El Huesudo II
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This smells like a nefarious scheme anyway you see it.

While the fact that this wasn't a simple case of photoshop-effect clusterfuck can be easily proven in court, only needing to get the artist up there explaining his process and maybe showing a few WIP images here and there, Baio did say that defending his claim of fair use was waaaaaaaay too expensive. And apparently Maisel is described here as "an aggressive copyright defender", so he must have known how expensive defending the case actually was.

So, determining that Baio was better off just handing a small amount of cash over and getting it over with, he went into full aggressive mode to get the quick buck. He might have not cared about how much Baio would be screwed because of this move, because most likely Maisel was actually a little ticked off that no one asked for his permission.

It's pretty obvious, really.

Frostbyte
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I mean, it is true. The rules are the rules and he should have gotten permission. While I don't think what the photographer did was moral, it was what the rules let him do. And, who says the law is moral.

It's sad, but until we have some kind of copyright reform in the States, there's nothing anyone can do besides be extremely careful with this stuff unless you can afford to defend your stance.

Bit Shifter
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Brooklyn NY US

A lot of people seem to be insisting on a baseline assumption that Baio took a chance, and was unlucky enough to get nailed. That's not really the case. Look at it this way: speeding's illegal. Unless (for example) you're an on-duty ambulance driver. If you're an on-duty ambulance driver exceeding the posted speed limit, you would not be entertaining the question of "Hmm, I wonder -- am I in violation of the law right now?" It's just a built-in and understood part of the law that in certain contexts, speeding is permissible.

Similarly, copyright law permits reproductions of, and references to, copyrighted works, without permission, in certain contexts. Kind Of Bloop's sleeve art was produced in accordance with this understood aspect of the law, and was legitimately believed by Baio to have fallen well within those accepted contexts. Baio in his mind was not taking a risk, was not trying to get away with anything.

The Wikipedia entry on fair use is worth reading, and actually has a section that (in my view, and I'm sure in Andy Baio's view too) sums up the problem here:

http://en.wikipedia.org/wiki/Fair_use#Fair_use_as_a_defense wrote:

...some copyright owners frequently make claims of infringement even in circumstances where the fair use defense would likely succeed in hopes that the user will refrain from the use rather than spending resources in his defense.

BR1GHT PR1MATE
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BOSTON

does anyone else find it odd that this whole thing is about a photograph of miles davis; an artist whos entire career was based on 'illegally' appropriating popular songs and making new music out of them?

Or even that photography in and of itself is inherantly appropriative?

I hope this guys name becomes synonymous with 'hypocrite'.

goto80
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CHIPTUNE

Jay Maisel earns $50,000 in one day by running a workshop where "you will be sent out on assignments to shoot people". We're all delighted that he can now take the day off. Hopefully he can take another day off after suing NY Times: http://www.nytimes.com/2011/06/26/arts/ … .html?_r=1

e.s.c.
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IL, US
BR1GHT PR1MATE wrote:

Or even that photography in and of itself is inherantly appropriative?.

i can agree to some extent, but mostly just in documentary photography...look at man ray's photographs and youd be hard-pressed to consider it appropriation in any real sense (or for that matter any photographer that gets creative with studio lighting, multiple exposures, sandwiching negatives, etc)

Frostbyte
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That's an awesome picture, e.s.c.

RG
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Milwaukee, WI

I'm thinking the real motivation for the lawsuit was the AWFUL compilation name. I'd sue too with a name like that.

Lazerbeat
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Tokyo, Japan
Bit Shifter wrote:

A lot of people seem to be insisting on a baseline assumption that Baio took a chance, and was unlucky enough to get nailed. That's not really the case.

-snip-

The Wikipedia entry on fair use is worth reading, and actually has a section that (in my view, and I'm sure in Andy Baio's view too) sums up the problem here:

http://en.wikipedia.org/wiki/Fair_use#Fair_use_as_a_defense wrote:

...some copyright owners frequently make claims of infringement even in circumstances where the fair use defense would likely succeed in hopes that the user will refrain from the use rather than spending resources in his defense.

You know, I think there might be a point here worth looking at. The wikipedia supports the reasonable assumption that copyright holders often use infringement as a profit source. Doesn't really matter how fair your fair use is if you don't have the time/money to fight it in court? Unfortunately law isn't altruistic, it is a tool to be wielded by those with the deepest pockets.

I don't think Baio was taking an uninformed risk per se but the pixel art recreation of the Maisel photo was obviously backed by a rather hopeful reading of fair use. I would rather say imprudent than unlucky.

I would also say, I have very, very strong feelings about copyright and I am not a fan in the slightest of how Maisel / the US legal system / copyright law have treated Baio. He seems like a genuinely awesome guy who had a really really awesome idea but got screwed over by "the man".

Last edited by Lazerbeat (Jun 27, 2011 3:02 pm)

SKGB
Offline
Godzilladelph
BR1GHT PR1MATE wrote:

does anyone else find it odd that this whole thing is about a photograph of miles davis; an artist whos entire career was based on 'illegally' appropriating popular songs and making new music out of them?

Or even that photography in and of itself is inherantly appropriative?

I hope this guys name becomes synonymous with 'hypocrite'.

Well, you could technically make the argument that almost every song has elements "appropriated" from an earlier song. You could say every rock musician was just stealing licks from 12 bar blues, but that would be besides the point, imo.

Bit Shifter wrote:

A lot of people seem to be insisting on a baseline assumption that Baio took a chance, and was unlucky enough to get nailed. That's not really the case. Look at it this way: speeding's illegal. Unless (for example) you're an on-duty ambulance driver. If you're an on-duty ambulance driver exceeding the posted speed limit, you would not be entertaining the question of "Hmm, I wonder -- am I in violation of the law right now?" It's just a built-in and understood part of the law that in certain contexts, speeding is permissible.

Similarly, copyright law permits reproductions of, and references to, copyrighted works, without permission, in certain contexts. Kind Of Bloop's sleeve art was produced in accordance with this understood aspect of the law, and was legitimately believed by Baio to have fallen well within those accepted contexts. Baio in his mind was not taking a risk, was not trying to get away with anything.

http://en.wikipedia.org/wiki/Fair_use#Fair_use_as_a_defense wrote:

...some copyright owners frequently make claims of infringement even in circumstances where the fair use defense would likely succeed in hopes that the user will refrain from the use rather than spending resources in his defense.

it's amazing how people harness copyright law as a moneymaking tool now. It makes me wonder if there is any purpose left to it at all (aside from buying Jay's daughter a new room, of course).