90WPM

Copies and Copies

There’s a certain reaction among the citizens of the Internet when confronted with a modern-day David and Goliath story. Conclusions are drawn (or, more often, jumped to), villains are identified, and angry status updates and harshly-worded condemnations are tossed around like so much excrement in the monkey pit at the zoo. It’s easy to look at a situation like the one Andy Baio and Jay Maisel were unfortunately saddled with and decide quickly that Baio was a fool, or that Maisel is being an asshole.

For those of you joining the conversation now, Andy Baio is the man behind the Kind of Bloop project. The album is a recreation of Miles Davis’ Kind of Blue using 8-bit sounds. The issue in question is the cover art, which is a pixel illustration based off of a photograph taken by Jay Maisel. Baio considers the illustration fair use, while Maisel considers it a violation of copyright and sought damages of $150,000 for each violation as well as $25,000 for DMCA violations. They ended up settling for $32,500. This money came out of Baio’s pocket, not out of any revenue, as the album was given away for free.

There are two discussions running in parallel at the moment:

The Copyright

Copyright law is nuanced, but the point that’s really being debated is whether or not the work in question is “derivative” or “transformative”. Historically, this has been used to classify reproductions of original works in other media as either derivative and infringing on the original’s copyright, or transformative and worthy of a new copyright. The key here is that translations of the work to other media that keep the original composition, colors and other unique identifiable traits (derivative works) are not granted the same rights as works that recontextualize the original (transformative works).

There are strong opinions on both sides of this argument. On the one hand there are those who think that the cover is a blind translation of Maisel’s work, and therefore a breach of copyright. On the other hand there are those who assert that pixel art is a craft and deserves respect, and that the work is crafted and therefore transformative [Update: this is not meant to imply that craft = transformation, but rather that there are those who have sided with Andy, for better or for worse. Thanks to Ian Adelman for pointing this out.]. From a legal standpoint, who is right depends on whether a judge determines that the pixellated rendition of Maisel’s work is a mere translation of the work to another medium, or a new work that recontextualizes the original.

The answer depends in part on where you draw the line over what constitutes a medium. Photography is a medium. Paint is a medium. Acrylic paint is a different medium from oil paint, with different physical properties which affect the creative process.

How, then, does one define pixel illustration? Is it also a medium? Or is it one tool in the larger medium of “new media”, together with photographic manipulation, vector art and digital collage? If one creates an illustration using an original work for reference, when does the abstraction become abstract enough to merit a new copyright? This doesn’t just apply to digital media. Are illustrations like Felix Sockwell’s loosely-sketched translations of famous jazz photographs actually derivative works and subject to damages?

If you photocopy a drawing, no one in their right mind would call the copy an original work of art. If you copy it again, and again, and again, and again, to the point where it becomes another image altogether due to the limitations of the technology, or if you alter it by changing the way you place the page, that discussion changes. If this sounds like a first-year art school assignment, it’s because these are the kinds of questions that are asked of first-year art students. At what point does a copy cease to be a copy? Does the law address this?

Finally, and most importantly as far as this case is concerned, what if the art is not really the translation itself, but rather the artist’s choice to juxtapose a particular original work with a particular style? We are talking about an album cover for an 8-bit tribute to Kind of Blue. The choice of medium for the rendition has a conceptual link with the music on this record.

Granted, this was not the only design choice available given the subject matter¹. I’d also agree with many critics that the concept could have been taken much, much further. But do we really want to create an atmosphere where certain artistic choices are self-censored out of fear that they will cause the artist to be the target of litigation? Or where an amateur project which simply lacks the necessary conceptual depth is a liability worth hundreds of thousands of dollars in damages?

I won’t pretend to be qualified to offer answers. But the questions are far-reaching.

The Suit

Some people think that the problem is really a matter of cropping²:

To my eye, his conversion is far too faithful to the original, and doesn’t come close to evoking the minimalist nature of 8-bit game console graphics.

Putting aside my personal disagreement with the above³, I don’t know if that’s really the problem here. John McCoy nailed it with this quote from Maisel’s lawyer:

“He is a purist when it comes to his photography,” his lawyer wrote. “With this in mind, I am certain you can understand that he felt violated to find his image of Miles Davis, one of his most well-known and highly-regarded images, had been pixellated, without his permission […]”

Would things be different if the the pixellated photo were cropped differently so as to obscure its origin to all but the astute observer? I think that if the original source of the image could to be determined (any of the alternative crops proposed by Baio, other than the last three, would be recognizable by someone familiar with the photo), word would have gotten back to Maisel, and he would not have been happy.

This fact, then, raises some other questions:

Would things be different if the photo had been used in a montage or collage of 5 other photos?

How about 50?

How about 5000, combined into a mosaic that becomes something else (say, a trumpet) when viewed from afar?

What if the illustration was done with type?

Does sculpture count?

Would any use of the photo have been inoffensive? If so, what kind?

As others have noted, this suit would likely not have been brought against Baio had the work not gained widespread notoriety. And there’s something to be said for protecting little-known photographers against other, better-known artists taking their work and making millions from works which are obvious translations while adding nothing of value themselves⁴. But in this tale, the artist is the little guy. And while I respect Maisel’s right to litigate, and his desire to avoid death by a thousand papercuts, I still think that he went overboard. He could have let Baio go with a token settlement and an agreement to use another cover.

Instead he went for the jugular.

I think, based on the facts I’ve seen, that the punishment was disproportionate given the lack of profit motive. And that’s really what’s pissing people off.

I encourage everyone to check out Kind of Bloop and buy it if you like it. Don’t buy it out of sympathy for Andy. Buy it because it’s a damn good tribute album.

Note: I’d like to thank Ian Adelman, John Niedermeyer and Jon Chretien for enduring my rants over email and then having the courage to continue the discussion in person over lunch, and Jeremy Zilar for discussing it at length over AIM.

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