Copyright vs. Fair-Use – or, What’s fair to some may not be to others

So here’s the story in a nutshell. A long time ago, photographer Jay Maisel took a photo of Miles Davis, which was then used for an album cover. Now flash forward to recent times where a gentleman used the image for a music project. He didn’t use an exact copy of the image, rather one that had been pixelated into what is known as 8-bit art. Personally I think it is way to similar to the original to even be considered a “fair-use”. In fact when I first saw the images in question I had a hard time telling the smaller versions apart. Well, I guess that’s what Jay’s legal representation also believed because they filed a copyright infringement suit for a large (read $150K) sum and just recently settled for about $32K.

Do I feel bad for the guy who did this? A little bit I guess since I don’t think he meant any irreparable harm and probably thought he was within his rights to do what he did. But on his own blog he admits to getting all the proper permissions for the music that was being used since it was a Miles Davis tribute. He went so far to as to say,

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

So if he went that far, why not consider the rights of the photographer that took the album cover shot?

The real interesting thing about all of this was the reaction that took place over at Jay’s Facebook fan page. There were people clicking the Like button just so they could leave some nasty, nasty comments. There was a hate party going on that was hard for me to believe and I have seen some pretty nasty ones over the years (think Mac vs. Windows times 10). The really interesting thing is that people seemed to be going after Jay like he was some huge corporation that had strong-armed the little guy into submission with his legions of lawyers. If this had been some small struggling photographer whose work had been used by the Mondo Corporation without consent I think that the sentiment would have been totally reversed.

Here’s the bottom line as I see it. Party A used the property of Party B without permission. The law gives Party B the right to protect his property and collect damages. It shouldn’t matter if Jay has as much money as Bill Gates or not. It should also work they same for some amateur photographer who uses a point-and-shoot. What really matters here are the rights of the copyright holder to protect his work.

I’m not a big fan of Fair Use when it involves using someone else’s work in such a way that it looks pretty much the same as the original work. I believed this about the Obama poster and I believe it about this case. Are there grey areas in this discussion? Absolutely there are and the courts have been ruling back and forth on it since it’s inception in 1976. That’s probably because, in the artful sense of things, how much change dictates a transformative version is subjective at best. It’s not like you can assign a percentage – “well, I changed 51% of the image and therefore it’s fair-use”. I think that one day this issue will probably end up in the Supreme Court but just as Justice Potter Stewart said when describing when something is pornographic, “I know it when I see it…” and the way I see it, Jay was in the right.

- Please feel free to give your opinion on this subject but do so knowing that this is my blog and I WILL censor and remove any comments that are not in the spirit of conducting a productive discussion.

  • Nicole Youn

    Fair use really needs to specifically address images and photographs. My understanding of it is that it is very clear for quoting written work … but how does that translate to an image? In other words, it doesn’t, it’s all about how people interpret “Fair Use” for images ( There are too many fuzzy lines where there should be distinct legal limitations or leeways, IMO.

  • Thomas Fitzgerald

    First of all, let me say off the bat that I’m normally a big fan of Jay Maisel. But I think this situation is wrong and entirely unnecessary.

    Your point that:

    “He didn’t use an exact copy of the image, rather one that had been pixelated into what is known as 8-bit art.”

    is incorrect. This wasn’t some clever photoshop process. It was a hand drawn piece of original art. I think that’s where people are getting confused here. If he had just taken the picture and run a few filters on it then fair enough, but this was recreated by an artist from scratch.

    Secondly, the issue I have is why Maisel is the one suing him. When I do a piece of work for a client and get paid for it, it’s theirs. This idea that you should keep getting paid is ridiculous. Im not saying there shouldn’t be copyright protection but surely it should be columbia records choice to sue, after all they would have paid for it. I think this is why he never considered the rights of the photographer as you put it, because most people don’t realize that the photographer retains the rights even when someone else is producing a product featuring that work.

    The other issue here is the way it was handled. There was no reason to peruse it all the way to a huge financial settlement. They could have just agreed that it was a mistake and stopped using it. Clearly he had made the efforts to work within the Law. I think this aspect is what has upset people the most.

    And lastly a lot of what Jay does (especially in the videos he did with Scott Kelby) is street photography, and several times he talks about taking shots of buildings and lobbies etc. You could just as well argue that he is treading on the rights of the architects who designed those buildings, or the interior designer who designed that Lobby that he keeps photographing. Why aren’t they afforded the same copyright protection as a photographer? (and I say this as a photographer and an artist).

    At the end of the day copyright depends on who you are and how much money you have. That’s why people are so annoyed about this.

    • jeff

      Hey Thomas, thanks for the comments. To answer your question about why Jay was the one suing, it’s because he still owns the rights to that image. He didn’t give them away to the record company, rather he gave them a limited use license so that he still maintains his original rights. As for the comment about buildings, the law is pretty explicit on that one. There are however buildings like the Eiffel Tower that have a copyright on the light show. So you can photograph the tower as much as you wish and even use it for commercial purposes but if you use photos or videos of the light show ( for commercial applications) you are going to be in trouble.

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  • Steve Kalman

    I think the problem for the infringer specifically and for everyone generally is that they forget that copyright applies to so many component parts. As he said, he went out of his way to get music permissions, and I suspect that had he thought about it he would have contacted Jay. To me, that’s what makes it a harder moral (but not legal) decision.

    The really sad thing is that artists don’t often think about the rights of other artists while still wanting to protect their own rights. I’m thinking of photographers who add unlicensed music to their slide shows, for example (and sometimes justify it by saying their slide shows aren’t commercial or being offered for sale).

    Perhaps we need an awareness campaign within our industry.

  • Bernie Greene

    I’m pretty sure Jay was within his legal rights. Which is to say nothing very much. I am eagerly awaiting his explanation of the case. I’d like to know what possible damages he considers he has suffered and how they amount to that much money.

  • OThomas

    I’m with Jay on this one, the guy as he admits went and gained permission to use the music, so he obviously recognises the rights of the artist to their property. Why didn’t he seek permission to license the image from the photographer?

    As far as modification of an image is concerned, if the original art is still recognisable then you need permission to use the image, for whatever reason.

  • Kevin Behringer


    I appreciated your level-headed review of this situation. As a fan of Jay’s work, I’ve been following this closely and so much of the commentary/criticism has been made up of wicked personal attacks which do nothing to serve the dicsussion.

    It seems that so many people are upset that this “millionaire photographer with a $40 million mansion sued the little guy.” It’s all emotion and gut reaction that they are throwing out there. They don’t realize that the house he lives in didn’t cost that much to buy…he bought it years ago for far less. Plus, yes, he’s made a lot of money selling some great photographs over the years, but does being well off then preclude him from the legal rights of an American citizen.

    All that said, I do wish he hadn’t jumped right to the courts. I wish he had approached this gentleman and said that it was not fair use and he should discontinue. So much could be avoided by just treating each other like people.

    I hope that Jay comes out and gives his side of the story, because right now it’s very one-sided.

    I’d also like to address a couple of the points others made.

    Thomas said, “I think this is why he never considered the rights of the photographer as you put it, because most people don’t realize that the photographer retains the rights even when someone else is producing a product featuring that work.” So, because someone didn’t realize the law, it doesn’t apply? I’m not lawyer, but I don’t think that’s how it works.

    Thomas also said, “This wasn’t some clever photoshop process. It was a hand drawn piece of original art. I think that’s where people are getting confused here. If he had just taken the picture and run a few filters on it then fair enough, but this was recreated by an artist from scratch.”

    So, just because someone did it by hand to recreate the photo by scratch it makes it ok? So, if a talented artist forges a painting and sells it, that’s ok because it’s recreated by an artist from scratch?

    I think there are many things in play here and I hope that Jay will clear things up from his viewpoint soon.


  • William Beem

    Using the concept of Fair Use as an excuse to produce a work as the basis of something new is a concept that I don’t like. If you know that you can’t create your work without someone else’s work (e.g., your work is not original), then why is it so hard to approach the owner of the original work and seek a license? You may get what you want or you may get denied. The point is that it’s not your decision to steal something without consequence and then claim “It’s OK, I’m an artist.”

    No, you’re a thief.

    • Craig Thoburn

      Bill, I think you run into a slippery slope with your argument. Everything around us is based on taking an idea and improving on it. Even the art of photography is constantly using techniques from those who came before us (even trying to reproduce the same shot or angle.) If everything had to be original there would be no new movies, photos, cars, food, anything… Everything has been done. We would not have Beethoven or Bach who barrow liberally from others (it was considered a compliment in those days.) Sites like show how even movies like Star Wars was built on films before it (in some instances exact duplicates of scenes in a new context.) I look at situations like this one and without getting into who is right or wrong (the law is pitifully vague) what I see is an entire generation of creative works that will never come to fruition, because we have decided we can own an idea or a pose. If it is based off of the AP Photo of Obama or this image of Miles Davis it is still something new based on something great that came before. I think of the Bernard of Chartres quote (I wonder if I should have to have permission to use a quote…hmmm) “we are like dwarfs on the shoulders of giants, so that we can see more than they, and things at a greater distance, not by virtue of any sharpness of sight on our part, or any physical distinction, but because we are carried high and raised up by their giant size.” Jay Maisel is certainly a giant. Andy Baio didn’t steal Jay’s image. He did a clever variant that was both a tribute and a new piece of art. He didn’t claim to have taken the original photo and anyone buying the new album would most likely know about the original album and appreciate his attempt. If you spend some time on Amazon there are thousands of clever variations everything from Beatles album covers to the Mona Lisa. I think Jay was most like well within his rights (he certainly isn’t evil and there is nothing wrong with success, I wish it for everyone), but it is a shame that he didn’t take it as a compliment rather than an affront. Just my two cents (by the way I love your blog.) -Craig

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  • Phil Connor

    It seems to me, given the fact that what made the photo famous was Miles Davis’ performance, that Maisel could have picked up the phone and called Baio and not the lawyers … Maisel was and is in the right … one, however, does not have to exercise that right with a nuclear weapon when a wrist slap would have sufficed … and that is why this has stirred up such a hornet’s nest … his actions and response were not proportionate to the offence … he deserves all the Facebook comments he can handle .. and then some .. imho …

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  • Dominic Lee

    I find it amusing how many comments suggest he should have just picked up the phone and said “you naughty boy, don’t do it again”. Wouldn’t it be great if the police had that mentality? “I’m sorry for robbing the bank, I didn’t realise your money was in there officer”
    Ok Mister, just don’t do it again!

  • Ken

    Visual artists are particularly bad, IMO, at feeling they have the right to take something from someone else and transform (in some/most cases, bastardize) the original into something they think is artsy. Most often, the derivative work is much worse than the original.

    All artists need to start from the attitude, if I didn’t create it, I need to ask permission to do something to the original because I didn’t create the original. Of course, this isn’t the legal requirement, but it is the moral requirement.

    There is a huge difference between using the work of others a inspiration for a new work, and taking the work of others and modifying it according to your desires.


  • Portrait Photographer

    Copyright vs. Fair-Use – or, What’s fair to some may not be to others is a useful post that delves into the tricky matter of copyright. As a Portrait Photographer, found it particularly useful. Thank you for posting.

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