A rather interesting conundrum has arisen over the last few days with regards to photographers, artists and copyright. As I straddle the fence between photographer and artist, I find it quite difficult to decide where I should stand on this case. If you haven't read about it already here it is in a nutshell. Web designer Andy Baio created a tribute album of miles davis songs done in the style of early 8bit audio. The project was one of kick starter's early projects and was by all accounts a success. For the cover art Andy commissioned a friend to create an 8bit "pixel art" rendition of the original cover of the album on which the tribute album is based. Andy did his best to make sure everything was above board including properly licensing all the music. Unfortunately it never occurred to him that he needed to license the original cover. This is where things get murky.
The original album cover was shot by famed New York photographer Jay Maisel. Strangely enough, I have only recently discovered Jay's work. He has two videos on Kelby Training which offer a fascinating insight into the mind and work of this 80 year old artist. I was blown away after watching them as to the creativity and mind of Jay. I say this because since this story broke people have been saying some ridiculous things about him and personally attacking him on his Facebook page and on twitter without having any clue as to the person they are attacking. So why are they attacking him?
Maisel, or lawyers representing him sued Andy for use of his photograph. Andy tried to claim that it was within fair use rights but ultimately settled for $32,500. Not an insignificant amount to Andy, who actually made no money from the Album in the first place. In his own words:
After seven months of legal wrangling, we reached a settlement. Last September, I paid Maisel a sum of $32,500 and I'm unable to use the artwork again. (On the plus side, if you have a copy, it's now a collector's item!) I'm not exactly thrilled with this outcome, but I'm relieved it's over.
But this is important: the fact that I settled is not an admission of guilt. My lawyers and I firmly believe that the pixel art is "fair use" and Maisel and his counsel firmly disagree. I settled for one reason: this was the least expensive option available.
Since this story broke there has been an outpouring of support for Andy and an equal outpouring of hatred towards Jay Maisel. As I said in the start of the piece, I'm not entirely sure where I should stand on this. Part of the problem here is that this story was picked up by Gizmodo, and in typical Gizmodo fashion, rather than actually reporting on the facts of what happened they portrayed their opinion of the event as the facts of the case and insanity inevitably followed. Had this been reported on by a real news organization, an actual reporter would have at least attempted to contact Jay Maisel for a statement. Gizmodo's piece was entirely one sided and inflammatory, and people have since started posting hateful, obscene and personal attacks on Jay Maisel's website. (I'll remind you again, Jay is an 80 year old)
Having said that, I do think he was wrong in this case. I understand artists have to protect their work, but I think the handling of this was way too heavy handed. People defending Jay and saying it was just a photoshopped version of the picture are mistaken. People think pixel art is done with photoshop filters, but it is not. It's a painstaking process of hand drawing and is actually quite difficult. I think the problem with this is that the result was too good, but I think it's important to make clear, this wasn’t some clever photoshop process. It was a hand drawn piece of original art.
Secondly, the issue I have is why Jay Maisel is the one suing him, and not the record company. When I do a piece of work for a client and get paid for it, it’s theirs. Im not saying there shouldn’t be copyright protection but surely it should be columbia records choice to sue, after all they would have paid for it. I think this is why he never considered the rights of the artwork, because most people don’t realize that the photographer retains the rights even when someone else is producing a product featuring that photograph and already paid for it. As a photographer, I don't want anyone stealing my work, but If someone did something like this as an homage I'd actually be pretty flattered.
The other issue here is the way it was handled. There was no reason to peruse it all the way to a huge financial settlement. They could have just agreed that it was a mistake and stopped using it. Clearly he had made the efforts to work within the law and he made no money off the Album. I think this aspect is what has upset people the most.
The problem with this kind of case is how far does it go. At what point does it become ok, and does a piece of art become art in itself. In the videos Jay did with Scott Kelby Jay talks several times about taking photos of unique buildings and he also spends a good deal of time photographing a particularly striking building lobby. You could just as well argue that he is infringing on the rights of the architects who designed those buildings, or the interior designer who designed that lobby. They too are artists, so why should they be afforded any less protection.
At the end of the day, I think the reason so many people have been upset by this is that it's a clear case of wealth rules. It seems to point out that Copyright depends less on art and fair use than it does on who you are and how much money you have.