Chiptune Cover Album Leads to Huge Legal Bill

Chiptune Cover Album Leads to Huge Legal Bill

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A man who created a licensed and legal chiptune tribute to the classic Miles Davis album Kind of Blue is stuck with a huge legal settlement because he can't afford to defend against accusations that he improperly used the cover art.

When Andy Baio made Kind of Bloop: An 8-Bit Tribute to Miles Davis' Kind of Blue last year, he took all the necessary steps to ensure that everything was on the up-and-up. He licensed all the songs from Miles Davis' publisher and he gave all the profits from the Kickstarter fundraising campaign to the musicians who took part. To tie the package together, he had a friend recreate the original Kind of Blue album cover as a pixel art image. And that's where his troubles began.

Baio had everything squared away on the musical side of the coin but he hadn't sought permission to use the photograph that appeared on the Kind of Blue cover. In February 2010 he was contacted by lawyers representing Jay Maisel, the photographer who had taken the picture, who demanded "either statutory damages up to $150,000 for each infringement at the jury's discretion and reasonable attorneys fees or actual damages and all profits attributed to the unlicensed use of his photograph, and $25,000 for Digital Millennium Copyright Act (DMCA) violations."

After seven months of negotiations, Baio agreed to pay a settlement of $32,500 and promised not to use the pixel art image again. But he also insisted that the settlement is not actually an admission of guilt. "My lawyers and I firmly believe that the pixel art is 'fair use' and Maisel and his counsel firmly disagree," he wrote on his blog. "I settled for one reason: this was the least expensive option available."

That's right: despite Baio's firm and well-supported belief that his pixel art rendition is fair use, "In practice, none of this matters," he explained. "Anyone can file a lawsuit and the costs of defending yourself against a claim are high, regardless of how strong your case is. Combined with vague standards, the result is a chilling effect for every independent artist hoping to build upon or reference copyrighted works."

"It breaks my heart that a project I did for fun, on the side, and out of pure love and dedication to the source material ended up costing me so much - emotionally and financially," he continued. "For me, the chilling effect is palpably real. I've felt irrationally skittish about publishing almost anything since this happened. But the right to discuss the case publicly was one concession I demanded, and I felt obligated to use it. I wish more people did the same - maybe we wouldn't all feel so alone."

Kind of Bloop, minus the offending pixel art, is still available for five bucks at kindofbloop.com.

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Guy should be happy the artist is promoting his stuff, not sue him.

In the 21st century, don't bother paying homage to the things you love.

Don't they normal send one of them fancy cease and desist letters in cases like this, or did we just decide to jump right to the suing this time?

Veloxe:
Don't they normal send one of them fancy cease and desist letters in cases like this, or did we just decide to jump right to the suing this time?

Normally yes, but it sounds like they saw the dollar bill signs painted on an easy target. If he was distributing this for free or as a donation thing, they wouldn't of give a damn or at the very least, sent him a nice letter...

At this rate, Sooner or later we're going to have an article where someone is suing someone else for making a pixel version of a stick figure they drew.

Keith K:
In the 21st century, don't bother paying homage to the things you love...

...and then try to make money off of it without asking permission.

I realise he asked permission for the songs, but thats all the more reason he should have been smart enough to ask permission for the cover art.

I certainly don't agree with the actions taken by the photographer (he should have sent a C&D and only sued if it was ignored) but when you're making money using someone else's work, by law (not to mention common courtesy) you should be asking permission from the original artist.

This is all especially important when the product you're selling is in the same market (loosely speaking) as the subject you're paying homage to.

Sigh. What a depressingly ineffective system we have. Forced to pay $32,500 because he couldn't pay for his defense...stuff like this is why I'm a cynic.

Perfectly illustrates why copyright laws need an overhaul, it's legal blackmail; "pay us or pay even more defending yourself! no it doesn't matter if you're in the right"

Doesn't sound like there's any easy answer to this sort of situation. No one wins.

I would like to hear Maisel's side of the story though.

We should donate money.

Or, you know, tell him about how we can fight it in court for only 20$..

http://www.escapistmagazine.com/forums/read/7.247222-Copyright-Lawyers-Sue-Lawyer-Who-Helped-Copyright-Defendants?page=1

It's stories like this that make me firmly believe in the war over copyrights no side is really any better than the other. Sure using or downloading something illegally or without permission is wrong but so is suing someone into oblivion.

That photographer and his scumbag lawyer sued because they saw an easy target, nothing more. They are no better than the law firms that mass mail settlement letters accusing people of illegally downloading a movie or song to thousands of people at a time.

We need to trash the current copyright system and make one that actually works in the 21st century. The internet has effectively created a Star Trek style replicator for digital goods; they went to socialism in Star Trek because scarcity no longer existed. When it comes to digital goods, scarcity no longer exists in the real world now; it's time our government realizes that Gene Roddenberry's wet dream has come true, and stop trying to artificially enforce an outdated law. There are ways to make money that don't involve suing individual customers -- and yes, the same people who pirate stuff are the ones who spend the most money on the industry that they pirate stuff from. There have been studies on the matter that showed as much.

The lesson here is don't create things that use other things someone else already made & then try to sell it in the USA.

Owyn_Merrilin:
We need to trash the current copyright system and make one that actually works in the 21st century. The internet has effectively created a Star Trek style replicator for digital goods; they went to socialism in Star Trek because scarcity no longer existed. When it comes to digital goods, scarcity no longer exists in the real world now; it's time our government realizes that Gene Roddenberry's wet dream has come true, and stop trying to artificially enforce an outdated law. There are ways to make money that don't involve suing individual customers -- and yes, the same people who pirate stuff are the ones who spend the most money on the industry that they pirate stuff from. There have been studies on the matter that showed as much.

Any chance you could provide a link to said studies? I quite believe it, but I'd love to read an actual account of it being the case.

Red-Link:

Owyn_Merrilin:
We need to trash the current copyright system and make one that actually works in the 21st century. The internet has effectively created a Star Trek style replicator for digital goods; they went to socialism in Star Trek because scarcity no longer existed. When it comes to digital goods, scarcity no longer exists in the real world now; it's time our government realizes that Gene Roddenberry's wet dream has come true, and stop trying to artificially enforce an outdated law. There are ways to make money that don't involve suing individual customers -- and yes, the same people who pirate stuff are the ones who spend the most money on the industry that they pirate stuff from. There have been studies on the matter that showed as much.

Any chance you could provide a link to said studies? I quite believe it, but I'd love to read an actual account of it being the case.

Sure; here's the excerpt from one of the studies in question. Despite what it says in the text about pirates being less likely to buy music, that only applies to physical CDs. Once you start looking at digital services, they're actually the ones who are most likely to pay.

Torrent Freak Article talking about this.

Ars Technica Article about another study which shows an even stronger correlation between piracy and payment (According to this one, pirates are 10 times more likely to pay than non-pirates.)

Guardian Article about the same study talked about by Ars Technica.

If you think about it, it makes sense -- anyone who cares enough about music to pirate it has an edge over the general population, who tend to just listen to whatever is on the radio. It also has the benefit of introducing people to new artists that don't get radio play, which in turn makes people more likely to pay for the music -- you can't buy something if you don't know it exists.

To mods: I am not admitting to or advocating piracy. I am advocating a more realistic copyright system that recognizes that things have changed since the 20th century.

Ok, so from both sides of the coin.

A person who was that boned up on copyright law (admittedly maybe he only knows about music copyright) should have been aware that using the original image would result in this if he didn't ask permission.

However.

He didn't use the original image.

They clearly used it as a point of reference... But that's as far as it goes, you can look at it, know what it's supposed to be and then appreciate that it's its own image.

Honestly, it's sad that this guy couldn't afford the legal fees, I'm almost certain he could have laughed this guys ass out of the courtroom after the judge looks at the images for 3 seconds and spots the key difference. They're both different images

Owyn_Merrilin:
We need to trash the current copyright system and make one that actually works in the 21st century. The internet has effectively created a Star Trek style replicator for digital goods; they went to socialism in Star Trek because scarcity no longer existed. When it comes to digital goods, scarcity no longer exists in the real world now; it's time our government realizes that Gene Roddenberry's wet dream has come true, and stop trying to artificially enforce an outdated law. There are ways to make money that don't involve suing individual customers -- and yes, the same people who pirate stuff are the ones who spend the most money on the industry that they pirate stuff from. There have been studies on the matter that showed as much.

Line kinda gets blurred when you actually start profiting off someone else's work without so much as asking permission.

Spot1990:

Owyn_Merrilin:
We need to trash the current copyright system and make one that actually works in the 21st century. The internet has effectively created a Star Trek style replicator for digital goods; they went to socialism in Star Trek because scarcity no longer existed. When it comes to digital goods, scarcity no longer exists in the real world now; it's time our government realizes that Gene Roddenberry's wet dream has come true, and stop trying to artificially enforce an outdated law. There are ways to make money that don't involve suing individual customers -- and yes, the same people who pirate stuff are the ones who spend the most money on the industry that they pirate stuff from. There have been studies on the matter that showed as much.

Line kinda gets blurred when you actually start profiting off someone else's work without so much as asking permission.

Except he wasn't profiting off of anyone's work without permission. Did you read the article? He settled because the lawyers fees for winning the case would have cost him more than the settlement, even though he hadn't broken any laws.

Owyn_Merrilin:

Spot1990:

Owyn_Merrilin:
We need to trash the current copyright system and make one that actually works in the 21st century. The internet has effectively created a Star Trek style replicator for digital goods; they went to socialism in Star Trek because scarcity no longer existed. When it comes to digital goods, scarcity no longer exists in the real world now; it's time our government realizes that Gene Roddenberry's wet dream has come true, and stop trying to artificially enforce an outdated law. There are ways to make money that don't involve suing individual customers -- and yes, the same people who pirate stuff are the ones who spend the most money on the industry that they pirate stuff from. There have been studies on the matter that showed as much.

Line kinda gets blurred when you actually start profiting off someone else's work without so much as asking permission.

Except he wasn't profiting off of anyone's work without permission. Did you read the article? He settled because the lawyers fees for winning the case would have cost him more than the settlement, even though he hadn't broken any laws.

Oh, I actually agree that in this case he was right. I also agree with your stance on piracy and ineffective copyright laws. I'm just saying that that argument doesn't really apply when people start profiting from piracy which is what the photographers complaint was, even though I think he was wrong.
.

Veloxe:
Don't they normal send one of them fancy cease and desist letters in cases like this, or did we just decide to jump right to the suing this time?

If the product has been out on sale (and making money) it's usually straight to the lawyers, cease and desist is no good when money's already changing hands. Also, in the age of the internet copyright on images is exceptionally poorly respected, most photographers and artist's will either pay no attention or go for the litigation, any other response tends to get a resounding 'lol, fag' type reply.

Unfortunately for Mr Baio, Jay Maisel('s legal team) are in the right. It's clearly a copy of his photograph and it's being used for profit, specifically designed to replicate the original and trading on people's recognition. He can claim fair use all he likes but it's still plagiarism. He should have checked up the licensing on the image as thoroughly as he didthe music, usually you can get a license for a photo for a nominal fee.

It's a small oversight, but it's comeback to bite him in the ass big style. I expect whatever he's had to sign in the settlement includes and admission of responsability as well regardless of his statement.

Owyn_Merrilin:
We need to trash the current copyright system and make one that actually works in the 21st century. The internet has effectively created a Star Trek style replicator for digital goods; they went to socialism in Star Trek because scarcity no longer existed. When it comes to digital goods, scarcity no longer exists in the real world now; it's time our government realizes that Gene Roddenberry's wet dream has come true, and stop trying to artificially enforce an outdated law. There are ways to make money that don't involve suing individual customers -- and yes, the same people who pirate stuff are the ones who spend the most money on the industry that they pirate stuff from. There have been studies on the matter that showed as much.

The problem with rebuilding the system from the ground up is that the people creating the laws are influenced too much by the self interests of multi-billion dollar lobbyists. Disney has challenged the reworking of copyright laws enough times for me to come to the conclusion that, more than anything, they fear the public domain.

image

The law needs altering but I fear that it could become worse rather than better.

 

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