I’m a bit of an anarchist when it comes to Intellectual Property, especially in the realm of art. I imagine that makes me a bit of an outlier, and I think my position stems, in part at least, from the fact that I don’t expect to ever make much money from my art, so from that perspective at least, I don’t have much to lose by blowing up the system. I’d like to think that if I ever created something so recognizable that other artists decided they wanted to repurpose it, mash it up with other things, even openly mock it, I’d be so flattered by the attention that I wouldn’t object, but to be honest, I don’t know how I’d react. It’s easy to be an idealist when you don’t stand to lose anything, after all.
I started thinking about this (again) a couple of days ago when I read this piece by Andy Baio about his experiences working on a project called “Kind of Bloop,” a chiptune version of the powerful record by Miles Davis, Kind of Blue. Here’s the short version–Baio licensed the songs and then made an 8-bit version of the cover art. And then he got sued.
At this point I want to point out that even though I’m working from Baio’s version of events, the text was apparently approved by Jay Maisel’s legal counsel, so I have no reason to believe the facts are wrong here. (Jay Maisel is the photographer who took the photo which became the cover of Miles Davis’s Kind of Blue.) Baio sets out what I think is a pretty compelling case for fair use, but as I noted above, I’m sort of an anarchist on these things, so my position is hardly surprising. Baio’s piece is obviously transformative, and if anything, will reinforce the market value of the original piece.
It’s this part that really got my blood going, though:
And it’s worth noting that trying to license the image would have been moot. When asked how much he would’ve charged for a license, Maisel told his lawyer that he would never have granted a license for the pixel art. “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, and used in a number of forms including on several websites accessible around the world.”
So again, it’s easy for me to talk smack here because I don’t have anything at stake in this case and because I’ve never been in a position to see someone transform a piece of my art–in my case, my poems–into something new and potentially offensive to me, but my immediate reaction to this part (which I posted to Twitter) was that if you feel violated (which I read as a synonym for raped) over someone transforming your work, then you need to get the fuck over yourself. I probably could have done without the f-bomb, but the sentiment is accurate.
And that sentiment comes from my view of the artist’s relationship with the public. My view of poetry, for example, is strongly informed by something one of my first creative writing teachers once wrote. In his essay “Some Observations on the Line” from his book Patterns of Poetry, Williams writes “To pay attention to the line is not to suggest that a poem exists on the page. It doesn’t. A poem comes into existence when the imagination of a writer and the imagination of a reader confront one another inside an act of language… The poem in print is the ground on which the meeting takes place.” To spin that out a bit, a poem doesn’t exist without a reader, and for me at least, a work of visual art doesn’t exist without someone other than the artist experiencing it.
But what are the implications of that? I think it means that in order to be an artist, one must necessarily be a public figure, and that means you give up some control over how your work is accessed. We do this already when it comes to interpretation–artists can’t control the reactions the public will have to their work; if they could, it would make for pretty crappy art, I think. What Baio did is an extension of that, and it’s a necessary component of contemporary art, of all art for that matter.
Baio went beyond personal interpretation–he took Maisel’s photo and experimented with it, repurposed it, transformed it–but he didn’t “violate” Maisel’s work or Maisel himself. The second that image was released, it became open to transformation. Maisel is seeking an impossible level of control over his work, one I wonder why any artist would seek. The fact that Baio found that image to be a necessary component of his own project is an incredibly flattering testament to the impact of Maisel’s work, and that wouldn’t change even if Baio had decided to use Maisel’s image in a parodic or mocking way.
It’s a shame that Maisel doesn’t see it that way, and that he was able to use the threat of a lawsuit to kill this project.
4 responses
I had started to write a rant about how copyright stifles creativity, along with the requisite creative commons propaganda, but then I actually went and looked at the cover of “Kind Of Blue”. I can see why Jay Maisel is so protective of that image. If he wasn’t, then someone might point out that a 5 year old with an iPhone could easily reproduce it, were Miles Davis still alive. I can’t imagine Maisel did anything more than walk up to the stage and push a button on his camera.
The power of that image has absolutely nothing to do with the photographer. Much like the iconic image of Che Guevara that has graced a million t-shirts, it was a result of pure, dumb luck. Far more effort and artistry went into the pixelated reproduction than into the original. Mr. Maisel is likely very much aware of this and realizes that anyone could have gotten lucky enough to take the photo and built a career from it. His overprotectiveness probably has very little to do with his sensibilities as an “artist” and everything to do with being terrified that people might realize that he’s a fraud.
I sincerely hope that this springboards into a meme in which people parody Maisel’s work.
It comes down to ownership and our belief that we own anything at all. At this point, the image owns Maisel, and this is proving to push him to do ridiculous things like sue over fair use laws. I agree. It is time for him to get the fuck over himself.
Once we have created it, it is no longer the property of the artist, but the property of all who interact with it, just as that image is a part of every person who has viewed it. It is art if it is shared, masturbation if it is kept private. At this point, Maisel is publicly masturbating, and it ain’t pretty.
I’m a middle-of-the-roader when it comes to copyright, though I feel like this is a fantastic fair use case — at least ideologically. It may be a bit weaker legally. I haven’t done the rundown to see where the case was brought or likely to have been brought and what law specifically applies there, but we’re at a point where some jurisdictions really encourage any sort of use that transforms the original work, even simply changing the purpose of its use. (E.g., one court bought a fair use defense when a photograph initially taken of a model for a photographer’s portfolio was repurposed to illustrate a news story about the model and the photograph.) Other courts are less lenient, so there’s both hope and still reason to be afraid.
Part of the reason to be afraid is that uncertainty in fair use law makes it really hard for the little guy to win without pro bono help. Each work, if willfully infringed (and that’s a pretty low bar), could cost the infringer up to $150,000. If you’re not certain about your fair use right, a right that helps protect the First Amendment against creeping copyright claims, the threat of that penalty plus the cost of your own legal defense can be terrifying. The opportunity to settle for $35,000 may seem ideal. Or, as Baios put it, it may seem like the only feasible option. Unfortunately, whenever that happens, case law doesn’t get pushed forward. We make no progress in reforming copyright and strengthening fair use.
If you do get hit with a copyright infringement claim and feel like you have a good fair use defense, contact your local law school and see if you can find a clinic to help you. There’s an opportunity out there to find good, free legal assistance from people who are excited to help with these cases. Don’t rush into a defense or a reply if you don’t feel confident with your help, though. Remember that it is still a pricey loss and a risky win, but also remember the help may be out there.
For what it’s worth, Maisel may not care one lick about the integrity of the piece. Even if he does, there’s a good chance he doesn’t feel “violated.” Remember, his lawyer wrote that letter, gets paid for winning, and has a much better chance to do so with an ideal Maisel who feels “violated” than he does with one who feels like he could enjoy making $35,000 for a photo he took years ago, not to mention the money he gets by reminding people that they need to license that shot for their t-shirts and posters and album reprints.
NB: This is not professional legal advice. If you do find yourself in a situation like this, do remember to look for help quickly since these issues are much more complicated than these few paragraphs.
As a quick middle-of-the-roader p.s., I do think Maisel showed some real artistry with that shot and he does deserve protection for the work. Boring attempts to profit off the photo by simply selling it as a poster, t-shirt, coffee mug, etc., probably shouldn’t be allowed and encouraged to be produced without Maisel’s license quite yet. Maybe not for too much longer, but the guy still took a very nice shot not so fantastically long ago.
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