Jay Maisel + Asshole = 11,400 HitsJune 27, 2011
Some of you may be familiar with Jay Maisel. Some of you may know him as a talented photographer. Others may only read architectural magazines or NY Mag and such and know him from his 72-room mansion. Now, thanks to some extraordinarily nasty copyright thuggery, people all over the internet are getting to know Jay Maisel in a whole new way.
Jay Maisel + Asshole
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 then he ran into an unexpected problem:
But there was one thing I never thought would be an issue: the cover art.
Before the project launched, I knew exactly what I wanted for the cover — a pixel art recreation of the original album cover, the only thing that made sense for an 8-bit tribute to Kind of Blue. I tried to draw it myself, but if you’ve ever attempted pixel art, you know how demanding it is. After several failed attempts, I asked a talented friend to do it.
You can see the results here:
That’s when Jay Maisel, the original photographer, entered the picture:
In February 2010, I was contacted by attorneys representing famed New York photographer Jay Maisel, the photographer who shot the original photo of Miles Davis used for the cover of Kind of Blue.
In their demand letter, they alleged that I was infringing on Maisel’s copyright by using the illustration on the album and elsewhere, as well as using the original cover in a “thank you” video I made for the album’s release. In compensation, they were seeking “either statutory damages up to $150,000 for each infringement at the jury’s discretion and reasonable attorneys fees or actual damages and all profits attributed to the unlicensed use of his photograph, and $25,000 for Digital Millennium Copyright Act (DMCA) violations.“
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.
For an album that was created from $4,500 in Kickstarter funds, with all money going to the chiptune artists.
Andy Baio, who hired someone to craft an homage to an iconic album cover, who curated an album of covers with permission from Miles Davis’ publisher, who profited nothing from this experience other than the joy of creating something, is out $32,500.
Meanwhile, Jay Maisel, he of the 72-room mansion, is $32,500 richer.
Jay Maisel + Dick
And for what? Being able to wield copyright like a mafia thug’s baseball bat? For being unwilling to consider the work transformative enough to fall under “fair use”? For being so full of himself that he can’t even accept the hat tip of an homage?
I don’t care how much you may believe that copyright, trademarks, patents, etc. are good and just and fair, but in your mind, if you truly believe that Jay Maisel deserves 7 times the amount the album was created for, then you’ve got problems far beyond being too myopic to recognize a clearly transformative work.
And to argue that this isn’t transformative misses the point entirely. This isn’t some simple PS filter de-rezzing. It takes actual talent to create pixel art. See this for comparison:
And as to all this compressed, very black “art” scattered throughout this post? They’re simple ASCII conversions of iconic Maisel photos (done with this handy tool). These “pictures,” which took me all of 10 minutes to convert and post without using a single ounce of actual talent are transformative enough to avoid a copyright beatdown.
But actual art, created with actual talent? I guess that’s something to throw lawyers at.
Jay Meisel + Greedy
Jay, I hope whatever you spent Andy’s money on was worth it.