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.
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?