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Copyright Shakedown over Album Cover Art

Yet another copyright outrage, from Gizmodo (h/t Paul Vahur):

Kind of A Dick Move

Avatar for Mat Honan —Photographer and 72-room New York City mansion dweller Jay Maisel successfully chiseled thousands of dollars out of independent (and awesome) Web developer Andy Baio over an iffy copyright infringement claim. It’s outrageous and wrong, and Maisel should be ashamed.

[Full disclosure: Andy and I were colleagues at a webzine startup more than a decade ago.]

The case stems over the cover art for the album Kind of Bloop, a chiptune remake of the Miles Davis classic, Kind of Blue. As Baio notes:

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 and giving the total profits from the Kickstarter fundraiser to the five musicians that participated. But there was one thing I never thought would be an issue: the cover art.

Unfortunately for Baio, it turns out that Maisel is an aggressive copyright defender. It meant that Baio had to shell out a $32,000 settlement, and plunk down another $10-15 thousand dollars in legal fees out of his own pocket. He is not allowed to use the artwork ever again.

Maisel, on the other hand, didn’t have to pay his attorneys anything to litigate the case. They take their fees out of his winnings, as he explicitly notes in an endorsement on his lawyers’ website.

They earn their fee by charging a percentage of what they obtain for you; no money for you, no fee for them. I highly recommend them.

I bet you do, Jay!

Interestingly, Baio may be in the clear, legally. The Supreme Court has weighed in on fair use and said it’s okay in the case of “transformative” works noting the judgement should focus “on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is controversially transformative, altering the original with new expression, meaning, or message. The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.”

But we’ll never know, because Baio settled claiming it was the least expensive thing to do. He doesn’t, however, admit any wrongdoing or guilt.

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{ 4 comments… add one }
  • William Beem June 24, 2011, 2:27 pm

    Jay may not have had to pay attorney’s fees, but that doesn’t mean he didn’t have to pay anything. The cost to file the federal lawsuit and have it delivered probably cost about $500, and there may be other costs that are outside of the attorney’s fees (including research costs).

    That aside, this wasn’t a shakedown. Jay owned the copyright and was within his legal rights to defend it. There is nothing wrong with aggressively defending intellectual property, particularly when it’s one of the most recognized photos in album art. Had he not defended his IP, it may lead to opportunities for other infringements.

    Baio should have inquired for a license, as he did with the music. Had he done so, all of this would’ve been avoided.

    • Stephan Kinsella June 25, 2011, 10:00 am

      Of course it’s a shakedown–legal extortion, basically. Of course Maisel was within his legal rights. But these legal rights are illegitimate. Of course there is something wrong with defending IP, since it’s a false property right and should not be granted by the state.

      • MarcW June 30, 2011, 12:02 pm

        “Those legal rights are illegitimate.”

        My brain just exploded. That word, I do not think it means what you think it means.

To the extent possible under law, Stephan Kinsella has waived all copyright and related or neighboring rights to C4SIF. This work is published from: United States. In the event the CC0 license is unenforceable a  Creative Commons License Creative Commons Attribution 3.0 License is hereby granted.