likeness?

  • hdc77494

    Actually, the digital world makes it easier to identify theft, especially of images. A simple google search will find them for you. If you can’t comprehend how absolutely critical private property rights are, including intellectual property, maybe you should take a few more courses at night school. That said, people like Disney have twisted the original intent and protection levels of copyright beyond reason. 75 years is too long because it retards innovation and progress.

  • Rob Elliott

    Miles Davis died in 1991. Andy Baio was 13 or 14. Jay Maisel took the photo that appeared on the original image. The Photographer holds the copyright to the image unless other wise stated. In the this case yes Jay Maisel would hold the right to profit from that image, as he is the copyright holder of it.

  • JahEsq

    The means to copyright infringe have existed since well before the digital age. That if is easier to copyright infringe now doesn’t mean that the idea of copyright protection is some how antiquated. Rather than espouse lane excuses to justify otherwise illegal activity, we should be looking for ways to protect and encourage artistic expression while fostering technological advancements that benefit us all.

  • Mary

    I have huge sympathy for Baio, and I say that as an artist myself. What happened to him is an outrage and decency and common sense; remix should be 100% legal. Copyright law desperately needs reform.

  • Jesse Taylor Photography

    While the specifics of this case are interesting, I think of greater interest are the more general points that Andy Baio makes. And the most important point is that there is widespread ignorance of copyright laws. The laws probably should be updated to reflect modern technologies (for example it is legal to re-sell music CDs but we cannot re-sell a digital file of the music even if we delete the original), but I think there is also a role for companies (like Google) to do a better job of educating people on copyright law. That way we would have less infringement and less suing – surely a better place to be.

  • herzco

    Why say “borrow” when he really means STEAL. Baio is wrong in thinking that copyright is an antiquated concept. By that thinking, perhaps then ownership of any kind is also antiquated and we can empty out his house, since you know, no one owns anything anyway.

  • http://profiles.google.com/ksuwildkat Rob S

    What many in the debate tend to forget is that these thing rarely start with unreasonable demands. My personal example:

    My images on flickr were until very recently available to be licensed from Getty. Want to use one? Click, click, click and pay at the door. Baring that I have licensed images directly based on an email or flickr mail. In any case, they are marked “All Rights Reserved” not “Take it if you want it.” Despite that I have had some get “borrowed.” Upon discovering the borrowing I have initiated action against the thieves ranging from “I like your non-profit cause, send me a request and I will license this to you no charge” to “your commercial use of my images is illegal, here is a bill for $20″ (About what they would have paid Getty and way more than Getty would pay me).

    What happens next is up to the thief. Most respond immediately and positively. Most. RIght now I am at the terminal stages with one and after a series of escalating demands and a series of “FU” responses the bill is at $1500. Yup, $1500 for an image that could have been had for $20. Will I ever see a dime? Don’t know. But the thief had multiple chances to pay far less. I work with a service that takes a cut of any settlement so there is minimal cost (time) to me but even that time is worth it to defend my property. I wouldn’t let someone steal from my house as long as it was only $20 at a time. I’m not going to let someone do it with my images.

  • Knips

    Theft is theft. If Jay Maisel had stolen his work there would be an even bigger outcry.

  • http://twitter.com/Jarvo Jarvis Grant

    Borrowing an idea and stealing an image are two very different things. This photographer should have contacted Jay right off and ask permission to use the image. In the end it would have cost him a lot less. This is also about mutual respect for what we do do as photographers & artist. If we don’t respect each other, why should any body else?

  • snapshot1

    Sadly what you’re saying Herzco this is the thinking of most people nowadays, especially kids who have grown up with hip-hop as mainstream and torrents. Isn’t it interesting we never bat an eye anymore at loops in music stolen from other songs? We’ve accepted remixing as something to be praised and an “art-form”, when in reality it’s just someone who doesn’t have enough skills to come up with their own baseline and so they steal it. And anyone about defend how hard it is to steal and use someone’s ideas, I’m a bit of a musician as well as a photographer and of all things I have ever tried – remixing and stealing someone’s work and adding a few effects to it is the simplest thing I’ve ever done. Fast forward to the internet age and now visual artist are having to deal with the same exact thing of “remixing” becoming an accepted “art-form”. The same type of lazy uncreative artist wannabes who use the populous acceptance of remixing/stealing as precedent for why one can steal any form of art are now saying the same sort of things about stealing visual art (i.e. no idea is original, every idea is taken from something else, etc.). Sadly they will win because art nowadays is all about how quickly you can get something out for the populous to digest easily just like snack food – everyone knows it’s crap, but you can’t take just one bite and not keeping plunging your hand back into the bag – satisfaction without effort or thought is good enough in modern society (i.e. American Idol).

  • Pablo

    Rights to a person’s likeness after death is State law and I have only heard of California having such a law.

  • Pablo

    “Transformed into something new” is getting into the area of derivative works. Even if the transformation is “new” and even “original”, the transformed work is a derivative work since it used a pre existing & copyrighted work. Copyrights include the monopoly to make derivative work.

  • hdc77494

    So how do the families of Einstein and ML King for example claim copyright protection for their likeness? Just curious.

  • http://profiles.google.com/ksuwildkat Rob S

    I disagree on the length of time for copyright. The current 70 years after death of artist was created in 1976.

    Look at the technology for media at the time – Prints were good for 20-30 years. Books longer if cared for well. magnetic media was relatively new and was in the 5-10 year range. At the time you could reasonably expect the copyright to outlive the media and only books could be reliably reproduced without significant loss of quality. Assuming a person lived a normal life of 60-70 years (normal in 1976) and they produced their “art” in their middle years the protection was in the 100 year range – about half the entire history of the nation.

    Now fast forward to today. Digital media allows for flawless reproductions forever. Most magnetic media will outlive the operating system used to access them. If the copyright protection was 3-5x the expected survival of a print what is 3-5x forever? I would argue that death plus 100 years is more appropriate now. For something created in the digital age, death plus 200 years might be more appropriate.

    Just a thought

  • http://profiles.google.com/ksuwildkat Rob S

    What really makes the argument for “borrowing” empty to me is the massive number of free as in beer ideas available. There are not many “borrowing” needs that Open Source and Creative Commons cant satisfy. Wikicommons has over 16 MILLION files. Flickr hosts millions more. Yet with all that free media available people continue to “borrow” – read steal – from people who choose NOT to make theirs free. And why do they choose those not free ones over others? Because its not the idea they want, its the really well executed one. The really good one. The not crappy one. The very digital revolution allows blatant theft removes any need to steal.

  • hdc77494

    Sorry Rob, the time limits of a copyright have nothing to do with the life expectancy of the storage medium. Originally the idea was to protect intellectual property long enough for the creator to profit handsomely while specifically limiting the protection to encourage innovation. Virtually noting we create is so wholly new that it’s not built on the foundation of another’s ideas. That said, copyright doesn’t really protect ideas but the expression of them. Current law lat’s people like Disney get lazy, and rich. I’m all for returning the limits to 25 years. I think it would accelerate cultural innovation.

  • herzco

    Thanks – Very well worded. Much appreciated.

  • herzco

    Great point, thanks for stating. I wonder if another part of the problem is that people are so desperate to be immediately on-trend that they take on the mindset that “stealing is cool” without really thinking it out / extrapolating. Sure you can take now, if you don’t mind taking away opportunities for yourself in the future. If you heat your house using beams from the foundation it sure is nice and toasty…until the whole structure implodes, which is what we are seeing happening. So many great artists who used to be able to make a living doing their photography and now work at supermarkets etc because of stuff like this. Sad.

  • http://profiles.google.com/ksuwildkat Rob S

    I think the survivability of media had an impact on the decision process for choosing death plus 70 years. I think the folks making the decision looked around and thought – ok, what the oldest movie/picture/song? Movies were less than 100 years old. LP Records less than 30 years old. Applying copyright protection that spanned almost the entire history of movies/music must have seemed like a long time with a lot of protection. Old movies and records would die and be forgotten long before the time would run out on their legal protections. By the time a copyright ran out on a book no one would want to read it anymore.
    Im not saying media survivability was the main driver of copyright decisions but I think it had an impact and it still should.

  • http://profiles.google.com/ksuwildkat Rob S

    Agree. By some peoples logic I should be ok with my car being “borrowed” because it is 14 years old. Once you are done paying for a car it doesnt become public domain. Why should my pictures be treated any differently?

  • herzco

    Because people do not realize that getting something for free now has huge repercussions down the road.

  • herzco

    Because people do not realize that getting something for free now has huge repercussions down the road.

  • Neil

    Converting a photograph into 8 bit is not “art.” He wasn’t even “inspired” by the original. He just loaded it into whatever software he uses and that was it. I know Jay personally and he is actually an incredibly humble and nice guy (by photographer standards – they all have big egos, but his is coupled with a great sense of humour). Andy is typical of internet brainwashed people who think creative commons-this fair use-that gives them the right to do whatever they want with someone else’s work. Doesn’t work that way in real life, as he found out.

  • Neil

    Do you have social sharing disabled? Right click downloading disabled? Have you done everything possible to prevent theft?

  • Neil

    The rights to Einstein’s intellectual property are with Hebrew University, not his family. In addition, that does not include photographs of the man taken by various photographers, including numerous Magnum shooters.

  • Neil

    Baio is not an “artist.” By his own admission he is “an American technologist and blogger.” (Scum, in other words)

  • Neil

    You use the term “remixed” which shows how brainwashed you really are.

  • http://profiles.google.com/ksuwildkat Rob S

    Is it ok to rob a house if the doors are unlocked? Can I take your car if you leave it unlocked? Of course not. Just because you CAN steal something doesnt mean its not still theft if you do.

  • http://www.facebook.com/guilherme.benke Guilherme Benke

    Funny you’ve said that. All the classic books, paintings and other works of arts are from an era where there’s no copyright. The big movie companies keep “revisiting” (copying) these classics forever and ever. Then someone creates a parody to one of their “copyrighted” works and they go crazy – that is just ridiculous. In the analog age, you could treat music, art, movies in different ways but now it’s all data. Therefore, you can’t expect things to be different than they are now – copy/paste culture is here to stay and some are making money out of it. If you’re so sensitive to have your digital photo or music copied online, dont make it available there, just produce in analog format. Do it the old way if the new way is so harmful to your business. Some artists are trying to create a market where there should be none – does anyone really believe this Baio, with his 8-bit work, would make any difference to the original (and amazing) Miles Davis Album, which only gets the fkin record label rich nowadays? Given Miled Davis intelligence and vision, I would say he’d even invite the guy to join him for a session or be pleased by the side work.

  • http://www.facebook.com/guilherme.benke Guilherme Benke

    Don’t compare physical things to data – two VERY different concepts. You still can’t copy your car but we’re getting close with 3D printers.

  • http://www.facebook.com/guilherme.benke Guilherme Benke

    They use a famous bassline because it’s good. They don’t use your bassline (or mine, I play bass) cause we are irrelevant. I believe you’re giving it a narrow look, mate. Yes, we do have the remixed stuff but there’s also a plethora of new stuff out there. Those remixing stuff over and over are exactly the ones that should be pushing the creativity – the big record labels! The ones creating the new stuff are underground, like it has always been with culture itself. Most people will keep listening to these crap, who cares, good stuff has always been for the very few, like us :)

  • http://www.facebook.com/guilherme.benke Guilherme Benke

    Isn’t it terrible to be like this? This means that only EMI would be able to use a 5-second sample from this album they recorded 70 years ago. This is beyond crazy to me – how does this help in any way for new content to be created? It doesn’t and that’s what the copyright law is supposedly trying to do in a fair way! We all know these will be extended for 100 years, then 150, then 1000… Culture is expression before becoming this nasty business. It’s amazing that now artists have to go out there and do live shows to get their money, not only spend all their life trying to monetize in an album recorded 5, 10 or 30 years ago. Free Culture is a win-win situation: artists create freely, the market decided what it’s worth, people watch/listen/share the content giving them more chances to monetize and survive in the long run. Stop being silly with copyrights, you’re probably better than that!

  • http://profiles.google.com/ksuwildkat Rob S

    Using your example – Im a big fan of the TV show Grimm. Its roots are the Grimm Fairytales that long ago passed into the public domain. But it is because the stories are so well known that the creators of Grimm were forced to take the basic story in a completely new way. It is the very essence of “transformative.” Forrest Gump is Walter Mitty in reverse. Starcraft is Starship Troopers. All of these “borrow” without copying. They add to, rather than taking away from the value of the original work. But it is copyright law that forces creators to stay on the good side of the line. We all know a fake when we see it.

  • Matt

    Wow, really? So, anything digital is ok to take from someone else? That is wrong.

  • Ron

    Actually the copyright length change was entirely due to Disney lobbying Congress. Their own copyrights on the Mouse & Co were coming within view of expiring and they could see an influx of lower cost items cashing in on their characters.

    Rightly or wrongly they used political power to extend their own profitability.

  • Ron

    I’d interpret the comment as physical items having property rights attached to them, while digital items don’t.
    I can dispose of a physical time, therefore I ‘own’ it, however I can’t dispose of a digital item, therefore I don’t truly own it.

    If I buy a photographic print (or a book, or a CD, etc) then I have the right to lend it, give it away, sell it or make a funny hat from it. However I don’t have property rights over the data contained within the item (or the file data for a MP3 or JPEG, for that matter) which is why I can’t copy it.

    The reality is that at most you can only ‘lease’ digital files in practical terms as their use is highly limited – I can’t lend, give or sell them under most TOC’s, so in real terms I don’t own them, the supplier does and they are selling me a licence to use or leasing them to me in some form.