Fair Use of the Week: “Kind of Bloop” – by “Max C.”

Jay Maisel took the iconic photo of Miles Davis on the cover of Kind of Blue (I’m listening to “So What” right now). Years later, Andy Baio used the same photo on the cover of Kind of Bloop, a remix of Kind of Blue into 8-bit sounds. To make a short story shorter (click through to read Andy’s full side of the story), Maisel thought Baio was infringing on his copyright, and Baio settled for paying $32,500. Andy Baio:

But this is important: the fact that I settled is not an admission of guilt. My lawyers and I firmly believe that the pixel art is “fair use” and Maisel and his counsel firmly disagree. I settled for one reason: this was the least expensive option available.

Maisel goes through his post and does what we normally love to do here: analyze the four factors you know and love:

The purpose and character of the use
The nature of the copyrighted work
The amount and substantiality of the portion taken, and
The effect of the use upon the potential market

Baio and his legal gurus think that the first issue— the transformation— is the key one. It’s also the hardest to ascertain, so I’ll leave it alone for a second. In my entirely unqualified opinion, here’s the analysis on the second through fourth factors:

The nature of the copyrighted work
Is Maisel’s original photograph science? Fact? Biographical? Historical? It might be biographical and historical, but I’ve gotta side with Maisel on this one: it’s a creative work and thus falls squarely against a fair use finding.
No fair use: strike one.

The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
It used Maisel’s whole photograph. But it didn’t use the whole resolution. Baio points out the absurdity of this component of fair use: where do we draw the line on the resolution?

Baio defends himself on the third factor by asserting,

With regard to the third factor, although the illustration does represent the cover of Kind of Blue, it does so at a dramatically reduced resolution that incorporates few of the photograph’s protectable elements. Courts routinely find fair use even where the entirety of an image is used.

The reason why courts find fair use even where the entirety of an image is used is because fair use has more than just the third factor! I’m sure that were fair use only the third factor, it wouldn’t be fair use to use the whole image.

What are a photograph’s “protectable elements”? Some quick Lexis-Nexis arrives at an interesting holding from Metcalf v. Bochco, which states, “The particular sequence in which an author strings a significant number of unprotectable elements can itself be a protectable element.” Heck, “the arrangement of puppies in a photograph may constitute a protectable element.” (Corwin v. Walt Disney Co)

Big. Huge. (thanks for that one Tiger) Obviously, a pixel isn’t copyrightable. But a series of pixels, strung together, can be— and Baio’s string looks suspiciously like a sequence of unprotectable elements that end up being protected. No fair use: strike two.

The effect of the use on the potential market for, or value of, the copyrighted work.
Maisel claims that,

“[Maisel] 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.”

OK, I get it— Maisel’s a purist. He felt violated. I feel violated every time I get touched in my naughty bits, but it still doesn’t lower the value of my goods. *rimshot*

(Jokes aside, there’s a worthy debate about artistic rights of control— we all are owners of copyrighted material, and I think most people feel that as owners we have the right to control our works. But that’s not the constitutional basis for copyright, nor can it possibly be comprehensively considered in this blog post. Suffice it to say despite making light of it, I care a lot about Maisel feeling violated, but have no final conclusion about artists’ rights.)

No one in their right mind was considering buying Maisel’s photo of Miles Davis, saw Baio’s album cover, and bought that instead, destroying the market value of Maisel’s photo. Or at least, no one would have prior to this lawsuit. But this whole press debacle probably cost Maisel’s work a lot of value. Fair use! Baio’s still alive!

The purpose and character of the use.
OK, so it all comes down to the transformation issue after all. Did Baio’s piece transform Maisel’s work into something new?

I really wish this one had been settled in court, by a judge, who would have had to write an opinion. This settlement denies us the richness of a judgment to refer to in future cases. Instead, I’ll just have to ask myself if there’s new expression or meaning in a pixelated photograph. In context, as an album cover to an 8-bit Kind of Blue, it adds meaning and transforms without stepping on Maisel’s toes. But on its own, I’m uncomfortable with a ruling that would lead to art that has merely had its resolution changed to leaping from the artist’s control into anyone with a copy of Photoshop.

Fair use, once and for all. But that unofficial-Max-Cho ruling has no standing anywhere except my own mind. And it doesn’t mean that resampling an image alone constitutes fair use: due consideration must be given to the transformation of the message— if something truly new is communicated.

Promoting Science and Useful Arts

Sorry Andy Baio, and sorry Jay Maisel for this rough legal ride. I doubt it was a pleasure for either of you, and am saddened and irritated by a legal process that leaves both parties upset, society pissed off, and the world less one fine album cover. I’d like to remind everyone that copyright doesn’t exist in a vaccum: copyright is granted to “promote the progress of science and useful arts.” Any fair use issue whose decision fails to promote the progress of science or useful art is a bad fair use outcome, and I think this is a prime example. It cost both Maisel and Baio a lot of money, harmed two artists, and left the spectators dissatisfied and concerned, and angry. There’s gotta be a better way.