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You can read the seeds of the downfall in his own words:

"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..."

All well and good; or mostly well and good, as he didn't seek to license the cover shot. Therefore, the "entire project" wasn't "above board" and the statement above is disingenuous. So why didn't he try to license the cover shot? Apparently, he thought that wasn't necessary. Leading to this conclusion:

"If you're borrowing inspiration from any copyrighted material, even if it seems clear to you that your use is transformational, you're in danger. If your use is commercial and/or potentially objectionable, seek permission."

As a visual artist, I don't like getting ripped off. It's happened any number of times, on a small scale. So I can sympathize with Maisel, even if he comes across as a hardass. I can also sympathize with Baio, but not as much, because he explains pretty clearly how he did it to himself.

I should also note that the US Congress ratified the Berne Copyright Convention, which includes protection of the "moral right of the artist." This includes explicit protection against someone else modifying one's work.

One person's "transformation" is another's "mutilation."

'Therefore, the "entire project" wasn't "above board"'

Pet peeve of mine: I hate it when people cut quotes down in a way that changes the sense of the original, then start arguing based on the faked up quote they just provided. The full quote, why you even provided it yourself, was:

"I went out of my way to make sure the entire project was above board"

The point is that he was trying, and trying very hard. His failure to license the cover was the entire point of the article. He is saying that the reason for it was simple, honest oversight, and we can believe that his motives were pure by virtue of how much money he put down for the other portions of the album. How can you accuse him of being disingenuous when its his own article you're citing back at him as the evidence? It's pretty ineffective disingenuousness!

I don't understand this comment. You're replying to someone who points out an acknowledged flaw in Baio's logic: he "went out of his way" for the music but ignored the rights on the cover art. Even Baio wouldn't disagree with that; had Baio known, he obviously would have tried to license the art and, failing that, come up with some other cover.

I don't see how the quote here has been misappropriated at all.

Further, the subtext of your comment seems false. "The point is that he was trying, and trying very hard". Well, no. That's not the point. The legal system often does give credit for trying, in the sense that a good faith effort may ward off treble damages. But compliance with the law is often not a best-effort thing, and you do not in the real world always get points for effort.

The problem jerf is referring to, IMO, is this part:

Therefore, the "entire project" wasn't "above board" and the statement above is disingenuous.

He's explicitly (and literally) stating that Baio was not being sincere. When this clearly isn't the case. I think we both understand the difference between disingenuous and an oversight.

And in particular he wasn't being disingenous with the statement he made. As jerf points out the statement is used as the pretext for the mistake he made. How in the world could that be disingenuous -- unless you think he didn't actually try and is lying about the whole thing?

He obviously didn't go out of his way to make sure the entire project was above board as he didn't check the art, therefore the statement is disingenuous.

I think jerf's got the wrong end of the stick of the idiom:

went out of my way

It doesn't mean try, it means done more than necessary, when he hadn't done the necessary. He hadn't even checked whether they'd be any issue with the artwork.

If he'd said I thought I went out of my way it'd give the sentence the meaning that jerf and you seem to be giving it.

But he didn't and so gallerytungsten is right, although being a little pedantic as the author did later explain he'd just assumed the use was transformational enough.

When I was reading the article I had to re-read the first few paragraphs as it doesn't actually make sense (to say he'd checked the entire project was above board when it clearly wasn't or he wouldn't be writing the article).

I hope that you never make a mistake.

But if you do, I hope the world is kinder to you than you are to baio.

As far as I'm concerned, it's irresponsible to defame baio based on nothings but a particularly uncharitable reading of a blog post. I don't understand why you think that's enough to claim he is purposefully dishonest.

As kenjackson said, the word that set me off was disingenuous. It is a hostile interpretation of the original article that the author first claimed to be blameless and above board, then turned around immediately and explained how was not blameless. Instead, with a reading where you extend the author a bit more credit, it is a story of an acknowledged oversight, where the goal of being above board was not met, and the evidence of that goal was the fact that he licensed everything else he thought of to license. (Goals aren't results.) I'm not talking about legalities at all.

You twisted his words to imply he stated that the work he did was in fact "above board." He never said that, in fact, the entire point of this article was about the fact that his attempt to "keep it above board" (what he actually said) failed.

I think I can understand Baio's logic:

Photographs & Music are two very different mediums.

A music composition is made to be played. And part of that is that multiple people will probably be playing it. The fact that the instrument choice used on the album was unique did not make it any different from any other cover album. And thus permission was sought.

A photograph on the other hand is made to be viewed & that's not how it was being used in this case. It was being used as the inspiration for a new derivative work of art which played off the concept of the music.

I can totally see why Baio was not worried about licensing the original. I can also totally see how this was a mistake in practice.

There's no "mutilation" going on here at all. The remix has no effect on the original work.

This concept of the "moral right of the artist" is the kind of incredibly vague legalese that's at the heart of the problem here, really. Nobody's arguing that artists shouldn't get compensated for their work (and it's disingenuous for you to assume that). The real problem is that the laws pertaining to this are so vague that they basically enable the person with the most expensive lawyers to bully anybody and win.

If you're in favor of an intellectual-property plutocracy, then congratulations, because that seems to be what we've got.

The secondary problem is both legal and cultural: remixing a work is not yet perceived by many people to be "work". But it is, without question. Doesn't the remix artist deserve to be compensated for their work?

Someday you'll find yourself in a similar situation, if not through malice then by accident, and you'll desperately wish that rules were clearer.

re: "This concept of the "moral right of the artist" is the kind of incredibly vague legalese..."

No, it's not "incredibly vague." Rather, it's pretty clear:

What constitutes infringement of moral rights?

VARA grants two rights to authors of visual works: the right of attribution, and the right of integrity. The right of attribution allows an author to prevent misattribution of a work, and to require that the authorship of the work not be disclosed (i.e. remain anonymous). The right of integrity bars intentional distortion, mutilation, or other modification of a work if that distortion is likely to harm the author's reputation, and prevents the destruction of any work of recognized stature. Therefore, if I paint moustaches on a painting by a famous painter such as Roy Lichtenstein or Frank Stella, I will have violated the artist's moral rights under VARA. If I paint moustaches on an Andy Warhol painting on the other hand, I will not have violated Warhol's VARA rights, because VARA protection ends with the death of the author.

Source: http://cyber.law.harvard.edu/property/library/moralprimer.ht...

You may say that "pixelizing" the photo caused no harm; the photographer obviously had a different opinion; to wit, that his "right of integrity" was harmed. While reasonable people can have varying opinions on the level of harm, if any, this principle, as described above, is not vague.

It also seems clear that VARA doesn't apply to the photograph in question. From your link:

"Under VARA, moral rights automatically vest in the author of a "work of visual art." For the purposes of VARA, visual art includes paintings, drawings, prints, sculptures, and photographs, existing in a single copy or a limited edition of 200 signed and numbered copies or fewer. In order to be protected, a photograph must have been taken for exhibition purposes only."

In addition, the Fair Use doctrine in the US makes things not as clear-cut as you make them out to be. Even if the creator doesn't like it, it's sometimes the case that she doesn't get to prevent her work from appearing in certain kinds of criticism, even if it involves distortion or modification of the work.

You're under the mistaken impression that the original work was used to create the new album cover. That's not the case; the Kind of Bloop cover was a completely new work that happened to look like the original. If it's possible for anyone to file a lawsuit because a given work looks similar to another work, then jeebus help us all.

Apparently you're no longer confused regarding the "moral right of the artist" being vague.

Regarding your claim that the original work wasn't used, I think this quote from the article is pretty clear:

"Before the project launched, I knew exactly what I wanted for the cover — a pixel art recreation of the original album cover..."

This wasn't a case of happenstance, as you suggest.

So why didn't he try to license the cover shot?

Because he believed (and still believes) that it was fair use: "My lawyers and I firmly believe that the pixel art is 'fair use' and Maisel and his counsel firmly disagree."

This seems to me like a lack of appreciation for a particular field.

He was making a derivative (but original in its own way) work based on Miles Davis' work. So he sought permission from the right entities to do so.

He was also making a derivative (but original in its own way) work based on Meisel's photograph. So he didn't seek permission from the right entities to do so.

This reeks of tunnel-vision. As a musician Baio had the appreciation and understanding of the field to know that he's producing a derivative work. As a non-photographer he didn't seem to think the same principle applied to another field of art.

Even though I also believe that it is fair use, I would still defer to the artist's judgment on this, because it is their right to decide where the line gets drawn, not mine. That's why it's smart to ask for permission for these kinds of things.

Two sides disagree - the tiebreaker should be the fact that one side created the original work on which the clearly recognizably derived work was based. That side gets more weight.

> it is their right to decide where the line gets drawn

No, the whole point of fair use is that certain uses are protected EVEN IF the artist doesn't like it.

Huh? Tiebreaker goes to the creator? Then you would have no fair use, parody or any of the sorts.

One person's "transformation" is another's "mutilation."

Right… it's subjective, hence his warning that you should seek permission even if you think it's obvious.

Regardless of who's side you fall on in this disagreement, I think everyone can agree that the subjective nature of it and the ambiguity of the law has a chilling effect. There is a risk to use any copyrighted work in any capacity. Defending yourself can bankrupt most artists.

It just doesn't make sense why he thought it was important to license the music to transform to 8-bits, but not license the art to transform to 8 bits.

The examples he gave of what he thought was equivalent were not close to equivalent of what he did (his friend did). The Pulitzer example was obviously its own piece of art inspired by the original. His was a flat copy that was transformed to 8 bits.

Because he didn't license the recording, he licensed the score. That's well-established; there are multiple rights in a piece of recorded music (the score, the lyrics and the mechanical rights to name three).

So you can have multiple rights here. Clearing the rights to the score is easy - if the composer is ASCAP/BMI/PRS/GEMA (etc) then there's a standard license they've agreed to, so you pay your royalties and you're away. Mechanicals and lyrics can be a bit more complex when you start creating transformative works (ie sampling, rewriting words, etc.)

It seems to me you could have a huge explosion of creative work if the type of compulsory license that exists for musical scores could be applied to, well, pretty much everything under copyright.

The losers, of course, would be copyright lawyers and the artistes that want complete control over their work even after it's published.

That is good info, but it still doesn't make sense that he didn't feel the need to license the photo.

Why did he think one type of art has more rights than another type of art?

It totally makes sense – he thought he was creating a transformative work. The score is identical in both cases, therefore you need a license. The analogy would be if you had a score that was inspired by, but transformed from, the original.

(As I understand it, and I could be wrong about this: the cover isn't the original photo run through a transform; it's a pixel art recreation. A better analogy would be the companies who replay samples to evade mechanical rights - http://www.google.co.uk/search?sourceid=chrome&ie=UTF-8&...).

Technically speaking, the score isn't identical, judging by the bits I heard. But the melody lines certainly were, and that's all you need to trigger the need to license the music.

Yep. In fact, I'm fairly sure harmonies aren't protectable, just the top line, hence all the contrafacts (same chords, so same solos, but different themes) in jazz. There are hundreds of tunes on the Coltrane or Rhythm changes.

Rhythms aren't either, or James Brown, the Winstons, or Sly and Robbie and their billion reggae ridfims would be the richest musicians in the world...

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