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Who’s the Dick?

Lee Phillips — June 23, 2011

Someone named Andy Baio raised over $8000 on Kickstarter to produce a “chiptune” re-performance of Miles Davis’ legendary album Kind of Blue.
Chiptune is some kind of musical genre where you make everything sound like cheesy videogame music. I don’t get it either, but if people want to create music where part of the aesthetic is that it’s supposed to sound bad, I believe they have every right to.

Baio and friends called the album Kind of Bloop (get it?), and I listened to some of the brief samples on offer at their website. It’s pretty irritating to listen to. This is nothing like the reinterpretation in, for example, Switched on Bach, which was all the rage in my youth. Walter Carlos was trying to make music that sounded good by developing and using the latest electronic music technology, and he succeeded. I’m not sure what Baio and his group were trying to do, but listening to their stuff just makes me want to turn it off and find my CD of the real thing.

Unfortunately, the music wasn’t Andy Baio’s only mistake. He used the famous photograph that graced the cover of the original album to decorate and promote the sale of his own version. He had a friend process the picture a bit, altering the colors and producing an ugly, low-resolution rendering, which parallels what he did to the music. He claims he believes this to be a form of “fair use”, but this is not an excerpt or small reproduction used for parodic or critical purposes. It was an appropriation for commercial purposes, used without permission to sell a product. And it’s clearly designed to be easily recognized as a version of the original; just squint a little and the two look nearly the same. It’s a ripoff.

In what must have been a shock to no one except Baio, the photographer sued to recover damages for copyright violation. Baio settled, paying out $32,500 (and of course, agreeing to stop misusing the artwork). The photographer happens to be the great Jay Maisel. I feel on fairly safe ground saying that any one of his photographs is worth more than all the “chiptune” ever produced.

I suppose the next part is predictable. Prominent representatives of the internet generation have come forward to excoriate the victimized artist and extend sympathy to the guy who lifted his photograph. For example, John Gruber calls Maisel a “dick” for asserting his rights over his creative property rather than lying down and letting people rip off his photographs for commercial purposes. In a particularly nasty turn, Gruber, in a subsequent post entitled “Like I Said, What a Dick,” digs out an article from September 2008 about Maisel’s house. Here is the entire text of Gruber’s post:

Jay Maisel, the photographer who squeezed a $32,500 settlement out of universally heralded good-guy Andy Baio, owns a 72-room mansion in lower Manhattan worth “tens of millions of dollars”.

You have to read the article that Gruber is referring to to see the nasty thing that he did there. I guess he’s hoping that people won’t read it and just absorb his message, which seems to be that Maisel is super-rich and therefore has no rights, or something. Also note that a Google search for “Jay Maisel” does not return this article in at least the first five pages (as of today). So I’m getting an image of Gruber huddled over his computer, scanning page after page of results praising the work of this famous artist until he lights upon an old article that he can twist to his purposes, at least if nobody goes and reads it.

The article happens to be pretty interesting, especially if you’re from New York, and, like me, grew up in lower Manhattan. It turns out that Maisel bought the house 44 years ago for $102,000, when it was an abandoned dump full of garbage. He’s still renovating it, and he and his family are helping to maintain the marginal neighborhood in which it sits, cleaning the sidewalks and scrubbing graffiti with their own hands.
The house is estimated to be worth “tens of millions,” now that it and the neighborhood are so much improved, thanks to people like the Maisels. They’ve shown no interest in selling it; it’s their home.

If Maisel is a “dick,” then John Gruber is a scumbag.

And here’s the final nail in the coffin of Baio’s argument, as far as I’m concerned. He licensed the music that he transformed into 8-bit aural assaults. He was fully aware that he needed to pay license fees in order to distribute his versions, even though they were radically transformed and reinterpreted. And yet he claims that he thinks he can do exactly the same thing with a photograph, and that somehow it’s fair use. Worse, he never even extended the minimal courtesy of asking for permission, or reaching out to Maisel to find out how he might feel about this use of his work. As it turned out, he felt violated.

I wonder how Baio would feel if I downloaded Kind of Bloop and offered it here, free for the taking? Of course, I would put it through a little bit of filtering, to “transform” it first. Would that be fair?

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