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Jay Maisel + Asshole = 11,400 Hits

June 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
11,400 hits

Here’s what happened. Andy Baio (of waxy.org) decided to compile an album of chiptune Miles Davis covers. He did everything he was supposed to:

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.

$32,500.

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
323,000 hits

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
73,200 hits

Jay, I hope whatever you spent Andy’s money on was worth it.

-CLT

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9 comments

  1. Playing devil’s advocate a bit, I would assume Meisel has a well compensated attorney on retainer who chases down copyright infringement (?) and that Meisel deals with infringement on a regular basis (?) and feels the need to swat them down case by case (?). If you are being inundated with infringement infractions it might be harder to winnow out (and pardon) the sympathetic, homage paying transgressors like Baio.


    • That very well might be, but in Andy’s article, he points out that this discussion between him and Maisel’s legal rep went on for seven months. At any point in time, this could have been brought to the photographer’s attention (and possibly even was) and been handled differently.

      Now, I’ll advocate with you and say that Jay’s dealing with a ton of infringement, almost all of which is straight-up reselling, etc. of unaltered photos from his collection. This should have been seen as something different by someone, but chances are that either Maisel’s lawyer (or Maisel himself) decided this should be treated like every other instance.

      He should have had some indication that this was not the best way to handle it if the takedown of his FB page is any indication.

      dead link: http://www.facebook.com/jaymaisel

      The other question that gets tiptoed around in these discussions is not whether this is infringement or not (this discussion will go on forever), but rather, if it is infringement, is the $32,500 a “fair” amount to charge a person for using your work? Shouldn’t the damages be somewhat aligned with reality (a $4,500 crowd-sourced album sold for $5 per), rather than an arbitrary percentage of the sky-high “up-to-and-including $150,000” that goes hand in hand with the phrase “statuatory damages”)?

      You can probably tell by my judicious use of quotation marks how I feel. But what’s your take, as I know you have your own IP battles? (Seriously. I’m curious to hear your side.)


  2. At first, you’re startled, then perhaps flattered (after all, your work is worthy of copying), then alarmed (“”What?!!? AGAIN? Motherfuckers!!”), then SERIOUSLY ALARMED, then…”Barb, call Abe and find out the name of that copyright lawyer he’s always talking about and put his ass on retainer!” From what I can see, that was copyright infringement and Meisel had a solid case. Yes, he could be magnanimous and issue a warning, a cease and desist, a pardon or negotiate a sliding scale fine, but I have an inkling he is just fed up (or in my particular case ‘fed the fuck up’) with copyright infringement. He probably has so many cases he is no longer personally involved.That’s one side of the coin.

    Nobel laureate Richard Feynman said he didn’t understand the Nobel Prize (“I won’t have anything to do with the Nobel Prize…I don’t understand honors…I understand other physicists use my work, but I don’t need anything else, I’ve already got the prize. The prize is the pleasure of finding the thing out, the kick of the discovery, the observation that other people use it…I don’t believe in honors…it’s unreal…honors’ bothers me…” I think you belong in the Feynman camp, Cap. He did what he did for the love of it and Feynman truly despised anything that smacked of honoraries or exclusivity.

    That’s a hellofa camp to be in. Dunno, blame the lawyers?


    • Thanks for your input on this. I think that even if Maisel has a case here, the damages are way overboard. I can understand the frustration of infringement but I rarely agree with the tactics used to curtail it. Statutory damages may, in theory, be as high as they are as a deterrent, but they completely make a mockery of any sense of justice. Very often, the fiscal punishment far outweighs the crime and because of that reason, many people and businesses do nothing but mass mail settlement letters, rather than actually pushing their chosen creative expression forward.

      I’m all for blaming the lawyers. (And for being grouped with Feynman, at least in this respect.)


    • He does not “have a solid case”. This is Fair Use, which is not copyright infringement.


  3. Fucking lawyers. I think I am a ‘Fair Use’ kinda guy. Concerning my own images, I would allow derivative usage with attribution and I have always felt this way, even when I was ‘doing photography’ for a living. This is clearly homage. Hey, but what do I know. Well done.


    • Lawyers: making the world “actionable,” one lawsuit at a time.

      I find this to be an obvious homage. It’s a stretch to assume that Baio’s digital album would have sold less without this art. It’s a frickin’ digital album. You get a jpeg with your download. It’s not as if this was an LP sent to actual brick-and-mortar, and even if it was, I can’t name a single time I bought an album for the cover art.

      Thanks for the sensible attitude and comment, RXJ. I’m glad you’re still going to be on the internet to kick around/kick me around.


    • Had there been a Nobel prize for decency, Feynman would have won that too (and modestly declined).


  4. Listen Jack ass, you STOLE someone else’s property. Go make you own image of Davis. I think you should be put in prison.



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