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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:
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.
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