The Fair Use Quandary

Much has been written recently regarding Jay Maisel’s enforcement of his copyrights, and especially of the demand that he made against Portland, Oregon-based Andy Baio, a self-described writer and tech entrepreneur, arising from Baio’s unauthorized use of the cover art from one of Miles Davis’ records. The vast majority of commentary has been overtly biased, denouncing and even personally attacking Maisel for no reason other than because he had the audacity to enforce his copyrights. Nonetheless, the relevant facts and some of the commentary regarding the dispute merit consideration and present some valuable lessons for anyone who might become involved in a copyright dispute.

Andy Baio posted this series of increasingly pixelated images on his blog with the question, "Where would you draw the line?"

The (Relevant) Facts

Baio described the background of his dispute with Maisel on his blog,, in an entry entitled "Kind of Screwed." He produced an album named Kind of Bloop, an 8-bit chiptune tribute to Miles Davis’ album Kind of Blue. (Chiptune music is synthesized electronic music, sometimes produced using sound chips from older computers or video game systems; chiptunes have appeared in mainstream pop music, including Ke$ha’s 2009 hit, TiK ToK.) According to Baio, "I went out of my way to make sure the entire project was above board, licensing all the cover songs from Miles Davis’ 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," explains Baio. "Before the pro-ject launched, I knew exactly what I wanted for the cover—a pixel art re-creation of the original album cover, the only thing that made sense for an 8-bit tribute to Kind of Blue."

The original album cover featured a now iconic Maisel photograph of Miles Davis playing the trumpet. Using dramatic lighting to emphasize the few visible elements and allow the background to go black, the image features a tight shot of Davis playing the trumpet, his eyes closed, with a determined and almost happy look on his face. Davis’ hands are visible on the trumpet, with the instrument beyond his hands being cropped out of the image as it appeared on the cover. After several failed efforts to pixelate the original cover image, Baio asked a friend to re-create the cover image.

In an article regarding the dispute entitled "Kind of A Dick Move" and published on Gizmodo, Mat Honan compared the transformation of the cover art to the music itself: "…the album art transforms Maisel’s iconic image in much the same way that the music itself transformed Davis’ tunes."

Although Baio went through the exercise of licensing the songs from the record label holding the rights to Davis’ music on Kind of Blue, he made no effort to license the cover art. "I never attempted to contact Maisel for a license because I thought, and still think, that I didn’t need one," Baio explained. "I believe that both the music and artwork are sufficiently transformative that they’d be covered by [the] fair use doctrine." Baio admits, however, that he didn’t consult with an attorney when putting together the project or licensing the music. "Like most people, I don’t have an attorney handy to ask about my personal projects."

When asked whether, if he had it to do over again, he would attempt to license the image from Maisel, Baio explained that it wouldn’t have made a difference. "Maisel stated explicitly he never would have licensed the image in the first place. So, no, I wouldn’t have tried, and a license wouldn’t have been granted if I did." However, Baio did admit that if he had it to do over again, he would have used a completely different cover.

Baio used Kickstarter to raise funding for the project, which achieved its funding goal in August 2009. The album was released August 17, 2009, with 300 CDs pressed (the album was and is also available via digital download).

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