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).