The Kickstarter Blog

Kind of Screwed

Original photo © Jay Maisel. (via waxy.org)
Original photo © Jay Maisel. (via waxy.org)

Back in August of 2009, when Kickstarter was still a baby and the TikTok a mere twinkle in Scott Wilson's eye, Andy Baio launched his Kickstarter project, Kind of Bloop. It was the 50th anniversary of Miles Davis' "Kind of Blue," and to commemorate it, Andy rallied a group of chiptune artists to reinvent the album using 8-bit sound. Think Freddie Freeloader fed through a Nintendo. 

Everyone loved it.

A year later, Andy found himself in the middle of a lawsuit over the cover art for "Kind of Bloop," a completely recreated pixel art version of Jay Maisel's photo. Andy eventually settled with Maisel out of court, to the tune of $32,500 and the loss of rights to ever use the cover image again. "But," as Andy says, "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."

In short, a sobering reminder to those of us doing creative work that sometimes the law can interfere even with our best intentions.

Andy explains the whole thing on his blog today, and we urge you to hop over and study the many examples and interpretations of fair use he's collected.

And this is just as good a time as any to reiterate what we say in our Project Edit page:

Don't use music, images, video, or other content that you don't have the rights to. Reusing copyrighted material is almost always against the law and can lead to expensive lawsuits down the road. The easiest away to avoid copyright troubles is to create all the content yourself.

Comments

    1. Creator Mark Nowotarski on June 23, 2011

      I would also add that professional photographers are especially sensitive to unauthorized reproduction of their images.

    2. Creator Bill Farren on June 23, 2011

      What a drag. An interesting primer on fair use in comic book form here: http://www.law.duke.edu/cspd/comics/zoomcomic.html

    3. Creator Standard Definition on June 23, 2011

      I wonder why Kicks didn't stop this art being posted from the git go, if the policy is "Reusing copyrighted material is almost always against the law." No offense, but it's pretty easy to see how close the pixellated image is to the original, and that *was* Jay Maisel's intent in using it. Not much original about his cover art. Just like "covering" the tunes, expropriation of original work.

    4. Creator Paul Edward Nowak on June 23, 2011

      Nolo press writes some good, affordable books on IP law that cover this. The one on the public domain is excellent.

    5. Creator Colin Matthews on June 23, 2011

      It's fairly rare that a photograph is iconic enough to garner a stylistic tribute. It's a shame that the photographer was insulted by what can only rationally be viewed as a compliment. Would a musical artist sue over an 8-bit composition of their original song? Of course not, that would be utterly absurd. So how is this any different?

      The professional photography world, by-and-large, has failed miserably to adapt to the many drastic changes that the medium has undergone in the past decade or so, leaving so many otherwise respectable photographers bitter and volatile.

    6. Creator Nate O on June 24, 2011

      @Colin: There is a difference between visual art and music that is important here: in music, you can pay a compulsory license fee to cover a song and gain the rights to perform it whether or not the copyright owner would agree to license it to you themselves. Hence the lack of suing over covers. But I myself would certainly view it as a compliment if I were in Jay Maisel's position.

    7. Creator William Bean on June 24, 2011

      I have a feeling that "least expensive option available" is now the primary reason for out of court settlements. Seeing the cover art from the original album and the "Kind of Bloop" cover I have to agree that this was fair use.

    8. Creator Gray on June 24, 2011

      "... the result is a chilling effect for every independent artist hoping to build upon or reference copyrighted works."

      That's really the crux right there. When creativity is chilled, we all lose.

    9. Creator Colin Matthews on June 25, 2011

      @Nate O: You make a good point, and I was just trying to be emphatic about my distaste for this particular situation. I certainly should have used a more sound (haha) comparison. I'll also emphasize that IP issues for photographers are by no means black and white though, and there are many justifiably upset professionals out there-- though a $32,500 settlement seems fairly questionable on the surface. I'd be interested to see just how they came up with that number.

    10. Creator lble77 (deleted) on July 29, 2011

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    11. Creator lblf12 (deleted) on July 30, 2011

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    12. Creator lflb26 (deleted) on July 31, 2011

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    13. Creator lblf66 (deleted) on August 1, 2011

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    14. Creator llf48 (deleted) on August 1, 2011

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    18. Creator lflb90 (deleted) on August 4, 2011

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    19. Creator lflb81 on August 5, 2011

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    20. Creator lflb85 (deleted) on August 11, 2011

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    21. Creator lelb40 (deleted) on August 12, 2011

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    22. Creator lelb53 (deleted) on August 12, 2011

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    23. Creator Martin Touhey on November 22, 2011

      What about in the case of news footage? Doesn't that fall into the public domain? Would it be possible that somebody other than the news station owns that footage?

    24. Creator Shiv Shambhu on February 13

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    25. Creator Shiv Shambhu on February 13

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