The Fair Use Quandary

In February 2010, attorneys representing Maisel contacted Baio. The demand letter Baio received alleged that he was infringing on Maisel’s copyrights by using the image on the cover for Kind of Bloop, as well as in a video Baio made for the album’s release. The letter also included fairly standard language indicating that Maisel was seeking "either statutory damages up to $150,000 for each infringement at the jury’s discretion and reasonable attorney’s fees for actual damages and all profits attributed to the unlicensed use of [Maisel’s] photograph…."

After months of "legal wrangling," Baio settled, paying Maisel $32,500 for the unauthorized use of Maisel’s photograph and agreeing not to use the image (or unauthorized artwork based upon the image) again. "I’m not exactly thrilled with this outcome, but I’m relieved it’s over," says Baio. "Despite my firm belief that I was legally in the right, I settled out of court to cut my losses. This ordeal was very nerve-wracking for me and my family…."

However, Baio continues to assert that he wasn’t liable for copyright infringement. "My lawyers and I firmly believe that the pixel art [version of Maisel’s photograph] is ‘fair use,’ and Maisel and his counsel firmly disagree," says Baio. "I settled for one reason: This was the least expensive option available."

The Settlement And Backlash

For a dispute where no complaint was ever filed in court, no outrageous allegations made in court and no dramatic revelations discovered in the course of the case, the settlement has garnered more than its fair share of attention. Few have honored Baio’s request for civility appearing at the beginning of his blog posting: "I understand you may have strong feelings about this issue, but please don’t harass [Maisel] publicly or privately. Reasonable discussion about the case is fine; personal attacks, name-calling and abuse are not. We’re all humans here. Be cool."

Baio’s request went unheeded by those who believe that copyright shouldn’t be an impediment to the "remix culture" that seeks to build on existing works. The attacks have ranged from the somewhat logical to outright offensive, with some even wrongly indicating that Maisel sued Baio (according to Baio, no suit was ever filed, and the matter was settled without a complaint being filed in court).

One attack went as far as referring to Maisel as a "copyright troll," which, as far as I can tell, is the first time the term has been used to refer to a person who creates and licenses copyrightable material, and seeks to enforce his or her copyrights. Although relatively new to the vernacular, the term has more generally been used to describe an entity that doesn’t produce or license copyrightable material, and which aggressively or opportunis-tically pursues litigation for copyright infringement in an effort to extort settlements from alleged infringers. The term is believed to have derived from the pejorative term "patent troll," which refers to entities that make no products, but hold one or more patents, and enforce the patents against companies that do make products.

The term "copyright troll" is entirely inappropriate when applied to photographers who seek to protect their livelihood through the enforcement of their own copyrights. It’s no more unreasonable for a photographer to seek compensation when one of his or her images is used for commercial purposes without authorization than it is for any other business owner to tak
e steps to protect the investment made in that business. Likewise, the measure of financial success achieved isn’t relevant to the question of whether a photographer is justified in seeking fair compensation for the use of his or her work. Indeed, one wonders what action would be taken if the songs on the album Kind of Bloop were distributed without authorization over the Internet, and whether enforcement efforts would face the same criticism as bloggers have meted out to Maisel.

The difficulty drawing the line between fair use and infringement, coupled with the perception that the threat of legal action is stifling creativity, has undoubtedly played a role in the criticism. "Anyone can file a lawsuit, and the costs of defending yourself against a claim are high, regardless of how strong your case is," lamented Baio in his blog. "Combined with vague standards, the result is a chilling effect for every independent artist hoping to build upon or reference copyrighted works." The Gizmodo article went as far as suggesting that the concept of fair use is rendered meaningless by the tremendous cost associated with the average copyright infringement suit, even linking to figures from an American Intellectual Property Law Association’s (AIPLA) survey of the costs associated with different types of intellectual-property law-related lawsuits. If, as the article contends, the average copyright case costs $310,000 to litigate when there’s less than $1 million at risk, then the implication is that the concept of fair use has been rendered meaningless.

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