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.