To Screw Or Be Screwed? That Is The Question.

After reading Andy Baio's post about his recent ordeal / lawsiut with photographer Jay Maisel I found myself, as an artist and a photographer, landing on both sides of the fence. If you can visualize that, you'll realize it makes for a very *cough* uncomfortable position. The right to take someone else's photo and make transformative art from it has been an on going hot topic as we've seen in Noam Galai’s Stolen Scream or Glen E. Friedman's copyright infringement case against Thierry Guetta. Like those stories, this article is bound to stir up a hornet's nest of opinions. To avoid suffering from a barrage of stings I've decided to withhold my take on thing and instead ask you the 5 W's:

Who do we allow to use our photos?
What should we consider "fair use"?
When is it time to bust out the lawyers and sue?
Where is the line between transformative art and straight up ripping off?
Why is there so much confusion on this subject?

I think you will find that if you can answer any one of these questions you have answered them all but it's a task far larger than it seems. I really look forward to reading everyone's take on this story , so be sure to leave your comments and don't forget to subscribe to receive our weekly newsletter.

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16 Comments

This is a tough one...in my humble opinion, there should be some kind of compensation to the photographer across the board based upon the type of use including derivative works.   Maybe another question is what form/amount of compensation is fair? 

I had one of these wake up calls recently. A fellow art director at the advertising agency where I work was nearly fired when upper management discovered he was posting work he created for the agency on his portfolio site (something every AD, copywriters, designer, etc  I know these days does). He hadn't asked for permission, nor had he given credit to the agency, which the company viewed as "stealing" the work and claiming it as his own.

Suing over an 8bit rendition of your work for 150k is kinda ridiculous.  It makes Jay Maisel seem like a soulless money whoring douche, more than anything.

The lawsuit was clearly meant not just to recover any lost monies from sales of reproductions of the classic photo, but to send a message.  I guess you got it loud and clear.  You do not have the right to reproduce someone else's work at all but the most unidentifiable.  If you're attempting pixel art repros, then that would be the last two "versions" on Andy's website.  I don't know why this is so difficult for artists to understand.  Yes, there's clearly a tradition of borrowing and using ideas and techniques and riffs of all kinds in every artform.  This is qualitatively different than saying, well I'll just make an 8-bit pixel art repro and that should be enough. 

Well, I'll just make a 192kb/s mp3 of Kind of Blue and sell it as my own.  That should be enough.

Ruben's picture

i think, at least for me, the line should be about 'benefits'
If a big rich multinational company uses a photograph from a amateur
photographer, or even professional, to put on their clothes/advertising/whatever,
their goal is to make money of it, lots. thats what companies are for. in which case
the company benefits more from the photograph as the photographer himself.
In this case the answer to the questions is, is its a big company: NO, we should not
give them our images, its not fair use, when they start selling we should start sueing. 
sadly the last two question cant be answered by this logic.

but the artist part is different, for me. for example, if say shepard fairey or banksy of some other street art legend, (exeption of thierry guetta aka MR BrainWash: people watch the movie Exit thrue the giftshop!) used my picture to send out an political message i would be very thrilled, but again. 
there is a line, i dont know how his company works, but if fairey sells t shirt and other merchandise with this image on it he kind of moves to the commercial company side of the story. which makes this much more complicated than i thought when i started writing this. 

Maybe it bassicly comes down to what noam galai's point of view is, for the iranian freedomfighters side its no problem. but people making money from his image is wrong in every way.

oh something i wanted to add, i am in Ha Noi, Viet Nam right now writing it, and if i would 
walk outside for 15 minutes i will see at least 10 paint shops that will copy anything for you. 
in their display they have a lot of famous pictures as examples, afghan girl and such. 
but the most copied by far is the Shepard Fairey's interpretation of the famous Obama picture. 
and in ironic return, i don't think these paintshops asked permission to resell his artwork.

I think this should be treated like music. If you use the original version, then you need the rights holder's permission and negotiate a fee. If you make a transformative work, then you're free to do so as long as you pay a royalty as a percentage of revenue for every item sold which uses the work. This still hinges on our ability to accurately determine where the line between original and transformative goes of course.

best answer so far. its just like sampling a piece of music. All involved in the production of the original piece (copy right holders) would receive a percentage of the sales. Which raises the question, should a type of publishing be developed for art/images, if one does not exist already?

I agree with Bradley Taylor above. Additionally, if you can identify what the reproduction is, your first thought should be about legality, permission and license. If you cannot identify what the reproduction is, then what is the point? A slippery slope. Simple question: how would you feel if that was YOUR work "being interpreted."  A really harsh outcome for Andy Baio, that I wish wasn't so. But rather than finger wagging people (as stated in the blog post) into not harassing Jay Maisel, I would instead look at Andy Baio and ask "Duh, what did you think would happen? At your core didn't it even seem questionable to you?" With all of that said, I feel his pain. If there were a fund entitled "I f-cked up real bad and need some donations to help pay for my infringement penalties" I would donate a couple bucks for sure.

I honestly think the thing that would bother me and make me want to take action is simply that I wasn't asked first. Especially if I'm on the level of Maisel, I have a staff that I pay to handle that kind of thing, they can just shoot me an email saying an artist wants to do this little project, and I'd be comfortable working something out as long as I was aware of what was going on. Give me the right to say no, and I'm way more likely to say yes.

@gmarley, I couldn't agree more. I tried to convey that in my first sentence about permission and license. The only two images from the blog panel that are not copyright infringement would be the bottom two. I also agree with dcreed (below) about how Baio mentioned properly licensing music and how did it not occur to him to have the same consideration for the artwork—copyright exists for a reason. Justice was served, but an expensive lesson. I guess where I am focusing is in this world of information, how did Baio not know he was committing copyright infringement in the first place? He seems very self-righteous in his tone, and therefore I think he is clueless. "Give me the right to say no, and I'm way more likely to say yes." Well said gmarley! But if I were Maisel and I was presented with Baio's "8-bit artwork" I would have said NO.

When the Shepard Fairey controversy was at it's peak, I was decidedly on the AP's side, and maybe that was from the biased position of me personally finding Fairey's work to be incredibly boring and obvious. (Oh really, the oil industry is corrupt? Thanks Shepard, that incredibly complicated issue has now been made perfectly clear and solvable. PHEW!) Aside from that, I still thought what he did wasn't above board and showed a total disrespect for anyone trying to make visual content. Friends of mine who were fans of his told me to "relax" and that's "just what he does." What a cool defense! I'm totally going to try that the next time I get caught shop lifting.

What's ironic is that when you read Baio's post he makes a point of mentioning he properly licensed the music. He apparently doesn't consider visual art worthy of the same respect and free to rip off as he pleases. Works like this are clearly derivative, not transformative, as copying an image by simply changing the medium doesn't transform anything. I say sue their asses til they get the point. Copyright exists for a reason.

Couldn't say better than @gmarley:disqus and, just making a add to someone above though was "ridiculous" sue someone for that amount, well ... sometimes the value is much, WAY MUCH MORE asked in court to reach the final value agreed. And EVERYTHING run there "based" in past cases ... nothing new under the sun ... even photography ideas for covers ... sad. Artist? donthinkso. 

You're asking 150k from a small fellow artist who made an 8 bit tribute album... anyone who thinks he's rolling in money has really deluded themselves.

But I do like the idea that we're all entitled to hundreds of thousands of dollars when someone changes our art a little bit.

Matt Green's picture

After viewing this image and reading the post by Baio, I would have to side with Maisel. The artist (Baio) took the time to license all the music. The photography should be treated the same way. As the owner of the original image, Maisel has the right to set a price. This is an example of the perception people have about photography. I don't understand why anyone would think this is different from stealing music or any other type of art. I would assume someone like Shep Fairey would know better, but that is another example. I hate to see people getting sued, but something has to happen to educate the public and protect photographers. 

Mike M - to follow up on what Carlos Bruno said - in court, the amount asked for is usually really high, so that a settlement is reached.. he asked for 150k.. and they settled at 30k.. thats 20% !!! 

And if you read up on Jay, and follow his work, you'll realize the man is eccentric (no doubt!) but fair and has his own way of doing things.. He's also extremely encouraging to other people to work things out for themselves. So if he's decided to pursue this course of action, there must be a good reason behind it. I'd be inclined to give him the benefit of doubt, given that he's been doing this for 45-50 years!!