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Kind of Sued

Andy Baio: 'Original photo © Jay Maisel. Low-resolution images used for critical commentary qualifies as fair use. (Usually! Sometimes!)' [Detail]

In 2009, Andy Baio - a writer and entrepreneur who helped build Kickstarter - ate his own dog food and launched a Kickstarter project called Kind of Bloop. The idea was elegant, and one we immediately fell in love with. As Mr Baio put it:

What would the pioneers of jazz sound like on a Nintendo Entertainment System? Coltrane on a C-64? Mingus on Amiga? For years, I’ve wondered what ‘chiptune jazz’ would sound like, but there are only a tiny handful of jazz covers ever made.

To satisfy my curiosity – and commemorate the 50th anniversary of Miles Davis’s ‘Kind of Blue’ – I’ve asked five brilliant chiptune musicians to collaborate and reinvent the entire album in the 8-bit sound.

The resulting album - which we backed at the time - was worth every penny cent. Baio commissioned five chiptune musicians to collaborate and reinvent the entire album in 8-Bit sound, resulting in an oddly perfect blend of the old and the new, fifties melodies meets eighties sound cards.

Needless to say, this fine ensemble, needed to be packaged in an appropriate manner, and - attentive to detail as ever - Baio commissioned some wonderful cover art, crafted pixel-by-painstaking-pixel by pixel- and rough-taco lover SnackAdmiral. Every step of the way, Baio worked hard to ensure everything was above board and legal, as he puts it:

I went out of my way to make sure the entire project was above board, licensing all the cover songs from Miles Davis’s publisher and giving the total profits from the Kickstarter fundraiser to the five musicians that participated.

However, the one thing that Baio overlooked, which he never thought would be an issue, was the cover art… Fast forward to 2010, Baio was threatened with a lawsuit over the pixel art cover.

In February 2010, Baio was contacted by lawyers representing Jay Maisel, the noted New York photographer who took the original photograph 1 that inspired SnackAdmiral’s pixel art version 2. In their demand letter, they alleged that Baio had infringed Maisel’s copyright.

As compensation they sought: “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.”


Seven, doubtless nerve-wracking, months later, Baio chose to settle out of court. A creative project, for which he had raised just $8,647 (considerably above his Kickstarter goal of $2,000) in the end cost him $32,500 of his family’s hard-earned savings.

Despite his firm belief that he was in the right - which he articulates at length in a reasoned piece titled Kind of Screwed - he was forced to reach an out of court settlement to draw the proceedings (and, no doubt, a great deal of heartache and uncertainty) to a close. As he puts it: “This ordeal was very nerve-wracking for me and my family, and I’ve had trouble writing about it publicly until now.”

Baio is at pains to point out that his settlement is not an admission of guilt, stating: “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.”

It’s a disappointing outcome to what – at the start – was a labour of love. One wonders what Maisel, who has been hounded so much since Baio published his piece that he has been forced to take down his Facebook page, thinks of the matter.

There’s no doubt the original image he took is iconic. As the cover of the word’s best-selling jazz album of all time it has doubtless been seen by millions. However, Maisel remains at heart a creative. An artist. This action - whether prompted by Maisel or his lawyers - sends a chilling shockwave through the creative community and one wonders how he might have felt, much earlier in his creative career, had he been threatened in an equivalent manner.

Baio states:

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. 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.

Surely this isn’t what copyright law is about? To be used as a blunt stick to stifle creativity. One wonders why a hugely respected photographer, who lives in a 72-Room New York Dream House valued at $35 million would feel the need to stifle a younger artist’s creativity in such a manner. Not least given the fact that Maisel’s biography celebrates his ‘giving’ nature, stating: “Since he stopped taking on commercial work in the late 90s, Maisel has focused on his personal work and developed a reputation as a giving and inspiring teacher….”

Giving. Taking.

We live in a remix culture. The web - in some of its finest moments - celebrates the re-imagining of the old in new ways. This culture, which lies aggressively at the heart of how we see ourselves in society today, should be encouraged, not stifled.

When Andy Baio embarked on his ‘Kind of Bloop’ project, it was to celebrate the music of one of the undisputed giants of twentieth century jazz, to bring his music to a wider audience and to celebrate creativity. It seems a pity that this celebration of creativity couldn’t extend equally towards the visual aspects of the project.

At the end of the day, the fact remains, Mr Baio has a $32,500 bill to pay. We can all do our part to preserve the realm of creative endeavour by supporting him. ‘Kind of Bloop’ is still available, albeit minus the cover art, and at just $5 it’s a steal. A mere 6,500 people who value culture and are prepared to pay a little to support it, will wipe the slate clean. We’d urge you to support Mr Baio by picking up a copy, you won’t regret it.

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