Copyright Settlement of the Day

Copyright Settlement of the Day: Back in 2009, Waxy.org’s Andy Baio produced Kind of Bloop, a chiptune tribute to Miles Davis’ Kind of Blue. It was one of the biggest early success stories for crowdfunding platformKickstarter.

Today, Baio announced he had paid $32,000 in a copyright settlement — not over the music, which he licensed from the publisher, but over the album cover, a pixel art version of the iconic Kind of Blue cover photographed by Jay Maisel.

Maisel sued Baio for copyright infringement, 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.”

Baio believed he had a “fair use” defense, based on the fact that the pixel art could be considered a “transformative work” that comments on the original. Unfortunately, proving that in court would likely have cost him more than 10 times as much as he paid in the settlement.

“My lawyers and I firmly believed that I was legally in the right,” he told Gizmodo. “But it doesn’t matter, fair use doesn’t protect you unless you’re willing to pay to defend yourself.”

Meisel totally needed the money, too, because it’s not like he lives in a 72-room, six-story apartment in Manhattan. Oh, wait.

Via The Daily Whatwaxy,  gizmodonymag

~ by The 1955 Hudson on June 24, 2011.

3 Responses to “Copyright Settlement of the Day”

  1. Maisel’s “elaborate mansion” is an abandoned bank that he bought decades ago when it was the next thing to a crackhouse. (If they’d had crack then it probably would have been a crackhouse.) If getting outrageously lucky by holding a piece of real estate for forty years takes away your right to ever criticize anybody else ever, things are going to get ugly.

    • Well, New York magazine described his “abandoned bank” as a “72-Room Bohemian Dream House” that’s estimated to be worth between $30 and $50-million clams. And there’s a skosh of a difference between criticism and a law suit 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.” I’m just saying.

      • 1) That’s what happens when you get outrageously lucky by holding a piece of formerly-abandoned real estate for forty years. How does that refute what I said? And how is is relevant to a dispute between said outtrageously-lucky artist and the equally-outrageously-lucky techie who sold a company (which consisted ALMOST ENTIRELY of intellectual property, by the way) for most likely in the seven-digit range and has held high positions in multiple well-capitalized startups? Maisel, if you count his won-the-lottery real estate, MIGHT have more money than Baio. But Baio is not a poor artist, being neither poor, nor, so far as I can tell, an artist. He said as much (about the poor part, anyway) on his Twitstream, and has said in so many words that this is not a David and Goliath situation.

        2) That’s the language of the statute. We don’t make this stuff up: we’re ethically required to track the language of the law we are citing when communicating about it. If you think the law sounds overly hostile, that’s a matter to raise with your congressman, not with Maisel or his lawyers.

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