Kind of A Dick Move

Mat Honan — Photographer and 72-room New York City mansion dweller Jay Maisel successfully chiseled thousands of dollars out of independent (and awesome) Web developer Andy Baio over an iffy copyright infringement claim. It's outrageous and wrong, and Maisel should be ashamed.

[Full disclosure: Andy and I were colleagues at a webzine startup more than a decade ago.]

The case stems over the cover art for the album Kind of Bloop, a chiptune remake of the Miles Davis classic, Kind of Blue. As Baio notes:

I went out of my way to make sure the entire project was above board, licensing all the cover songs from Miles Davis's publisher and giving the total profits from the Kickstarter fundraiser to the five musicians that participated. But there was one thing I never thought would be an issue: the cover art.

Unfortunately for Baio, it turns out that Maisel is an aggressive copyright defender. It meant that Baio had to shell out a $32,000 settlement, and plunk down another $10-15 thousand dollars in legal fees out of his own pocket. He is not allowed to use the artwork ever again.

Maisel, on the other hand, didn't have to pay his attorneys anything to litigate the case. They take their fees out of his winnings, as he explicitly notes in an endorsement on his lawyers' website.

They earn their fee by charging a percentage of what they obtain for you; no money for you, no fee for them. I highly recommend them.

I bet you do, Jay!

Interestingly, Baio may be in the clear, legally. The Supreme Court has weighed in on fair use and said it's okay in the case of "transformative" works noting the judgement should focus "on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is controversially transformative, altering the original with new expression, meaning, or message. The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use."

But we'll never know, because Baio settled claiming it was the least expensive thing to do. He doesn't, however, admit any wrongdoing or guilt.

"My lawyers and I firmly believed that I was legally in the right," he says. "But it doesn't matter, fair use doesn't protect you unless you're willing to pay to defend yourself. The average copyright case costs $310,000 to litigate when there's less than $1 million at risk."

It's crazy. And the very definition of a chilling effect.

Kind of Bloop was one of Kickstarter's early successes. It helped, well, kickstart that company. More importantly, it stood on its own as a work of art. It was written about in Time andWired and numerous other places. It was experimental and daring, like Davis himself. And the album art transforms Maisel's iconic image in much the same way that the music itself transformed Davis' tunes. It is financially-enforced censorship that is a shameful blow to artistic expression and belies how little the court system and traditional artists appreciate or understand the digital era.

Baio has collected all kind of other examples of transformative art, including examples that resulted in lawsuits, like the Shepard Fairey / AP case over the famous Obama image from the 2008 campaign. It's worth a look. And he ends on this sad note:

It breaks my heart that a project I did for fun, on the side, and out of pure love and dedication to the source material ended up costing me so much - emotionally and financially. For me, the chilling effect is palpably real. I've felt irrationally skittish about publishing almost anything since this happened. But the right to discuss the case publicly was one concession I demanded, and I felt obligated to use it. I wish more people did the same - maybe we wouldn't all feel so alone.

Oh well. Presumably Maisel has a nice heating system in that 72 room manse to warm his cold little heart. Or maybe he can just burn some money.