Posts Tagged ‘jay maisel’

Kind of Fool

24 June 2011

Dear J-

There is a fair amount of traffic about Kind of Bloop, a chiptunes cover of Miles Davis’ Kind of Blue, specifically about the cover image and whether or not Jay Maisel is a giant tool. In a nutshell, Andy Baio, one of the founders of Kickstarter, put out a little collaborative project to re-do Kind of Blue in a synthesized fashion, first raising funds through a group funding project like Kickstarter, then securing music rights and permissions, and finally commissioning artwork before publishing it all for $5. So far so good. In Feb 2011 the lawyers for Jay Maisel, who photographed the original cover, contacted Baio with a cease-and-desist because the cover art was a pixelated derivation of Maisel’s original. But does it fall under the rights extended by fair use? This is based on my reading of fair use based on internet research (okay, the wikipedia interpretation).

Internet sympathies are running on Baio’s side on this. Maisel’s lawyers erred when they failed to muzzle the terms of the settlement ($32,500 to Maisel out-of-court), which makes Maisel look like a greedy rich man asking for yet more. Baio’s told his side of the story but Maisel has been slow to respond, cementing the initial leap to judgement. It’s presented as a David versus Goliath lawyers fight. It’s not: Baio thanks his own team of lawyers at the end of his post. If permission was granted to make covers of the music, why wasn’t Maisel contacted long before the derivative mosaic/pixel work was produced? If you consider a photograph to be copyrightable then you acknowledge the photographer’s vision, which includes composition, color, and tone. It would be a chilling ruling to all creative professionals if derivatives were allowed to be sold freely.

If you look at fair use doctrine for copyrighted works, there is a four-factor balancing test as well as past precedents that are significant in this case. From 10 U.S.C. Sec. 107:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

2. the nature of the copyrighted work;

3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4. the effect of the use upon the potential market for or value of the copyrighted work.

The use of Maisel’s photograph, especially without prior consent, appears to violate factor 1. Although it would be hard to say that you were making a substantial income on a $5 album of chiptune covers, it does fall under a commercial use. But at the same time the cover album may be driving people to the original and causing sales to increase, so you could regard it as being a form of advertising, though the overlap in the market for $5 chiptune albums and jazz devotees (who don’t already own a copy of Kind of Blue, which is regarded as the if-you-own-one-jazz-album-this-is-it album) may be regarded as vanishingly small.

The substantive portion of Baio’s case rests on whether or not the pixel mosaic is sufficiently transformative and not derivative. I’d have a hard time arguing that, as the only original input to the mosaic appears to be the way the pattern in the tie is rendered — everything else, from color to composition is recognizeable from the original photograph. In a way it reminds me of Apple and Samsung: folks will tell you that there are only so many ways of building a touchscreen phone or tablet so naturally the Galaxy S and Galaxy Tab look like an iPhone or iPad. It’s not a random coincidence — from look to icons to the TouchWiz skin to feel, the overall experience is aimed at aping the iOS experience. And that’s all the pixel Mosaic art for Kind of Bloop does, imitate without adding any input. Miles Davis in pixel form jamming away on a C64, yes, or hammering on a DMG-001 GameBoy, sure, that’s transformative enough to be fair use.

It’s easy to throw out these ideas in hindsight, but it’s also troubling that more effort wasn’t put into either contacting Maisel or ensuring that the work was more transformative. Couple that with the pixel mosaic being used in a commercial capacity I’d guess that the fair use argument was weak enough that the settlement, which appears to be bullying, probably is pretty fair to both sides. Yes, it appears to suck, but we also haven’t got both sides of the story yet — was there a cease-and-desist first or just a threat to sue? Four months is a long time to hammer out an agreement.

Mike

This is a particularly well-reasoned take on the issue. Comments also contain some of my same sentiments here: why would creative professionals fall over themselves to attack Maisel in this instance?

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Seeing Wide

30 October 2008

Dear J-

You’ll see it in the pictures from Palm Springs, aside from the zoo pictures; frustrated with having to stay far from my subjects, I picked up and started using the adapted 16mm Fisheye-Nikkor for a good portion of my shots.  The distortion is actually pretty subtle — it looks like a lens with noticeable barrel distortion, but as long as you keep the lines running through the center, they’re not bad at all.  It made it easier to grab some of the group shots in San Jose, too, where quarters were tight and the adapted 35mm Elmarit-R was a touch too isolationist.

So that’s why, for my first autofocus lens, I chose a wide zoom.  It’s fun to stick the manual glass in front of the 4/3rds sensor, but ultimately limiting; short of exotic focal lengths and lenses (without the Fisheye, I’m not sure that I would have stayed sane for much longer), there’s no easy way to get the angle of — let alone focus — anything much shorter than a true f=35mm lens.  Even that’s a mild telephoto when put onto the 4/3rds system, and while it helps isolate the attention onto what you want, it’s a crutch for composition.  Let me explain.

I once read an interview with Jay Maisel, where the joke was that a f=300mm lens (in 135 film terms) served as his wideangle, and knowing the arsenal he had (reputedly the longest lens Nikon ever made in regular production — the f=2000mm Reflex-Nikkor), I can believe it.   Seeing wide is a matter of editing your views; you have to be able to make sure that everything in the frame strengthens the picture.  The point is that it’s relatively easy to isolate and cherry-pick some interesting detail with a telephoto; Maisel had the trick of finding patterns and geometry in those details as well.  Peeping through the viewfinder now is a revelation; I used to say that the first time I held up a f=35mm lens on my old film cameras, it encompassed pretty much exactly how I saw the world.  With the adapted lenses, I think I’ve gotten a bit of tunnel vision, and the new lens has been like taking that cone off my head.  It doesn’t mean that I’ve got the hang of it again, but I’ll keep at it.

Mike