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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:

Hahaha YES. Jay Maisel has evidently not seen enough shops in his time

In a way I think this is Andy Baio's whole point. Creative actions (or really any actions) end up being governed not by what the laws dictate, but by one's ability to maintain a legal fight. The main question -- whether or not the referencing of the photo was in accordance with the law -- becomes totally immaterial, because the question never even reaches a courtroom.

I think what Andy Baio is saying is this: even if you act in accordance with the law, nothing prevents someone from suing you anyway, so nothing protects you from facing the awful choice of spending thousands in a court fight or spending thousands in a settlement. Once the threat of a lawsuit exists, the question is no longer about whether you were right or wrong originally, it's about affording the fight. Regardless of whether it's a fight you asked for, or whether you really "bought a ticket." 

The commenter's failing to understand that if you believe you're acting in accordance with the law, you have no reason to think you've "bought your ticket." We drive 50 in a 55 MPH zone; then a cop pulls us over & says we were doing 60. Was that a ticket we bought? We photocopy a chapter from a book for our 20-student class (almost universally seen as falling within the "fair use" exception to copyright laws governing reproduction). Did we buy a ticket there?

It's really up to a court of law to determine whether we did or didn't. But since getting into a court of law means financial ruin for most individuals, settling generally becomes the only viable option, and the party issuing the lawsuit gets their way.

In other words, costs of going to court mean that the mere threat of a lawsuit becomes just as effective a deterrent as the consequences of actually breaking the law, and this means that anyone with the ability to file a lawsuit stands to unduly influence what is and isn't done artistically.

Some nice ones at http://www.falsebit.com/blipfest-2011/b … 02011.html

Fuckin' A.

Sorry but I think the idea of Game Boy buttons composed of silver is a silly one. Not making any statement about your craftsmanship or handiwork. Plenty of people find my music silly and are entitled to do so and I barrel along undeterred, as should you. I applaud your dedication to your craft and wish you the best of luck.

full circle