Kind Of Poop

A while back, I wrote about the Kickstarter project, Kind Of Bloop, a chiptune version of the Miles Davis masterpiece Kind Of Blue.

It was one of the early success stories for Kickstarter, raising over $8,000 on a $2,000 goal. (Of course, today, the big projects are raking in hundreds of thousands of dollars, though none have broken the $1 million barrier – yet.)

Unfortunately, Andy Baio, who launched the Kind Of Bloop campaign, got sued because of the cover art – a pixelated version of the original photo. Though he (and I) think that the artwork falls into the fair use category, he ended up settling for way more than the Kickstarter campaign raised.

Read more about it here.

The good to come out of this is a wonderful CD got made, and it got Kickstarter a lot of publicity. Hopefully Andy Baio got some nice bonuses as their CTO.

UPDATE (2011-07-01):

There’s a different take on the situation on this site. It’s a photography site, so the sympathy tends towards Jay Maisel, the photographer. The comments turn into a bit of a dogpile on Baio, mostly in a these-internet-kids-these-days-don’t-get-it / digital-manipulation-isn’t-really-art / the-album-sucked-anyway sort of way.

The big mistake made in the comments is comparing Baio’s licensing of the music to licensing the artwork. The way music and photos are handled are very differently. Baio licensed the music, not the recordings. There is no analogue for photography – you don’t need to pay royalties to a photographer before recreating a photograph.

I can record and release a version of a Miles Davis song without asking permission of the artist, composer, publisher, or label. I do have to pay royalties to the composer, but no one gets to tell me I can’t do it. A composer gets the right to decide the first publication of the work, whether they record it or give it to another performer. Any recording is covered by copyright and I need permission of the owner to copy it. But the music itself is a different matter.

A photograph is like the recording – it’s covered by copyright and if I want to use it, I have to ask permission. But what if I want to make my own version? There is simply no provision for that. I don’t need to ask Ansel Adam’s permission to photograph Half Dome.

Per Baio’s blog, the cover was drawn, not a Photoshop modification of the original image. It’s a new work of art which references the original. In a sense, it is a parody or comment on the original, in relation to the album itself. If this is the case, Baio is clearly in the right.

But what if they had used the photo and applied Photoshop filters until they got the look they wanted? It becomes a matter of degrees, and there is much gray area. To my eye, the Kind Of Bloop cover is easily identifiable as an 8-bit rendering, and thus very distinguishable from the original. More transformative than say taking a color photo and making it black and white. In the field of sampling and mash-ups, the debate over transformative/derivative works and fair use has raged for decades. To my knowledge, there has been much less debate in the area of visual sampling.

(The discussion of how the complaint was filed is another matter. As some commenters day, it is possible to be right but behave like a dick. Maisel could have sent a cease-and-desist letter before a $150,000 per violation request. But I don’t know the details of their communications, so perhaps that is not clear cut.)

However, as they say, I am not a lawyer. And Baio probably should have asked permission, just to cover himself. And had a Plan B in case Maisel turned him down. The situation is bad for everyone – Baio lost significantly on this, and Maisel is being made out to be a bully by the internet.

UPDATE (2011-07-02):

Thomas Hawk, a photographer who has nearly 60,000 photos on Flickr, sides with Andy Baio in this case. Hawk can be an opinionated jerk sometimes, but his opinions are, in my experience, generally founded in logic and sense.

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