Some Musings on Fair Use

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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.


Brian Spears's first collection of poetry, A Witness in Exile, is now available through Louisiana Literature Press, and at his personal website. He is Senior Poetry Editor at The Rumpus. More from this author →