"Kind of Screwed"

Andy Baio's copyright run-in is an all-too-familiar story.

My friend Andy Baio just posted Kind of Screwed, a telling of his legal travails around Kind of Bloop, his 8-bit tribute album to Miles Davis’ “Kind of Blue.”

Andy went to great lengths to license the music involved in the project, and believed that the cover art was a fair use modification of the “Kind of Blue” cover art. The photographer for the original cover, though, disagreed, and threatened Andy with a lawsuit.

I’ve posted on Radar before about how much I admire Andy’s blog for the online form of journalism he often practices. He talks in his post about how the lawsuit threat has made him hesitant to publish anything at all. Despite that, though, Andy negotiated the right to post the full story to his blog. That in itself is a huge accomplishment and service — almost always, DMCA claims that end in settlement include a ban on speaking publicly about it. You should read the story, and when you do, consider that this happens all the time and we usually never hear about it.

Andy was involved in the launch of Kickstarter, which he also used to fund development of Kind of Bloop. I’d love to see Kickstarter offer insurance against this kind of claim to the artists who work through their site — maybe with a commitment to publish settlement stories, as Andy has. An “Insure Me!” backer category would be an awesome feature to let artists make art.

tags: , , , ,
  • Andre Friedmann

    “consider that this happens all the time and we usually never hear about it”

    Is there any data supporting that? Is this based on anything? Is this conjecture?

    Invoking fair use is such a common, reflexive defense, it sure *feels* like every infringer and his uncle invokes it. I won’t draw conclusions from such weak data based on anecdote and feelings. But that users with winnable defenses settle for cash before trial all the time because they can’t afford trial and we never hear about it for whatever reason? I fear you’re making up data.

  • Roger

    Why didn’t he just modify the music a bit and than also claim a “fair use” justification for using it? Who in their right mind would ever want to license something, much less get permission from some artist, when stuff can tweaked and then had for “free use”. And why do those ‘photographers’ get all whiny – after all, it’s only some bits from a single photography.

  • Bob

    Does it happen all of the time? Come on. I publish stuff all of the time and I never worry about fair use arguments because I don’t try to rest on other people’s work.

    There are plenty of people who are pushing fair use to a breaking point and they should be worried. I see some very popular blogs that are filled with articles written by other people. The blog is 80% or more borrowed material. Oh sure, they put it in blockquote tags and include a link, but they do little work themselves. These folks are plagiarists and copyright infringers.

    Blogs like this think that fair use is an easy way to avoid paying the artists, the photographers and the researchers. If you look at the timestamps, they whip off the pieces in five minutes or less. This just isn’t sustainable.

    The easiest way for this guy to avoid the problem is to whip out his own camera and take his own picture. Notice the irony here. He claims that the fair use debate has a “chilling effect”. No. It’s the opposite. It’s encouraging him to create. Heck it’s even forcing him to get off his duff and do something more than cut and paste someone’s hard work.

  • AG

    Did any of you previous commentators actually read Baio’s account?

    “Why didn’t he just modify the music a bit and than also claim a “fair use” justification for using it?”

    “The easiest was for this guy to avoid the problem is to whip out his own camera and take his own picture.”

    You both must have missed the part where the album in question, “Kind of Bloop,” is an 8 bit tribute album to Miles Davis. He DID just modify the music from the album; he recreated the original tunes entirely using, essentially, old-school video-game sounds. In order to do this properly, he carefully went about licensing all of the music for the project to avoid legal issues. He GOT PERMISSION to reproduce it.

    The problem here though, as we’ve noted, was the cover art, a reproduction of the original photography done in a digital/pixelated format in keeping with the early video game vibe of the new album. It’s a piece of art tailored specifically to fit the album and is entirely in keeping with the idea of the album as a tribute. From the comments it would seem that you’re all under the impression that he’s just printing off photocopies of the cover art and selling them for profit. Please make the effort to educate yourselves on all of the facts of a situation before making pronounced moral opinions.

    Finally, to answer the general question, “Does it happen all of the time?” The answer is very decidedly yes. If you are concerned about “conjecture,” “anecdotes,” or “feelings,” please feel free to peruse the case law in this matter. Here are a few sites where you can find an enormous number of fair use cases from over the past 20 years or so. Please note that many of them were cases where the reproduction art was NOT protected by fair use, for those of you worried about the point of copyright laws in the first place if fair use is a valid defense, i.e. “Who in their right mind would ever want to license something, much less get permission from some artist, when stuff can tweaked and then had for “free use”. [sic]“

    http://copyright.columbia.edu/copyright/fair-use/case-summaries/

    http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-c.html

    On the other hand, a quick google search on your own about the issue could have saved a lot of trouble, including the effort it took to type out your whiny, knee-jerk comments.