Kasumi presents: Geniocity, the Magazine of Innovation & Creativity

Artists don’t protect their “purity” through copyright overclaiming.

Readers of this blog know I feel pretty strongly about this, particularly in connection with genres often disparagingly referred to as “appropriation art.”

Well, my friend Andrew Dubber pointed me to this very cool “8 bit, chiptune” reworking of an all-time favorite of mine (and just about everybody’s my age) — Miles Davis’ Kind of Blue — dubbed Kind of Bloop.

Andy Baio, Kind of Bloop‘s creator, unfortunately ran into the type of problem with which I am all too familiar. As he writes,

Before the project launched, I knew exactly what I wanted for the cover — a pixel art recreation of the original album cover, the only thing that made sense for an 8-bit tribute to Kind of Blue. I tried to draw it myself, but if you’ve ever attempted pixel art, you know how demanding it is. After several failed attempts, I asked a talented friend to do it.

You can see the results below, with the original album cover for comparison.

Unfortunately, Jay Maisel, the photographer who shot the original photo of Miles Davis used for the cover of Kind of Blue. threatened a lawsuit for copyright infringement seeking hundreds of thousands of dollars in damages. Baio settled, agreeing to pay Maisel $32,500 and not to use the artwork again. And he writes, in words I firmly endorse:

But this is important: the fact that I settled is not an admission of guilt. My lawyers and I firmly believe that the pixel art is “fair use” and Maisel and his counsel firmly disagree. I settled for one reason: this was the least expensive option available.

At the heart of this settlement is a debate that’s been going on for decades, playing out between artists and copyright holders in and out of the courts. In particular, I think this settlement raises some interesting issues about the state of copyright for anyone involved in digital reinterpretations of copyrighted works.

Baio includes in the account of his ordeal several works of art that reinterpret earlier copyrighted works as well as a list of links to other such works. They are all worth checking out and almost all add to those referred to in the posts in that “appropriation art” link above.

One thing both Baio and I find particularly troubling is a statement Maisel’s lawyer made in a letter to Baio in explaining that Maisel never even would have licensed the use of the image:

“He is a purist when it comes to his photography,” his lawyer wrote. “With this in mind, I am certain you can understand that he felt violated to find his image of Miles Davis, one of his most well-known and highly-regarded images, had been pixellated, without his permission, and used in a number of forms including on several websites accessible around the world.”

I am no cynic, and I have respect for people’s work and spiritual purity, but this is nonsense. Copyright does not give an artist the power to control the way his work is used to the point that he can forbid transformative uses of it. Or, rather, it does, but only if he is willing to use his financial weight and the ways our legal system allows that financial weight to coerce those without the same resources. And that is hardly the behavior of a “purist.” But it is copyright overclaiming.

Art builds on art. Maybe Maisel should read The Gift, by Lewis Hyde. The introduction is available here (pdf).

It may be old fashioned to say so, but what Righthaven is doing is Champerty.

There is a lot being written about Righthaven’s most recent loss in its campaign to enforce the copyrights in newspaper articles it purportedly purchased the right to enforce. I’ve pasted in a copy of the decision, Righthaven, LLC v. Hoehn,  below. What seems most significant about the decision to me is the judge’s finding that Righthaven does not have legal “standing” to pursue the copyright infringement claim for the unlicensed use of an entire Las Vegas Review Journal article. I’ve previously written about this problem with Righthaven’s “business” model.

The problem is that Righthaven does not actually buy the copyright to the articles it subsequently claims infringement of. Rather, it only buys the right to sue for infringement if infringement occurs. The copyright owner retains all the other rights that go along with the copyright. Thus, in Hoehn, as Judge Philip M. Pro explains, the agreements between Stephens Media, the owner of the Las Vegas Review Journal, and Righthaven “deprive Righthaven of any of the rights normally associated with ownership of an exclusive right necessary to bring suit for copyright infringement and leave Righthaven no rights except to pursue infringement actions, a right which itself is subject to Stephens Media’s veto.”

In his treatise on copyright, William Patry states that a plaintiff in a copyright lawsuit “must plead ownership of the right sought to be vindicated.” Patry on Copyright, Section 19:7. In short, you cannot sue for violation of a right that is not yours to enforce. To allow Righthaven to do otherwise is to allow it to engage in the common law sin of “champerty,” which is the sale of a right to sue to someone with no interest in the alleged wrong being sued on for a percentage of the amount recovered. As the Second Circuit Court of Appeals has explained, champerty is “a bargain between a stranger and a party to a lawsuit by which the stranger pursues the party’s claim in consideration of receiving part in consideration of receiving part of any judgment proceeds.” Alexander v. Unification Church of America, 634 F.2d 673, 677 n.5 (2d Cir. 1980). As Patry explains it, Righthaven seems to have fallen into the trap of engaging in Champerty:

As applied to copyright, champerty may be found only when there is an assignment of the copyright and preexisting causes of action and where the assignment of the copyright was a sham designed to disguise the real intent of conveying the chose in action. For example, if the assignment required the assignee to reconvey the copyright at the conclusion of the litigation, this would be very strong evidence of champerty. If, however, the assignor continued to exploit the work in a manner inconsistent with an assignment of rights, a claim of champerty might prove out.

Patry on Copyrght, Section 5:36 (emphasis added).
Right Haven, LLC v Hoehn (D Nevada 2011)

One more step away from old (scholarly) publishing practices

Jeffrery Pomerantz writes of the difficulties he and his colleague, Diane Harvey, had in trying to negotiate a fair allocation of rights between themselves as authors and the journal The Reference Librarian in connection with an article Pomerantz and Harvey had been asked to write for an issue of the journal dedicated to the future of reference and library education.

The story reveals several important points. One I am clearly interested in is the importance of sound legal advice in locating and interpreting the precise matters authors are being asked to agree to. Simply figuring out what rights are being allocated and how they are being allocated is not an easy thing. First, the “agreement” the authors were asked to sign did not set forth the relevant policies they were agreeing to. Second, even after the journal had appeared to back off its original position, insightful legal reading of the new position showed it was the old one repackaged in new form.

Another point to be take is the leverage publishers have over certain authors — Pomerantz and Harvey are fortunate; they are sufficiently well established in their academic fields that they could afford to stand their ground and risk the journal’s refusal to accede to their demands on rights and the resulting refusal to publish their article.

A third point is that Pomerantz and Harvey were able to self-publish their paper with the ability to represent that it had already passed the journal’s peer review process, thus eliminating the only real weakness of self-publication: the absence of validation provided by peer-review. They have also published it in a manner that will permit ongoing comment, which in itself will provide a further level of peer review.

Is publication changing, or what?

hat tip to @asawusch on twitter.

Kutiman: Thru Jerusualem

What Lebron lost when he left Cleveland

For a year I’ve been flabbergasted by the thoroughness with which Lebron James destroyed the image he’d spent his life constructing. I still am. Dan Wetzel describes quite well what Lebron once seemed too smart to give up:

It’s too trite and small to view Cleveland as some bottomed-out, post-industrial postcard to the past. These aren’t all people trapped in awful times or terrible circumstances or living small lives in jealousy of LeBron’s big one.

There’s money here. There is success in Cleveland. There is contentment. As sure as there are poor in Miami, as sure as the VIP area of the Mansion Nightclub isn’t the full reality of South Florida, neither is some boarded-up East Cleveland warehouse the story here.

There are doctors and lawyers and entrepreneurs and financial planners and artists and teachers and dreamers and, yes, insulation installers. (“In the column can you mention the company, Pure Seal Inc.?”)

There are happy families and neighborhoods and the American Dream in full view. There are plenty of people who don’t have any personal problems who are quite content to keep their talents in Cleveland, a place they love just the way it is.

“We get a bad rep,” said Pawel Wencel, who happily moved back from Washington, D.C., and watched the game at Flannery’s. “It’s not New York. It’s not L.A. And we don’t want it to be.”

Why New York or L.A. can never seem to get that is anyone’s guess.

The distaste for James didn’t come solely from the desperate and the depressed, and to suggest as much is to miss the entire point, to insult the entire region all over again.

The “bitter” storyline has been told so many times that fans here are as sick of it as they are LeBron. There’s been an overcorrection of late, a trend to say they are over LeBron, that they are better than to bother with him.

That’s not honest either, though. This mattered. No one should have to apologize for it.

It’s not just how LeBron left but how he operated when he was still here. He talked such a big game. He promised to end the title drought. He gave them all those endless playoff runs, all those spring nights of entertainment. He was good to them. Then he wasn’t, bailing before the proper Hollywood ending.

And for what? . . .

With LeBron, a championship felt inevitable.

That was the destination. What was also lost was the journey.

The Cavs drew people together, city and suburb, white and black, rich and poor. They also connected family and friends. They gave reason to send a text message to someone you had drifted away from. They provided a reason to share an experience with your parents or your children or both. They offered an excuse to catch a game with a high school buddy.

And it gave all those ex-Clevelanders who had to chase their professional and personal dreams elsewhere feel that pull to these old neighborhoods, those old sunsets over the lake, those old memories of days and people back home.

At its best, that’s what professional sports can do for a place. It makes a city come together in the shared pursuit of something simple and tangible, even if, in the end, it’s not all that important. It just feels that way in the moment.

And that’s what many here feel James stole when he left. In one swift Decision, it was gone.

Downtown was marked by desolate streets, empty parking garages and half-filled bars on Sunday. The place should’ve been popping. That game in Miami should’ve been that game right here at the Q. Those fans screaming in Florida should’ve been right here in Ohio.

LeBron left, and that’s what he took with him to South Beach.