Looking at my Twitter feed, I came upon an interesting headline, Millionaire Extorts $$$ from Artist, Street Artists Strike Back. Since I follow a lot of street art, I decided to look into the article further to see what this was all about. After all, it is hard to see how a millionaire could blackmail a street artist.
The basic story: Andy Baio, a writer and tech entrepreneur in Portland, Oregon, produced a chiptune tribute to Miles Davis. For those who do not know what a chiptune is, according to Wikipedia, it is also known as chip music, and it is synthesized electronic music often produced with the sound chips of old computers and video game consoles. Andy wanted to remake one of Davis’ seminal works and one of the best selling jazz albums ever, Kind of Blue. Andy is no dummy and he went out of his way to pay fees to the original musicians.
Andy explains, “To create this album, I hope to raise $2,000 to pay royalties, pay the artists, and print CDs. Legally releasing cover songs requires paying mechanical licenses to the song publishers through the Harry Fox Agency, totaling about $420 for every 250 downloads and a $75 processing fee. I’ll be using the remainder to print a very limited run of CDs for Kickstarter backers, and split the rest evenly among the five musicians for their painstaking work. (This is a labor of love for me, so I won’t be keeping a dime.)” And, he secured permission to use the score — but he neglected to contact photographer, Jay Maisel, to get permission to reuse the photo on the album cover originally produced for Miles Davis’ record. Maisel found out about it and was not pleased. He contacted his lawyers and let them handle the copyright infringement.
Jay Maisel, the photographer whose work was used without permission, is a well-known photographer. His most famous work includes images of Miles Davis, Marilyn Monroe, and a host of well-known luminaries. His bold use of color and his graphic eye made his photography worthy of many awards in the design and photography worlds. He is definitely a heavyweight in the world of professional photographers.
Maisel’s lawyers wrote Andy a letter to cease and desist which he did, but after a year of negotiation, he still ended up paying Maisel $37,500. It is worth reading Andy’s version of this dispute. It is quite lucid and fair-minded and is a really good explanation of “Fair Use” — what constitutes an infringement of copyright and what is allowable under the law. Baio, very successful in his own right, writes clearly on the battle between artists and copyright holders and makes this relevant to digital reinterpretations of copyrighted works. Naturally he felt angered that he had to absorb a large financial hit.
Cut now to a blog posting on Hyperallergic, a blog that in their own words “is a forum for serious, playful, and radical thinking about art in the world today.” Here is where the rant starts. The blog heard wind of Andy’s story and decided to take action. Working with several street artists they decided that the way to “punish” Jay Maisel for collecting a payment from Andy Baio was to take the original digitized image of Miles Davis and make a street poster adding the line, “All art is theft” and plaster these on Jay’s building at the corner of Spring and Bowery in Manhattan. The blog’s initial headline stated that Maisel was ripping off a poor street artist — which is laughable since Baio is a well-to-do writer and tech entrepreneur. The blog basically claims that these posters were a “legitimate artistic and political expression.”
A legitimate artistic and political expression? About what?
In the late ’60s and early ’70s photographers were fighting to protect their work from being used without permission. Through the ASMP and the dedication of many important artists including Jay Maisel, photographers were able to secure rights that limited the use of their images without compensation. It is from these early battles that photographers were able to secure copyrights for their work, and that designers were taught to ask before using, and negotiate payment before using it. These early battles were hard fought and there was a steep education curve as most people were accustomed to use a photograph as many times as they wanted without paying the owners one red cent. This was also an era where most photography was commissioned and you were either dealing directly with the artist or the artist’s representative to negotiate pricing so there was no confusion regarding rights. And back then, with the internet in its infancy, it was impossible to steal an image by merely dragging it to your desktop.
Enter the world of computers and stock photography, and the age where lifting images is as simple as drag and drop. Enter the digital age where no image is sacred — rather it is a base from which experimentation starts…. Well, that is all well and good if the people using an original photograph have actually secured permission, but increasingly there is a trend where people think that it is not necessary to ask permission if you are going to significantly alter the image.
Reading the comments to Hyperallergic’s post was even more interesting. Some of comments were clearly against Jay Maisel and took him to task for protecting his work. Many felt that Maisel was being inflexible. After all Baio did cease and desist and tried to work things out. Many of the comments saw a difference between stealing music — which in their eyes is wrong versus stealing imagery —which is allowable and is classified as art.
“Stealing music and fair use are completely separate issues. One is genuine theft, the other is creating something new and adding to culture. Every generation has fed off the ones before.”
Thankfully many more of the posters understood Maisel’s position and supported his right to protect his copyright:
“Jay Maisel busted his ass for 50+ years in the fine art and commercial art businesses, is a pioneer for artist rights, took massive risks, and became a success. I hope Mr. Maisel WINS his case…Fair use?! BULLSHIT…That is a VERY iconic image that is known by even those who know nothing of jazz (plus all the phonies who SAY they love jazz yet only have a CD of Kind Of Blue)…ALL ART IS NOT THEFT, but theft is the FOUNDATION of the trash put out by talentless punks who need to sample and steal to produce anything…There’s no technique, no practice, no SACRIFICE. We are SURROUNDED by mediocrity in this “user-generated” digital-piracy age…”
And yet another poster comments:
“You guys are idiots — this wasn’t even a symbolic victory. Just because you hipsters grew up in a steal music, free-for-all generation, doesn’t mean intellectual property shouldn’t be respected or that there isn’t value placed on creative work. Commercial artists have fought long and hard to be paid for their work, just because no talent idiots like you think it should be free doesn’t make it right.
There is also a right way to go about using other peoples work, like contacting them beforehand and asking for permission, and if they don’t grant permission you don’t use it … PERIOD. This is a process that generations of designers and art directors have followed. I have an idea … why don’t you create your own artwork? Shoot your own photographs? This generation has become fat and lazy, feeding off of the creatives who came before them and then go off on righteous indignation when people want to be compensated for their work.”
I suspect — although I have no proof — that there are two different generations having these discussions. Younger generation was never schooled in copyright or fair use and was born with a mouse in their hands. With so many ways to share photographs and find images — from stock houses to Flickr et al., a visual vocabulary that is often multilayered and put through Photoshop filters of some sort or another, along with new mobile applications that allow images to be transferred and shared with a click, it is not hard to understand why this generation sees no problem in sharing images, reusing them and claiming authorship if the original image is sufficiently altered.
The older generation having lived through the battles to secure rights, is probably not as adept at using the technology at hand, and associates appropriation with piracy.
It is clear that there are passionate spokespeople on both sides. There is enough legal precedent to decide issues in court, but there is still a fuzzy line on what is influence, what is derivative, what is appropriation, and what is downright piracy. Even this blog post uses images to illustrate points without contacting the original source for permission. Witness the google search page you get if you search Shepard Fairey. This is only one of pages and pages of images all in thousands of places, all probably used without the permission of Fairey let alone the original AP photographer.
The debate on what is original and what is borrowed will always rage on. But the digital world has created a new set of what is allowable and what is not. It will be interesting to see how a new perspective effects other parts of the art world and redefines what is original.
