kind of blue (about copyright law)

Duncan Davidson, a photographer I’ve admired for years (he’s one of the guys behind the dailyshoot project), wrote up a fantastic description of the recent Kind of Bloop/Blue photograph copyright brouhaha. A photographer, Jay Maisel, takes an iconic photograph of Miles Davis. It’s an amazing photograph. It’s used for the cover of Davis’ Kind of Blue album. Wonderful stuff.

Pixel-art image by Andy Baio. Photograph by Jay Maisel.

Fast forward a few decades. Musician and artist Andy Baio releases an album of chiptune music, and creates some cover artwork inspired by Maisel’s photograph. He doesn’t directly use the photograph, and doesn’t simply manipulate the photograph. He essentially creates a new pixel-based drawing based on the photograph. It’s a completely new work, painstakingly created in a different medium, inspired by the original. Maisel basically threatens to sue the bejeezus out of Baio, but he’s willing to settle for a comparatively mild ass-raping. Maisel’s a majillionaire photographer, with resources to burn on law-talking-guys. Baio’s just a guy making stuff for fun.

For a description of the process of creating pixel graphics, see Neven Mrgan’s description of how he created similar works for his iOS game The Incident. It’s not just save-as-jpg, open in photoshop, apply pixelization filter, save-as-gif. It’s a definite artistic process of creation. Also, there’s a slippery slope – would Baio have been OK if he’d created a watercolor painting based on Maisel’s photo? A pencil sketch? A cartoon? Where is the line drawn? Is an interpretive dance about the photo OK, where a pixel-based image is not?

Duncan hits the crux of the issue:

Should Jay have the right to claim the derived image isn’t fair use and ask for a cease and desist? Yes. He’s not, as many are saying, a dick for his opinion. Should Andy have the ability to defend his stance that it is fair use. Of course. Should it take the kind of money that only either corporations or the very rich can easily afford to spend in order to get a judge’s ruling and find out? Definitely not. That’s the real problem here.

The creation of an image that represents the original photograph is almost certainly fair use. But, under the current legal environment, only corporations (and Maisel is a corporation with millions of dollars to support legal actions) can “win.” Baio could have taken it to court and scored a moral and legal victory, but only at the expense of bankrupting himself and his family. That’s insane.

Again, Duncan nails it:

The shame of it all is that while copyright is largely a conversation between corporations, the situation here pits creative against creative with legal tools that are mismatched for the case at hand. Nobody really wins.

Bonus question: Do the possible penalties in copyright law designed to make it painful enough for publishing companies to comply make sense when applied to individuals in the current world where it’s so easy for anybody to be a publisher?

How does this climate impact the activities of teaching and learning? In an environment where individuals can be sued into oblivion by corporations, essentially bullied into settling before even putting the issue to legal test, what happens to fair use? How will the students in ds106, which is largely about exploring digital media and creation, deal with the legal issues?

Incredibly awful pencil sketch by D'Arcy Norman

23 thoughts on “kind of blue (about copyright law)”

  1. This has really been bugging me as well, especially the implications for those of us involved in ds106 who encourage fair use remixing of work. What good is fair use when the cost to defend yourself is greater than defending right from wrong? Typically I’m the guy that tells people “You’re probably fine, don’t worry about it.” by I can’t in good conscious continue that line of thought.

    1. I was discussing ds106 with a group last week. We had a fascinating discussion for over an hour. They asked how copyright was being handled, and they all turned pale when I said it was being deliberately ignored. If we’re asking students to do these things, at some point there is an institutional responsibility to not have students putting themselves at risk. It’s fine to say “hey, it’s not like someone’s actually going to sue a student.” Until it happens. And then things get screwed up for everyone, because nobody will be willing to do this kind of course/experiment again. We need this to go through the full legal process. Unfortunately, the only ones with the money and motivation to see it through are the corporations that have a vested interest in preventing fair use from being internalized by society. BE AFRAID! WE COULD SUUUUUE YOU! Sure, you have the legal right to do these things, but who is able to stand up and get the bullies to back down. I sure don’t have that kind of money (and if I did, it’s already tied up in a previous legal action for the last decade…)

  2. “Baio could have taken it to court and scored a moral and legal victory, but only at the expense of bankrupting himself and his family. That’s insane.”

    Well no, it’s not. It’s courageous. And unfortunately necessary. But not insane.

    This is what frustrates me about the eye-roll I get when I tell people I’m involved with the Pirate Party. That I would put my energy and passion into fighting for something as seemingly trivial as copyright (and privacy) when there are starving people in the world, etc. First off, it’s not an either/or. But to stay on topic, this isn’t just about “artistic freedom” it’s about FREEDOM OF EXPRESSION, dammit, the freedom on which all of our other freedoms are based, and it IS worth going to court for, going to jail for, going bankrupt for, if that is what it takes to reclaim this from the corporations.

    But no, I don’t want Baio to have to go to court or be bankrupted, which is why I join you, D’Arcy, in giving Jay Maisel the royal bloop – http://twitpic.com/5g9wal – and as many others should as well, in as many different forms as possible. “No, I am Spartacus” etc.

    1. I didn’t mean that the fight itself was insane. But potentially pushing your family into bankruptcy for years? That’s insane. If I you had to chose between a moral victory over copyright and being able to feed your family, would you really have to struggle with that decision? I wouldn’t.

      1. Hence my reasons for trying to do things in solidarity, joining a political party, donating money to various copyright activist causes and legal defense funds, etc.

        You and I are not on different sides on this, I know this; how far each of us individually will go is a personal choice, though I’m wondering where the “Andy Baio Defence Fund” is, where I can kick in a bit to help with his existing $32k bill?

        We have a LONG way to go; we bought into a bill of goods and it took a long time for us to realize what we’d given up by selling our culture. But it gets retaken image by image, sample by sample, sometimes as confrontation, other times hopefully as more civil conversation and innovation.

        1. Easy answer to how you can help Andy is to spend $5 on the album http://kindofbloop.com/. He receives the proceeds of that minus server/license costs. Of course he’s recommending people donate to the EFF as the greater good to help fight these battles and that’s a great option as well (but I’d rather do that after knowing he was able to make up the gap of the settlement first).

  3. Sorry, I should have said “Jay Maisel’s lawyers” – I’m sure he’s a warm and wonderful human being and this has everything to do with lawyers and record companies.

  4. “I’m sure he’s a warm and wonderful human being and this has everything to do with lawyers and record companies.”

    Unfortunately for it to go as far as requiring a fellow artist (and not a rich one by any means) to shell out $32,000 for an error of judgement that may or may not have been fair use, I’d have to disagree and say no, I think Jay Maisel is a dick and sicked his lawyer dogs on an innocent man to make a stone bleed.

  5. One thing that suddenly popped out for me, is that all of these conversations and actions are about products, things made to be consumed. There is not one word ever about the original work of art that they are all derivative of–namely Miles Davis–the human being whose living presence has inspired all of these other expressions. If there are any natural rights at all in this fractal and iteratively insane copyright situation, what inheres with him? What rights does he have about what is done or not done or done in the name of his image? (Not looking for answers, just provoking the thought experiment.) The Aborigines complain about our culture that it “never gets back to the Mother”, meaning that we put primacy on manipulation and ownership of product/production rather than basing our way of living on gratitude to the source that provides all our sustenance. Feels to me like there is resonance here. And perhaps a next deeper level of deconstruction of the whole illusion. Okay, black sheep gonna head back out to left field and chew on some more thistles….

  6. It sounds to me like you guys are all unwilling followers of a religion that you have no control over and is not reasonable. That it is massively interfering in your lives and controls what you can and can not do with your lives and culture. A religion created by the rich and kept consistent by a clergy which knows no justice or reason and threatens to destroy your lives for challenging its control. Yet, you seem to be powerless to fight it and yet fuel it with every waking hour through your economic activities. I believe it may be time to find a new religion?

  7. Sami, D’Arcy has always been really polite to your trolling but I suffer no such affliction – go fuck yourself.

    1. Scott, if I am simply trolling then why such harsh language. You seem to preach in clear logical, contradictions. On one hand you argue for all this inclusiveness, yet at the same time it is rather easy to show that you exploit the exact same mechanisms to suppress dissent that you accuse other people using against your cause.

      The fact of the matter is, and I have been hesitant to say this but it’s the truth. For the most all of this hubbub is really childish sorts of retorts against power. And in many ways futile, and if they were not to be futile, then it would need some deep thought. And none of you has put any time into it.

      The trolling part, is only trolling because it gets in the way of your discourse… and your discourse is rather shallow and not a dialectic or even a debate. It just a get together of like-minded people get into to a group and start shouting at the status quo; without deeply thinking about how to change it.

      And why don’t you go fuck yourself, and your hypocritical ways?

      1. Sami, why do you even bother engaging with any of the people you hold in such low esteem? We are all so shallow, do you see it as your job to educate us? But Sami, Dearest, how could you do so as we clearly can’t hear you, lost in our shallow discourse. You are a troll, an anonymous troll, who, for all I can tell, is just as hypocritical and ineffective. But how could I tell any different? So please, piss off, leave us to our insular, shallow discourse if you would.

        1. “Sami, why do you even bother engaging with any of the people you hold in such low esteem? We are all so shallow, do you see it as your job to educate us? “

          Oh Scott, how you use divisive speech to split the chosen followers from the ignorant ones who do not understand your truth? I hold no such views. It’s funny how you skirt the actual issue, and instead focus on those who believe vs. those who question.

          “But Sami, Dearest, how could you do so as we clearly can’t hear you, lost in our shallow discourse.”

          More divisive speech meant to sway the true believers, no doubt.

          “You are a troll, an anonymous troll, who, for all I can tell, is just as hypocritical and ineffective. But how could I tell any different?”

          Well we agree on your (and my) ineffectiveness. However, I am not hypocritical, as far as I know. I act according to what I preach, and I would love to see you show me otherwise.

          Also, am I a troll or is it you, riling up the masses to prey on their emotions? Encouraging them to be brave and to break the law. I am simply annoying in speech, you are encouraging actions that I might be considered to be somewhat dangerous… without as far as I can tell having a very good logical foundation for doing so.

          “is just as hypocritical and ineffective.”

          Well at least I am as bad as you are.

          “So please, piss off, leave us to our insular, shallow discourse if you would.”

          I probably will do so at some point, but I have a rather thick skin… and you are all-inclusive believers of freedom and free speech… right?

  8. My first thought was exactly Wendy’s. What about Miles’ own image? Of his person? The photo is great because he is. Sheesh.

    @Scott, I love you, really truly. If you told me to make 50 renditions of Maesil’s photo- I would. I read and listen to your every word- but let’s remember that anger we’re supposed to hold with mindfulness. (it’s eFn hard, I can’t do it, honestly) But if we lose our calm while making the most valid point- and you seem to see so clearly on these points- then we lose the strength and validity of the point itself.

    @Sami- you are trolling by definition because you post some metaphorical critique and do not proffer up any clear alternate solution, way forward or even concrete examples of what point you are actually trying to make. If you were a student and I were your teacher, I’d ask you to flesh out what you were trying to say in a more constructive manner.

    1. I believe that Socrates would be called a troll if he were around, by definition. In a few sentences what I would say is that life is transience and this worrying is endemic to the species and we have always been in this state and not to worry so much and it all ends at some point regardless of what you do… Everything is change and transience and in life we don’t control much. Not to get riled up by rhetoricians and sophists, and deeply understand things before committing to a position or riling up other people about it (I take extreme position to show people this, but they don’t seem to get it) — however our democracy does not hold these principles, quite the opposite. Every person has an opinion, and often ill-informed or advised people become activists and wreak havoc on the political systems.

      Instead, everyone gets worried that they are going to die tomorrow and the world is coming to an end — which it may very well be… The evidence used to rile people up however are edge cases, because if they were more endemic we would have much more social upheaval. In this case, there needs to be a fund to prevent such sorts of extortion and take the cases to court… or pay off the copyright holder in certain cases where it’s expedient to do so.

      But anyhow, in a more constructive manner, each of the pieces of this puzzle fit together. Property laws fit together with capitalism. Human society tends to become hierarchical; capital flows to the top of the hierarchy. Many people allow this to happen through their actions; it can not be prevented. Where certain aspects hold everything together. My suggest would be some sort of corporate structure to protect the interest of whichever group, and forms have been suggest such as Anarcho-syndicalism… However, by and large people resist such things and I think the civil religion (http://en.wikipedia.org/wiki/Civil_religion) of Canada and the United States has contributed to this attitude;… That can’t be addressed until you identify that elephant in the room, but most people are oblivious.

  9. Comments are disabled on my blog again. This kind of bullshit is what I hate about blogging.

    If you want to comment, please man up and do it in your own space. Don’t use mine as a soapbox for whatever rambling diatribes you’re working on.

    I’ll write something in more depth about this later. At the moment, I have shit to do, and don’t need to ignore my family in order to deal with this bullshit.

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