Kind of Bloop

Earlier this week, Andy Baio revealed that he had paid an out-of-court settlement to photographer Jay Maisel for creating a pixel-art version of the photograph on the cover of Miles Davis’ Kind of Blue, which he commissioned as part of his Kind of Bloop project.

His post on the subject is a thought-provoking and sobering read.

Remember Kind of Bloop, the chiptune tribute to Miles Davis' Kind of Blue that I produced? 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 there was one thing I never thought would be an issue: the cover art.

Of particular interest is his Where would you draw the line? exercise at the bottom of the post.

For a quick look at the original, a down-scaled copy, and the Kind of Bloop cover, see this image (found via the comments on this lovely little post). It's also worth looking at because I've seen a lot of angry accusations that the Kind of Bloop crew must have just scaled the cover down in Photoshop, which is utterly dismissive of the work required to make this stuff

A lot of the commentary on this so far has been about how Jay Maisel must be a massive dick out to screw the little guy, but I don't believe it's really that simple. I bet his goal is something similar to what Stetson and other corporations do in the sense that if you don't aggressively defend your intellectual property, you're going to lose it. 

A post on The Online Photographer comes out arguing for Jay's point of view; Mike Johnston and co-author Ctein both believe that Andy is in the wrong. Both of them base their arguments on one of the grayest areas of fair use: whether the work is "derivative" or "transformative":

[Andy] doesn't seem to understand that the specific major compositional and design elements in a photograph are protected, not just the fine details. […] there's also solid case law that converting a photograph to another medium, such as drawing, painting or serigraph, is not inherently a transformative act.

Stated that way, it's harder to argue that Andy was in the right. (Ctein also raises the idea that if that Shepherd Fairey-Obama-Hope case had gone to court, it would have answered a lot of questions. Agreed.)  

From the TOP post, commenter Rodolfo Canet pretty well nails how I feel about this:

Law technicalities and lawyer greed aside, I think the money Andy had to pay is outrageously high for the damage supposedly done, and Jay had to be aware of that. If he thinks his rights are so important to make a guy pay a one-year salary for that, it's OK, but I'm not feeling too much sympathy for him.

What do you think?

By the way, I picked up the Kind of Bloop album (it's only $5 and I think Andy could use the money about now) and it's really quite lovely.

(I picked up on this story initially via Daring Fireball, who's been all over this)

Am I doing it wrong?

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