News

Breaking: Millionaire Extorts $$$ From Artist, Street Artists Strike Back

by Hrag Vartanian on June 30, 2011

In our quest to uphold justice and the American way, we feel compelled to publish the following information we received about an artistic response to a fair use travesty:

The new street art pieces on the wall of the 70-room mansion at Spring and Bowery.

Last week, I saw this post by Andy Baio, about how he was sued by Jay Maisel and forced to pay $32,500 for failing to license Maisel’s photo of Miles Davis. I was upset by it. First, because Andy’s 8-bit remake of the photo was clearly transformative fair-use. Second, because it was being used for a non-profit art project that Andy made no money from, and third, because Andy’s use had no negative consequences for the market for Jay’s shot. Finally, the fact that Jay Maisel is a multi-millionaire who lives in a 70+ room mansion on Bowery and Spring, and that he felt compelled to extort $32,500 from a relatively poor artist by threatening a specious lawsuit — well, that just really got my goat.

So I was thinking about all of this, when another friend of mine, who’s also passionate about fair use, reminded me that Jay’s building is one of the major street art spots downtown. Wouldn’t it be amusing, my friend suggested, if we hit the building with a few copies of the very image he sued Andy over — perhaps with an appropriate tagline — we eventually agreed on “all art is theft.” That summed up our support for Andy’s piece, and was also a comment on the way Jay was thieving from Andy by suing him. There was just one problem with this plan: neither of us were artists — and we didn’t know anything about making graffiti. However, my friend did have money to put towards the project, and I had some friends in the street art underground, who, for a modest contribution, were willing to help us make a statement about fair use, artistic authorship and not being a sue-happy dick.

It took about five days with a few setbacks. The first team backed out — they felt like the spot was too hot these days with police presence from the bars on Bowery. Another challenge was getting the print blown up — we just had a tiny 300 pixel image from Andy’s internet post. The team we found needed a vector image, so I used a program online to turn the JPG into an EPS file. One thing I liked about this is that it is actually another form of appropriation- a second degree copy (with further imperfections) of Andy’s copy of Jay’s work. Anyway, after much work, last night our project came to fruition — the team hit the building three times.

I hope that every time Jay leaves the house, he sees these posters — and as he looks at them or tries to tear them down he thinks about how evil what he did was. Maybe he’ll realize that at some level all art borrows from other art, and suing another artist for fair use appropriation undermines all artists. Maybe he’ll feel guilty about being such a thief. And then maybe he’ll think about giving that money back- or donating it to charity or something. But probably not.

The project was pretty satisfying for me personally— it’s the first time I’ve ever paid for the execution of illegal graffiti. And it got me thinking about whether this is a legitimate kind of artistic and political expression in itself. Like Sol Lewitt or Damien Hirst’s work, where they just give the instructions and pay the artists who actually make the stuff. I’m also reminded of Yves Klein’s “Immaterielle” piece (1959-62) — where collectors paid him to dump gold into the Seine. Is there a corollary in the graffiti/streetart world? I think there might be a place for people like us — who aren’t actually artists themselves, but want to play a role in executing illegal work.

Anyway, this was fun — and I think we made an important political point about fair use and artistic appropriation. I’m going to think about whether there are any other political or artistic issues that might require another piece like this- and maybe call together another team for a contract art hit soon.

Our thoughts … Art wins!

 

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  • http://unutterable.org GiovanniGF

    While this must have been satisfying to the people involved, I don’t really see it as much of a triumph. It didn’t make Jay Maisel back down, it didn’t do anything substantial to prevent assholes like him from doing this again in the future, and it didn’t raise money to help Andy Baio pay (or even better – fight) the lawsuit. I think artists should really ask ourselves how truly effective our “political” triumphs are before we pat ourselves on the back.

    • http://hragv.com Hrag Vartanian

      The politics are important but symbolic victories are great, too. But yes, next stop the White House! Well, after I finish a few things up ;)

      • http://unutterable.org GiovanniGF

        True, I’ll grant you symbolic AND moral victory.

      • Anonymous

        You guys are idiots – this wasn’t even a symbolic victory. Just because you hipsters grew up in a steal music, free-for-all generation, doesn’t mean intellectual property shouldn’t be respected or that there isn’t value placed on creative work. Commercial artists have fought long and hard to be paid for their work, just because no talent idiots like you think it should be free doesn’t make it right.

        There is also a right way to go about using other peoples work, like contacting them before hand and asking for permission, and if they don’t grant permission you don’t use it … PERIOD. This is a process that generations of designers and art directors have followed. I have an idea … why don’t you create your artwork? Shoot your own photographs? This generation has become fat and lazy, feeding off of the creatives who came before them and then go off on righteous indignation when people want to be compensated for their work.

        • http://www.facebook.com/profile.php?id=1448183332 Kellen Dunkelberger

          derekdj doesn’t understand fair use.

          • http://pulse.yahoo.com/_Q7GWIIWLV7BCZHQFMQAC3IXRUQ Daniel Marquez

            Actually.. I really think all of the people that are running around going “OMG I cant believe I got sued for using something that’s someone elses” Dont.   

            Just because you -think- you have a fair right to use something doesnt mean you -actually- do.  That’s the prob here.  If you have a doubt about it.. ask. 

            The problem here is that he made a commercial project about it.  The FIRST second someone wants to commercially do something, one should say “Maybe i should clear this”

            Thats not fair use.. that’s being smart…  but apparently if left to everyone else us whippersnappers dont know anything. You should be able to wave your mice in the air and claim “We own it all.. fair use fair use”

            Thats naive.. and wrong. 

          • David Pfau

            Unfortunately, even if you -actually- do have the right to use something, it is extremely hard to -prove- that you do.  It’s extremely easy to file a copyright infringement claim.  It’s extremely expensive to go through litigation to defend yourself.  So rich established artists like Mr. Maisel can put a muzzle on younger artists starting out just by -threatening- to sue, even if they’d be likely to lose if the case actually went to court.

            Incidentally, I live in the neighborhood and considered doing something like this myself. But I figured, wait around and someone else would have the same idea. Glad to see I was right!

          • http://twitter.com/mukeshwani Mukesh Wani

            He did it for charity right? Is that same as commercial when he himself was not going to earn a single penny of profit from the project? In my opinion, whether he should have asked or not, out of understanding that someone can make a mistake – Jay M. should have given a warning and resolved it without any money exchanging hands. Look at it this way, people that didn’t know Jay now have a 50% chance of thinking he is a rich egotistic asshole that thinks he is the best artist in the world and can do anything. There is such a thing call being humble that his mama probably forgot to teach him maybe. Instead he could have taken the opportunity to further extend his image by helping Andy with this charity work, he could have made this turn into a profitable “advertisement” for him which may have garnered more than 32K and possibly prevent 50% of readers to think he is a dick. There is always a right way of doing things and the best way of doing things…he chose the right way. Andy should have asked (especially if he knew it was a copyrighted photo) but hey he is NOT the first one to make a mistake in this world and will NOT be the last one in this world.

          • Anonymous

            Is it clear that the first contact Andy had was notification of a lawsuit? I’m dubious of this. Most lawyers will send a cease and desist first. I wrote and photographed for a company that had a serious team of lawyers protecting copyright. I know of no instance during my time there, when a lawsuit was a first course of action. It seems to me a piece of the story might be missing. And, I agree with the others here who say that permission should have been granted. I routinely ask photographers to use their work in projects, but if permission is denied or the licensing is too steep, I move on. I offer some of my own photos under Creative Commons and share-alike licenses, so I support CC. But I also respect an artist’s right to do as he or she chooses under copyright law. I have a tough time empathizing with Andy on this one. Good judgment would have precluded launches such a massive project without proper permissions and clear-cut fair use law (which it isn’t).

        • http://www.theothertomelliott.com Tom Elliott

          Stealing music and fair use are completely separate issues. One is genuine theft, the other is creating something new and adding to culture. Every generation has fed off the ones before.

  • http://twitter.com/jennydevildoll Jenny DevilDoll

    Did anyone else see the headline and think it was gonna be about Bloomberg’s NYC/gentrifying the shit out of artist-infested neighborhoods?

  • http://twitter.com/liamadrain Liam Drain

    Could you explain more about how you turned a JPEG into and EPS image?

  • Natalie Race

    Please make and post a lot more posters. Cover those walls!

  • Anonymous

    Oops

  • http://twitter.com/Moeskido Moeskido

    Speaking of being “sensitive to art,” did Baio ever ask permission of Maisel to use the image before modifying it for a commercial release?

    • Nick Husher

      If you read the linked post by Andy Baio, you’ll find out.

      To save yourself some time, no he didn’t. But, if the pixel art version falls under fair use, he doesn’t have to. Given that the pixel art version was a recreation of the image from scratch, it seems like it probably would/should be fair use. 

      Baio didn’t have the money to mount a legal defense, so he settled. It was a no-fault settlement, so there was no ruling about whether or not it was fair use.

      That aside, Maisel was described by Baio as a photographic purist who wouldn’t have authorized such a derivative work anyway.

      • Anonymous

        See, my big issue with this whole thing is that Baio felt the need to license the music but then outright admits he didn’t feel the image had to be licensed? So one work of art deserves a license but not another? Just feels wrong and hypocritical to me.

        And if Maisel wouldn’t license then you carry on as an adult and use a different image.

        *Maisel is still a dick for bringing out the big guns and taking the money. Then again, if you’ve ever had an image stolen or misappropriated you start to realize photographers are pissed on on a nearly daily basis.

        • Alice Marwick

          There is no licensing for images that doesn’t require the permission of the photographer, unlike with music. Meisel had already stated that he would never license the image under any conditions so it wasn’t an option for Baio.

          • http://profiles.yahoo.com/u/5YW7F65MA5WAVBWEPVR4SVSH7Q Daniel

            Fair use though still only applies to uses outside the medium and original use of the image.  Fair use stops and licensing is needed the minute it’s used within the same realm as the original because it creates an unwanted confusion or use of the original image or product to sell an imitation of it within the same market.  I guarantee you that Meisel controls the publishing to the image outside of promotional use by the record label itself.  It is a commercial image on a licensed product and therefore publishing and licensing rights are held to it either by him or jointly with the label or Davis’ estate.  This case is the exact reason copyright laws exist.

          • http://www.facebook.com/profile.php?id=1448183332 Kellen Dunkelberger

            Wait Baio used wasn’t Maisel’s image.  

          • http://profiles.yahoo.com/u/5YW7F65MA5WAVBWEPVR4SVSH7Q Daniel

            No but Baio’s image is recognizable because of the high profile of the original image and is being used for the exact same purpose, that’s where the fair use argument gets stretched.  If he used it for promotional things like t-shirts, posters, or buttons to promote the album that would fall safely under fair use.  He ventured out of that territory into a murky licensing place by putting it on an album cover that reinterprets the original album that used the original picture.

        • Edward Steel

          He didn’t license the recordings of the music. He licensed the score, i.e. he licensed the composition, not the original work. There is no analog for visual works, but it certainly doesn’t imply he should have tried to license the original photo.

      • http://www.facebook.com/people/Megan-Ray/100000320201172 Megan Ray

        But how is this fair use?  The image, though pixelated, is barely changed and is being used to market a compilation of Miles Davis songs, putting it in direct competition with the original image.  Baio seemed to realize that he needed to clear the song rights but took it for granted that any small tweaking of the image could constitute fair use.  He was right to settle the claim because he likely would lose a court case. 

        And is it more or less OK to steal the image if Maisel wouldn’t have authorized the use?  Is it OK to steal a car because the owner won’t let you borrow it?  

        • http://veken.org Veken

          The image was a recreation and interpretation from scratch. It was not a tweakage.
          Have you listened to the Kind of Bloop songs? I would not necessarily call it competition to Miles Davis.
          http://kindofbloop.com/

          • http://www.facebook.com/people/Megan-Ray/100000320201172 Megan Ray

            Yet this was an album of Miles Davis covers, and the original photograph is still highly recognizable in the final image.  He could have recreated the photo using twigs and berries and he would still have run up against the same problem.  The fact is he’s using the image to market an album of Miles Davis songs.

          • http://veken.org Veken

            Actually, being recognizable and being inspired by an existing work does not qualify as copyright infringement.

            Are you really suggesting a recreation with twigs and berries would be copyright infringement?

          • http://www.facebook.com/people/Megan-Ray/100000320201172 Megan Ray

            It could be.  The act of recreation does not, in and of itself, constitute fair use.  Taking an album cover, pixelating it, and using it as an album cover, does not, in and of itself, constitute fair use.  Put the two images side by side and take off your glasses, you might not be able to tell which is which.  

          • http://veken.org Veken

            Right but the album cover was not taken then pixelated. it was recreated by hand.

            Which to me gives it more reason to consider it as “transformative”. But there is no clear way to define that without a judge.

          • http://pulse.yahoo.com/_Q7GWIIWLV7BCZHQFMQAC3IXRUQ Daniel Marquez

            By that logic, the watches that are sold on 5th avenue are “Transformative” as they are not the best quality- dont really compare to the original,  and aren’t made in the same manner that the original Gucci ones are.  Most of those.. are put together by hand.  I see.. Transformative. 

          • http://www.facebook.com/profile.php?id=1448183332 Kellen Dunkelberger

            That analogy is stupid.  Watches aren’t copyrighted works.

          • http://pulse.yahoo.com/_Q7GWIIWLV7BCZHQFMQAC3IXRUQ Daniel Marquez

            Right, the watch -isnt- a copyright..  but the picture is.  

            Something that is manufactured by a company that has X of a price value =isnt= protected by a copyright..  but a mans photograph -is-

            That alone should make someone -consider- asking for permission.  If the analogy felt stupid it means you inherently understand the concept of copyright..  now you should understand why in a commercial sense its important to clear things.

            Now, the moment you start the counter argument with “He didn’t have to clear it with.. ”  This argument becomes moot.  If you believe that he didnt have to, you’re just sticking to your idea that he was right.  But that’s just an idea..   not a fact. 

            The fact is – if he were using it for a commercial project – he should have been more dilligent. 

          • http://profiles.yahoo.com/u/5YW7F65MA5WAVBWEPVR4SVSH7Q Daniel

            She’s right. It still creates a legal situation where the consumer could be perceived to be misled into confusing it with the original image and the original product, since it is being used for the same exact purpose as album art for an album of songs, that is an imitation of the original.  
            If I as an artist created a parody of the McDonald’s logo as a recreation and adaption of the original purpose as art, that’s fair use.  The minute I start selling my own hamburgers with that logo, I’m now in a legal situation where I am directly competing with the original product.  I can now legally be accused of misuse and infringement of their logo with intent to misdirect the consumer by making it appear as the original, or something close enough to it, that there is no mistaking intent to use recognition of the original to sell my own competing inferior product.

          • http://chipotle.tumblr.com/ Watts

            The album was what’s known in the industry as a “cover” or “tribute” album. Former October Project lead singer Mary Fahl just released “From the Dark Side of the Moon,” an album which is her version of Pink Floyd’s “Dark Side of the Moon” — every track of the original in the same order. There’s no “intent to misdirect”: the album’s titles are similar but not identical; the artist names are clearly not the same; and, of course, the music is clearly being performed by someone else.

            Your argument against Baio seems to hinge on the idea that while the same things as Mary Fahl’s albums I enumerated above are also true in his case (the title is not the same, the artist is not the same, and the performances are not the same), a blocky redrawing of Maisel’s photograph used as the cover art would suddenly create market market confusion, turning his work from a tribute album into a nefarious attempt to fool consumers who were intending to buy Miles Davis’ original work into buying Baio’s instead. With all respect, you *do* see why that’s completely preposterous, don’t you? Of course you do.The thing that rankles people who are rankled about this, more than anything else, is that Maisel’s attorneys didn’t merely send a “cease and desist” order, they sued for a sum of money which is *extremely* hard to portray as material loss caused by Baio’s appropriation. At any rate, even if you don’t think redrawing a photo as pixel art is sufficiently “transformative” to qualify as fair use under the law, the comparisons I’m seeing people make here are really far off the mark. If one wants to argue that Baio should have gotten clearance first, that’s perfectly defensible; comparing him to someone selling knockoff Rolexes is pretty damn unwarranted.

          • http://www.facebook.com/people/Megan-Ray/100000320201172 Megan Ray

            I would assume that Mary Fahl licensed the music, as indeed Baio did.  Fahl, however, went with an original cover.  No one would visually confuse her version with the original album.    

            Look at it briefly from Maisel’s side.  It’s a powerful, iconic image, one of many iconic images the photographer has shot over the years.  I doubt that this is his first experience with copyright infringement.  I wonder how many “cease and desist” letters one sends out before realizing that they don’t act as a deterrent.  

          • http://profiles.yahoo.com/u/5YW7F65MA5WAVBWEPVR4SVSH7Q Daniel

            Stop with the patronizing, I know what a cover is and when you record and release an album of covers you still have to clear most songs. You do realize that songs still have to be cleared and you pay for publishing to owners of the publishing rights when you record a cover when it’s not public domain right? Sure you do. The copyright wording for commercial art also covers a lot of music publishing copyrights as well.  So even if there is no “nefarious attempts” the law still allows for the copyright holder to seek protection for the work, if the holder him/herself feels that it is still too close to the original and used in the same manner and feels that the intent is there.  It’s not my argument it’s called copyright law and trademark law…  Maybe you should read up on it.
            Do I think maybe he should’ve been more amicable, yes but he may also be trying to deter future attempts to use his work in this manner again since he obviously doesn’t agree with it. Most settlements or damages awarded for infringement tend to exceed actual material loss on the part of the original holder. It’s meant to be punitive to prevent future attempts at the same thing by the individual paying or other individuals in the future.

          • http://chipotle.tumblr.com/ Watts

            I apologize for coming across as patronizing; the point I was trying to make is that the use of the music for the re-recording and the use of the photograph for the redrawing are not as directly comparable in terms of the legal issues as you and others are making it out to be. New recordings of copyrighted music have a “compulsory license” regime which essentially *requires* the publishers to let someone make cover works as long as they’re paid a fixed amount by a certain time. Baio had to, and did, pay royalties for the use of the music, but that’s a very well-established legal convention that has nothing to do with interpretations of the fair use clause. What he did with the Maisel photograph doesn’t fall into the same bucket of copyright law, and the questions about the fair use clause come up in a way that they simply don’t with the music.

            I’m less sanguine now about the applicability of the fair use clause here than I have been, but I really do have doubts that some of the key litmus tests — most notably “the amount and substantiality of the portion used in relation to the copyrighted work as a whole” and “the effect of the use upon the potential market for or value of the copyright work” — should be taken to be on Maisel’s side here. Baio’s pixel drawing is clearly based on Maisel’s photograph, but none of Maisel’s work is actually *in* Baio’s, and the “Kind of Bloop” cover artwork surely does no harm to the market for authorized reproductions of Maisel’s actual photograph.

          • http://profiles.yahoo.com/u/5YW7F65MA5WAVBWEPVR4SVSH7Q Daniel

            Yeah I thought about your last point too.  None of Maisel’s actual work is in Baio’s picture but the problem starts with it being derived from Maisel’s photo and used in almost the same exact way as the original, as cover art for an album of Miles Davis covers.  Would we have a debate if it was just a cover of a collection of jazz songs, from different artists and the image was used as a nod to a seminal record?  We probably wouldn’t be having such an intense discussion, but the nature of it being used for a sort of interpretive recreation of the actual record, that the actual photo appeared does stretch the fair use claim.  Like I said, without any nefariousness implied, If I designed a parody of the McDonald’s logo, slapped it on posters, buttons etc, I’m fine, the minute I use it to sell hamburgers though, legally McDonald’s does have the legal right to challenge me for infringement, no matter who may be in the right here, they do have legal recourse to challenge my use of the logo.

          • http://pulse.yahoo.com/_Q7GWIIWLV7BCZHQFMQAC3IXRUQ Daniel Marquez

            Just because it isn’t competition doesn’t mean its not a violation.  Standing in the middle of the theater with a camera recording a movie creates a really bad version of it.  So does that mean that because it doesn’t compare with the REAL version that’s on the screen, I can just call it “A Tribute to being in a Movie Theater When Star Wars III came out” , give the money to the people who helped buy me the camera and call it charity?

          • http://www.facebook.com/profile.php?id=1448183332 Kellen Dunkelberger

            This isn’t a remotely good analogy.  

          • http://pulse.yahoo.com/_Q7GWIIWLV7BCZHQFMQAC3IXRUQ Daniel Marquez

            Explain why it isnt.  Rather than just yell at the screen, -you- explain how that logic doesnt work rather than mob

          • http://www.megatoothpastemammals.com Carpeteria

            Because an analogy is when you make a fair comparison between two like things.

          • Marc W

            You all keep using that word “fair.” I do not think it means what you think it means.

          • http://www.megatoothpastemammals.com Carpeteria

            So then, by your own definition, an analogy can be unfair in its comparison? If that were the case, what would be the point of the analogy?

        • Anonymous

          Fair use has always been a difficult area which is why many design/ad agencies and content companies employ lawyers to review questionable artwork before it is actually used. It is also the difference between professional commercial artists who’s livelihood depends on respecting intellectual property and those who ignore the rights of others and feign indignation when people want to be compensated for their work.

          The blog post cites many famous examples in the defense of fair use in the name of “art”, on the other hand there slews of law suits against artists like Jeff Koons, Kostabi and the like, by artists whom they’ve co-opt that argues differently.

          The right way to go about this is the way professionals have operated since the dawn of IP law, seek permission, pay the price or don’t use it and create your own works of art. To say “it’s a Tribute to …” is nothing more than creative laziness.

  • Anonymous

    While I agree with most of what you say, its not exactly a non-profit Art project.  The artist may have not gotten paid, but from is said from Waxy the kickstarter grant was used to pay the musicians involved in the project, not say a 501 organization. 

    Granted it wasn’t a commercial endeavor where there stands to be a profit.

  • Anonymous

    If the poster pasters had any real balls, they’s tak a Maisel photo “fair-use” it, put the result up for sale and then stand up and battle Maisel and his lawyers.

    • http://pulse.yahoo.com/_Q7GWIIWLV7BCZHQFMQAC3IXRUQ Daniel Marquez

      I think that is the most sensible thing i’ve read in this entire post.. people here are just sounding like a bunch of spoiled art students.  Let’s take it to the man! Let’s make graffiti!  Our voice will be respected!  

      You know what else would be respected?  Your understanding of copyright law.  Read Up.  Argue it. Highlight the issue without crying all over the art easel.  This just looks petty.

      • emily_wk

        Serious question – did you read the post where Baio talked about it? Didn’t he, you know, not even have enough money to find out if his claim of fair use was legit? So how can you say that he doesn’t understand copyright law. He got run over by a tank and had no opportunity to fight back, so you don’t even know what the courts would have decided.

        • Marc W

          Baio is worth multiple millions of dollars, unless he blew it all on defending lawsuits. He has said himself that the settlement did not seriously harm his family’s financial position.

    • http://www.facebook.com/profile.php?id=1448183332 Kellen Dunkelberger

      This assumes that they, as well, can afford that.  

  • http://twitter.com/cindyhwang Cindy Hwang Bokser

    I love this so much.  Good for you for going out of your way to back Andy up. Jay Maisel should be ashamed of himself!

  • http://pulse.yahoo.com/_Q7GWIIWLV7BCZHQFMQAC3IXRUQ Daniel Marquez

    Alice:  So because it wasnt an option, he made it an option for himself?  

  • Anonymous

    I would like to look at this blog posting critically, keeping in mind this is listed as News, lets start with the headline:

    “…Extorts $$$ From Poor Artist, Street Artists Strike Back” – Poor Artist, does anybody know what Andy Baio is really worth? Has anyone asked him about his financials? Does this really even matter in a copyright dispute?

    “In our quest to uphold justice and the American way…” Applies to everyone including Mr. Maisel, last time I checked America is a capitalist society. I do appreciate your ability and willingness to exercise your right to free speech.

    “…forced to pay $32,500…” Mr. Baio chose to settle, he chose to pay, he was not forced by the court of law. I know defending yourself can be extremely costly, did he look to any of the artist rights services for help and possibly pro bono legal council (such as: http://www.vlany.org/).

    “…clearly transformative fair-use…” Opinion and certainly up for dispute since the image was used for the exact same purpose – album cover.

    “…non-profit art project that Andy made no money from…” The album cost $5.00 to download with proceeds going to the artists involved, it is certainly a money making venture. Has Andy made available the number of downloads to date? Perhaps he has made his $32,500 back and then some since his blog post.

    “…relatively poor artist…” See above.

    “…a second degree copy (with further imperfections) of Andy’s copy of Jay’s work.” A glimmer of hope, there is some truth in this article.

    “…the team hit the building three times.” I think it is cool you are willing to take responsibility for your criminal actions.

    “Like Sol Lewitt or Damien Hirst’s work, where they just give the instructions and pay the artists who actually make the stuff.” Mr. Lewitt created the blueprints to recreate his art, the blueprints were reproduced as limited editions with certificates of authenticity. When you buy a piece by Sol Lewitt you are buying the right to recreate his work. If you sell the blueprint you are compelled to destroy the work.

    “I think there might be a place for people like us — who aren’t actually artists themselves, but want to play a role in executing illegal work.” Can you please explain this sentence to me?

    In closing, Jay Maisel busted his ass for 50+ years in the fine art and commercial art businesses, is a pioneer for artist rights, took massive risks, and became a success. The American way.

    • http://hragv.com Hrag Vartanian

      Thanks for chiming in, here are my comments to your comments:

      ***
      I removed “poor” since I meant it in more ways than financially, but as you pointed out it can be confusing and I personally don’t think it’s critical to the story.
      ***In terms of the American way, that’s subjective so yes, it is the American way in our books.***I love VLA but you may want to know that they’re selective about the cases they choose, they don’t help everyone (it’s impossible), so that’s a good suggestion but not based on facts.***Transformative use is partly opinion and since there are no legal papers, your opinion or mine don’t really count so we can say anything. A judge can only decide.***”…the team hit the building three times.” I think it is cool you are willing to take responsibility for your criminal actions.Some of us would like to see street art decriminalized … stick around this blog and you’ll see how the topic comes up now and again.***
      “Like Sol Lewitt or Damien Hirst’s work, where they just give the instructions and pay the artists who actually make the stuff.” Mr. Lewitt created the blueprints to recreate his art, the blueprints were reproduced as limited editions with certificates of authenticity. When you buy a piece by Sol Lewitt you are buying the right to recreate his work. If you sell the blueprint you are compelled to destroy the work.

      Yeah, Hirst’s spin paintings don’t have blueprints. They are a concept that is execute and sometimes created for fun by partygoers with him watching. And lots of these concepts of rights are created by gallery owners who are interested in creating value, etc, and not the artists.

      ***
      “I think there might be a place for people like us — who aren’t actually artists themselves, but want to play a role in executing illegal work.” Can you please explain this sentence to me?

      The person means patrons or people commissioning such works.

      ***
      Jay Maisel is a fine artist? According to who? No art critic I know (and I know a helluva lot) would make that statement. But you’re free to make that claim, of course, that’s the American way in my book.

      • Anonymous

        While I applaud your defence of an artist the important issue here is not fair use for art but commercial use that violates copyright. 

        In his article Andy Baio lists 4 Factors that inform fair use:

        1. The purpose and character of your use: Was the material transformed into something new or copied verbatim? Also, was it for commercial or educational use?

        He goes on to refute all of the points except commercial use!

        On his site he uses a Creative Commons licence with  No Commercial Use.

        So the issue becomes is creating and selling an album art or a commercial venture?

        Now take a breath and step back, look at it from Mr Maisel’s point of view. Here is a commercial product on sale using his image on the cover. That is a clear copyright violation!

        All the other arguments as to whether Mr Maisel was to aggressive in pursuing the case or if the work was transformative or not and the fact that Andy Baio did not keep the profits do not matter in this case.

        As for the posters you made those qualify as fair use I think.      

      • Anonymous

        While I applaud your defence of an artist the important issue here is not fair use for art but commercial use that violates copyright. 

        In his article Andy Baio lists 4 Factors that inform fair use:

        1. The purpose and character of your use: Was the material transformed into something new or copied verbatim? Also, was it for commercial or educational use?

        He goes on to refute all of the points except commercial use!

        On his site he uses a Creative Commons licence with  No Commercial Use.

        So the issue becomes is creating and selling an album art or a commercial venture?

        Now take a breath and step back, look at it from Mr Maisel’s point of view. Here is a commercial product on sale using his image on the cover. That is a clear copyright violation!

        All the other arguments as to whether Mr Maisel was to aggressive in pursuing the case or if the work was transformative or not and the fact that Andy Baio did not keep the profits do not matter in this case.

        As for the posters you made those qualify as fair use I think.      

  • http://twitter.com/ErikVPhoto Erik Valind

    Why did Andy bother to license the music but stop at the photography?

    • http://kenyattacheese.net/ yatta

      read the frikkin article.

  • Anonymous

    Contrary to what you claim, Andy Baio is not an artist: in his own words he is “a writer and tech entrepreneur”. Nor is he poor:  he sold one of his projects, Upcoming.org, to Yahoo for millions of dollars in 2005.

    You also admit that you yourself are not an artist: simply wealthy enough to be able to employ some people to attack an artist’s home.

    Now tell us again how art wins.

  • Anonymous

    Not the first time Andy Baio has been caught pirating. He was sued formerly by a record company for hosting Beatles music.

    * Baio has long history of copyright theft & evading law. His own words: http://bit.ly/kGuakT  

    He’s hardly a penniless artist trying to scrape a living. He’s just a (relatively wealthy) freeloader.

    * Source Russian Photos on Twitter

    Andy Baio is a freetard, just like most of the other free-loading freetards here who can’t even make their own art.

    See: http://wp.me/p14Jdo-NB

    • http://pulse.yahoo.com/_Q7GWIIWLV7BCZHQFMQAC3IXRUQ Daniel Marquez

      Tom – Finally.. someone says it…  

    • Anonymous

      was pablo picasso famously said “minor artists borrow. great artists just steal.” and it was robert rauschenberg who got the great ruling which found that his collages were his own recombinant artworks. and warhol took many other artists works but added his very personal custom touches.

      my wife got her nikon high-end digital just a year ago and since has snapped some 10,000 photos. all good; many gallery… but amazingly enough, at least 100 are museum quality! she’s doing series like puddles, pigeons, manholes, cigarette butts, reflections in windows and cars, grafitti-walls and has tons of shots combining these elements.

      you sound bitter? 

  • http://twitter.com/E20Launderette Debs @E20Launderette

    This argument is stupid.

  • Anonymous

    hey, there’s this fellow named robert lederman here in NYC, founder in 1991 of ARTIST (artists response to illegal state tactics.) he’s been selling his art, not art to my taste, on the streets of this town since the 1960s in protest of the insidious gallery scene. i used to terrificaly admire robert… but as rad as he acted, he turned on me when he thought my arts projects and stance too dangerous, ‘could get myself and all my connections busted as ‘terrorists’ as i wanted to do an event on wall street with a large but fake guilotine for eh ‘let them eat cake crowd’ to ponder.

    then i ran into an old buddy and colleague of his with whom he had worked for years, another street artist of higher qualities we came to call ‘hippie bob’ when we were forced to sell our art in the economy of 2002. indeed, he and robert successfully defeated rudy ghouliani and his top cop for some millions in a settlement over years of criminal harassments. he felt shorted in his share of that settlement. he now says “robert doesn’t have friends – he has followers!’

    still and all, lederman’s fought the good fight and every time the council passes another contemptuous unconstitutional law banning sale of art on street… he beats em every time. he has a thousand such ‘followers.’ he’s got a group at yahoo if you want to correspond. do tell him it was i info’d yall.

  • Anonymous

    my wife amy, taking photographs by the thousand in past year, has several times been approached by shop-owners, security guards, even coppers and told that she cannot take photos on the sidewalks of our town! tell that to the millions of snapping tourists. tell that to the 1st amendment! we were pretty sure but checked with a lawyer just to be certain… it is entirely illegal for anyone to deny this right. next time, we sue for big bucks and finally make some money fro art!

  • http://pulse.yahoo.com/_J64KM6COQ5ZMYRDTYRSPB4JW3E MarlonD

    If Andy Baio didn’t care enough about his work to go to court to defend it, why should anybody else? 

    Standing up to a legal battle and seeing it through is brave as well as morally just. Contributing money to that legal battle would be morally just. He could have raised awareness on this issue and possibly set a precedent or at the very least created bad press for Meisel.  Let’s face it, he copped out and admitted fault by settling this out of the courts.Putting up posters is lame, cowardly hipster sulking. This will have no effect on anything.

  • Barry Maslow

    I hope Mr. Maisel WINS his case…Fair use?! BULLSHIT…That is a VERY iconic image that is known by even those who know nothing of jazz (plus all the phonies who SAY they love jazz yet only have a CD of Kind Of Blue)…ALL ART IS NOT THEFT, but theft is the FOUNDATION of the trash put out by talentless punks who need to sample and steal to produce anything…There’s no technique, no practice, no SACRIFICE. We are SURROUNDED by mediocrity in this “user-generated” digital-piracy age…

  • http://twitter.com/dazlington Darren Palmer

    Calm down there Barry. Take a seat. Have a cup of tea.

    Surely what is important here is that it just wasn’t necessary. No damage was being done to Maisel. He didn’t need to sue. He hasn’t won some great victory for artists. It was a vindictive and pointless act, and I find that a terrible shame.

  • http://www.facebook.com/profile.php?id=100000013742481 Glenn Marsh

    The writer of this article did not present this story in an objective or factually correct manor.  Andy is a multi-millionair who took someone else’s work without permission.  He got what he deserved and Jay’s(a real artist/photographer’s) reputation and name is being trashed for protecting what is his. Mobs are now harrassing this 80 year old man all over the internet and at his home. All of this is happening because some asshole thinks it is ok to take someones art without permission. Bloggers without brains facts or credibility are allowed to voice thier version of reality and then idiots act on it. This kind of behavior and thinking is wrong. Where has common sense and decency gone?

  • http://www.facebook.com/profile.php?id=100000472418942 Channah Nancy Cook Pastorius

    It was a copyright violation whether it was hand drawn or pixelated. It
    was taken directly from a work holding a copyright. It’s fair use to
    draw from a work holding a copyright if you are doing so for your own
    pleasure or practice or using it as for teaching purposes. But, this was
    not the case. Take your own photos and come up with your own ideas. We
    are artists and are supposed to be creative. So create your own work and
    leave the work of others alone unless you get permission to use it. Why
    would someone be so hot to redo the artwork of someone else except for
    learning something to enhance your own artistic abilities. Is it such a horrid thing to expect artists to show their own work? Why is that so hard? Appropriation is a tightrope that is a tricky one to walk and one best be prepared before attempting such a feat. Koon’s appropriations make a statement on our culture. Warhol’s appropriations made a statement on our love affair with media and everyday items many have in their homes. But, in the case of the previously mentioned artists, they took an everyday item and turned it into something else. Warhol was sued over his poppies but there was an undisclosed settlement and he continued to use them. Honestly, I haven’t kept up with Koon’s or his legal woes as I’m not really a fan to be interested in going beyond viewing his work and leaving it at that. If you want to use the image created by someone else, get permission from the artist or photographer and you’ll be covered. If you want to be earth shaking with appropriation, do it when you can afford the attorneys to fight it for you. This guy has received more attention than his work warrants from his actions.

  • http://www.facebook.com/profile.php?id=37601182 Mark A. Sperry

    People are arguing about whether or not this was fair use.  Well  JUDGE, not Meisel or Andy, decided this was not.  I’m PRETTY SURE judges understand fair use better than most commenters here.  

    You really can’t just copy a commercial photographers work without asking.  Andy asked about the music, and got permission, so he should have asked about the picture too.  He made the mistake, and people who actually need to EARN A LIVING on their work will tell you what to do with your appropriation arguments.  Meisel is an 80 year old success story who is just protecting his legacy.  Andy made a mistake and (Andy is kind of a millionaire too btw) had to pay for it. 

    In freaking middle school you learn not to copy other people’s work.  He should have known better.  I don’t feel bad for him AT ALL.

  • Anonymous

    First, Andy has a history of misappropriating artist’s work – The Beatles, Bill Cosby – publicizing that abuse and benefiting from that PR. Second, he is selling, was selling the album using Jay’s picture. That’s a commercial use. Note the paypal button. This has nothing to do with fair use. Although Andy himself points out fair use is murky law, so why did he not reach out and ask Jay if he could use it? Because actually he did call Jay and when he was asked what the usage was he begged off and declined to explain. Then he went ahead and used it anyway. And then he got worldwide media coverage – TV, cable news, nightly news, print, tons of websites about the Kind of Bloop project and kickstarter- all with Jay’s picture. Kind of seems like a smart grass roots advertising/ marketing campaign for his new start up, without having to pay for all the content. Therefore a massive commercial use, worlwide, which would have cost hundreds of thousands had he gone through an ad agency and paid fair trade value. He paid for music rights but blew off the photographer. So I guess he figured whatever legal costs would be affordable. And since he makes 5% off any donations to Kickstarter this 32K settlement is a relatively small business expense, a write off. Andy is worth millions and millions thanks to selling his company to Yahoo in 2005. By his own admission he’s not an artist, he paid someone else to do the work. Hrag, you seem like a smart guy. Yet you made a serious mistake here. You have added to the serious defamation of one of our greatest living photographers. You jumped onto the wave of uneducated mob madness without knowing all the facts. You’ve paid someone to commit vandalism. This is pretty shameful and sad. Do you or any of Jay’s critics know how hard it is to make a living from photography? Our rights are protected by the US Constitution and we are all donating images all the time to non-profits and educational institutions,etc, as Jay is. Should we rewrite the constitution? He is a generous teacher and pioneering fighter for photographer’s rights. Why should he not be compensated by a millionaire who is making money off Jay’s work? The whole debate is crazy and pointless. Or would you guys prefer artists just give up all their labor for free instead of feeding our families? I think you should apologize and move on. We all make mistakes. And sorry if this comes off kind of strong but the vitriol and abuse that has been showered on Jay is just sickening, disgusting and impossible to understand other than the madness of mobs.

    • http://twitter.com/mukeshwani Mukesh Wani

      wasn’t he doing this for a non-profit as charity work and was not making a single penny in profile?

      • http://www.facebook.com/people/Steven-Keirstead/754075529 Steven Keirstead

        It was still a commercial use even if Baio made no money on the project. Under the law, copyright infringement can occur even if no money is made. So if a non-profit made an album with licensed covers of Beatles songs and unlicensed artwork derived from an original Beatles album cover, then gave them away as a free self-promotion, that would also be a violation of the photographer who owned the copyright.

  • http://www.facebook.com/people/Steven-Keirstead/754075529 Steven Keirstead

    Vigillante vandalism is a totally uncivil sort of crime. It is a violation of art and architecture and personal property. Shame on you Hrag Vartanian, you are a confessed criminal vandal.

    Jay Maisel did not deserve to be victimized by Andy Baio, but at least that was just a civil violation of his rights. Defacing Maisel’s building was a crime, and everyone involved should be prosecuted. You re-victimized Maisel in an egregious and inexcusable way, without advancing any sort of artistic rights in the process. If you are convicted, I hope the judge makes you do community service. You should have to remove your posters and wash all the all the other graffiti off Maisel’s building too.

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