The following is my personal opinion. This post has been updated to reflect new information.

There’s always that terrifying moment when a large, seemingly peaceful gathering turns brutally ugly. In an instant, blood is drawn and you could easily be crushed by the swirling, pulsing chaos of what is now a mindless, violent mob. Sadly, we all know that inexplicable self-destructive stupidity is not limited to the streets, but can be witnessed quite often online. And it’s happening now, in an ignorant, misguided and ruthless attack on Jay Maisel.

The attacks were a reaction by the supporters of former Kickstarter board member and CTO Andy Baio after he posted his recent blog Kind of Screwed – giving his sad spin to the story of how he appropriated one of Jay’s most famous pictures, Miles Davis on the cover of the seminal album “Kind of Blue,” without permission for his own project called “Kind of Bloop,” got sued and settled for $32,000. Andy claimed it was Fair Use and fails to mention the fact that he was selling the album he created, and still is, through PayPal which is clearly a commercial use. Not exactly fair. And the image is clearly recognizable as Jay’s. This is the comparison as shown on Andy’s and other blogs:

Given that Andy describes in his post how confusing the murky mess of Fair Use with its contradictory precedents is, and how unfair this is to those who might get sued, it’s surprising he decided to risk getting sued and not ask permission. Even more surprising is that Andy did in fact call Jay’s studio to inquire about the image after he posted it in May of 2009. Jay’s studio manager at the time was unaware that Andy had already used the image and asked what he’d like to use it for and to send an email with details. Was it personal, commercial, did he want a fine art print for his wall or..? Andy responded that he was just interested in the picture. when asked again, he was vague. He said he just wanted to see it and would like to buy a print someday. He never called or emailed back. And then continued using the picture, fully aware that there might be usage rights to pay for a commercial use.

He also fails to mention that he used the project and Jay’s picture while generating tons of worldwide publicity for his project and Kickstarter, getting web sites worldwide, TV time and exposure on cable news, nightly news, print media and, all using Jay’s picture. The latter usage is important as Kickstarter gets 5% of all donations to projects on Kickstarter. To me it looks like a rather large grass roots ad campaign in support of a start-up company which as it grows stands to make millions of dollars for the founders, for Andy, either directly or a future exit. Then when you find out that Andy has a habit of using other artist’s work without permission––The Beatles, Bill Cosby–– and bragging about it on his blog you kind of start to smell a very clever, social media manipulating… you fill in the blank.

A key question Andy so far won’t answer is why he paid for the rights to use the music and not the photography for his project. This again to me looks like a calculation that it would be cheaper to defend against a photographer then the music label, since his past history indicates he has no respect in general for copyright. But it does look like a lack of respect for photographers in general, which is typical of all those needing our content. In the current economy photographers are really struggling so they look like easy prey.

There is one very interesting attacker who publicly admits to hiring someone to vandalize Jay’s building on his very incendiary and completely uninformed blog here: Breaking: Millionaire Extorts $$$ From Artist, Street Artists Strike Back It is interesting that since they can’t really criticize Jay for protecting his copyright they try to attack him for being successful.

What’s really crazy about this last blogger’s headline is that, A. Andy himself admits he is not an artist as he hired an artist to do the pixelization work, and B. Andy is worth millions and millions due to the sale of his start up to Yahoo in 2005. How does any of this make sense?

Facebook actually took Jay’s page down after it was deluged with vicious comments such as “hope you get colon cancer and die” and worse. Sickening and shameful. Makes you want to just move out to the wilderness and get off the grid.

Jay doesn’t need me to defend him, he’s led the master class for us all in how to fight for our rights. Nevertheless, it’s appalling to see such uneducated vitriol directed at one of my heroes. It is just crazy to me that someone would even think of infringing on Jay’s seminal image of one of the greatest jazz musicians of the 20th Century; a photograph that contributed to the iconography of Miles Davis and forever defined our visual memory of Davis’s masterpiece album Kind of Blue. Jay Maisel is one of our living treasures, a master photographer and pioneer. He has worked his ass off to get where he is today, and contributed more good will, more inspiration and joy through his trail-blazing photography, generous spirit and years of teaching, and beauty to our culture then can be measured over his stunning sixty-year career. Those who are casting aspersions and criticising Jay reveal a serious ignorance of the US Constitution, copyright law and the rights of artist’s to control their own work. Are you guys advocating rewriting the Constitution? Really?

I have nothing against photographers who use photography as a hobby and want to give their images away. They have income from their day jobs. But don’t try to take away my rights and how we make a living. Why would you want to tear down the professional community anyway? All of us share our expertise with up and coming and hobbyist photogs in workshops and give images to students, researchers, non profits and generally give back to the communty. It just makes no sense to me.

Because a lot of people grew up downloading, i.e., stealing, images and music part of the problem is we have a generation of who expect to get images for free and don’t really understand how copyright could in fact help them make a living. Another factor here is certainly the false class warfare angle.

Take a moment and imagine what it must be like to actually make a living from your photography. Or from any of the arts ––dance, painting, writing, music. I don’t mean posting pictures on Flickr and getting 50 bucks here and there when you are not out skateboarding, or playing in a band for another 30 bucks here and there, or whatever odd job you do to keep going when you are not borrowing money from your mom. Ouch sorry. I mean, imagine you spent years perfecting your craft and got so good at it through intense, hard work, year in and out, that you actually are able pay your bills and support your family. You actually buy food, clothing, and pay a mortgage through the value of your photographs. Imagine the responsiblity of providing for your family from your work, your photography, and competing with thousands upon thousands of other hungry photographers. Now imagine that every content user on the planet would really like to get your work for free if they could, to steal it and use it for commercial gain for as little money as possible. It is a constant battle to survive. It’s just hard to do, if not nearly impossible. You just can’t imagine how hard it really is unless you have done it. And once you’ve gone through the hell of making it, you will fight tooth and nail to protect what you’ve earned.

I’m sorry andy Baio felt he could act without the basic respectful act of reaching out to Jay without subterfuge. And from reading his blog, I get the feeling he’d be a great guy to have a beer with, smart and funny. He clearly knows what he is doing in social media and how to build value into a start-up. He professes a lot of noble ideals. Yet he pushes this agenda that maligns and abuses an artist of the first rank. He clearly values the intellectual property he himself has created and sold. Why be a hypocrite now? Disconnect.

These attacks on Jay Maisel by Andy Baio and his supporters are unfounded and reflect the ignorance in the truest sense of the uneducated, mindless mob mentality at play.

For such smart guys, this whole thing is kind of…stupid.

July 2011
This entry was posted in Field Notes & Essays and tagged , , , , , . Bookmark the permalink.


  1. Stella Kramer says:

    You’ve really hit the nail on the head, Doug. If he paid for the rights to the music, he should have contacted Jay at the start. He obviously knew about copyright, he just chose to ignore it when it came to photography. End of story.

  2. Jeff Singer says:

    Yeah, the part that baffled me the most was that he felt it necessary to license the music but not the photo. Why didn’t the photographer deserve the same respect?

    • Doug Menuez says:

      I think it was a strategic decision. He knew what he was doing.

    • Tape says:

      This has to do with the way music differs from a visual art, both in terms of copyright and, well, the way in which it exists.

      With a visual image, it’s much easier to distinguish. To use an existing image… you use the image.

      With music, there are different ways to use an existing work. You could use the original recording, you could use the original song (chord changes, melody, lyrics, etc.) but re-record it yourself, or you could take any one of those chord/melody/lyric parts and modify the other parts. Copyright law for music reflects these possibilities. There are different types of royalties to reflect these possibilities: “mechanical” royalties for reproducing the original recording, “performance” royalties for re-recording it yourself or playing it live in public, and so on.

      Also different is the topic of permission or license. In the musical realm, it is NOT necessary to gain permission before performing, recording or releasing a song written by someone else. So, in reference to “Kind of Bloop”, this could have been released without previously licensing the use of the written song. Agreeing beforehand and writing up a contract that says “in exchange for payment of $X, we allow use of this song as written” is certainly easier than releasing the album and then finding out later how much the writer/publisher/whoever receives the performance royalties is going to get. However, even if Andy asked about using the songs for this cover album and the rightsholder said “no, we don’t want you to do that”, he can still legally use the song in that way and just pay the standard performance royalty rate, and no one can say boo about it.

      As for the cover art… copyrights for visual arts don’t work like that. There is no concept of “performance royalties” because you can’t separate out the “performance” aspect of a painting or photograph like you can with a song – a painting, photo, or sculpture is a finished, unchanging piece. There also isn’t the same permission concept, in that you can’t just go ahead and use a visual piece and pay the “standard rate” because that mechanism doesn’t exist in visual art (again, because the “performance” aspect doesn’t exist in visual art). Andy proceeded in a manner for his album that he thought was a noninfringing fair use and Jay, the copyright holder, disagreed with that assessment and sued. If the cover art were a song, Andy could have done what he did and just paid some kind of “performance” royalty fee, because I see the parallel in “covering” someone else’s song and this album cover “covering” the original photo. But again, that’s the difference in visual and musical copyright.

      • Doug Menuez says:

        This is very helpful overview of how music rights work. (Also ee my response above re: music copyrights and US tax law.) But your simple statement that Andy and Jay disagreed is not a good summary of the case in my opinion. I think Andy knew full well he was infringing and just hoped for the best. And by putting his album for sale etc. it really looks like commercial use if ever there was one. I seriously doubt any judge would believe the Bloop art transformed Jay’s image. It’s so recognizable. But I understand many will disagree. It’s a question of intent and operating with transparency. And then there is the question of why Andy wanted to inflame the mob against Jay? To what purpose? He got his publicity big time, made money on his album, and Kickstarter is a huge success.

  3. doug…thank you for taking the time to post this article – its utterly amazing that this stuff still keeps happening “fair use” “orphan works” “no commercial value” – i wasnt aware of the back and forth and am pleased to read that Jay was victorious in brining suit against this individual…discovered the article via allegra wilde

    best to you and yours doug….r

  4. Will Foster says:

    I guess the haters think that the justice system failed in this case?
    These are the same people that were graded poorly in school because their “works cited” was lacking.

  5. Doug,

    You have done a masterful job of making the reasonable case for artists rights. Jay is in a class of his own as an image creator, educator and business man. He deserves only our respect and gratitude.


  6. sean kernan says:

    It sometimes seems that a kind of anger exists in some people (perhaps in some degree in everyone), a discrete entity that lives off its host like a fungus, and it looks for a hook to hang itself on out in the world. It is High Emotion, and thus stirs up a kind of energy that, say, meth does. (In fact there may be some connection between anger and the brains reaction to drugs.)
    Maybe we can take some satisfaction in the understanding that this emotion does most harm to those it springs from. Though exposure to ugliness is unpleasant, i think Jay will do fine. And there are lots of things for us all to learn from this.

    • Doug Menuez says:

      Thank you so much for the note of calm sanity. Very, very good point and worth being reminded of, and something I am very aware of as I do get a bit worked up. I did take all the “fucks” out of my rant though…hope all is well Sean

  7. Having worked as a photographer in the music industry for years I really feel it’s high time the “arts” work together to stamp this out. Each group spends time and money defending themselves but in reality we are all in it together and it can only serve us all to stand together. Music, movies, art. It’s all the same the creator needs to be protected. It’s no different then robbing a bank.

    Thanks for the great article.


    • Doug Menuez says:

      Yet we are being divided. Interesting side note: Some powerful, famous musician with an extremely valuable catalog got congress to insert an exemption for music copyrights into the US Tax code. I recently read it in it’s entirety. That means musicians who sell their music copyrights can claim reduced 15% capital gains tax rate, while photographers who sell their archive, or painters, writers, etc, must pay the full 50% capital gains tax. So we do have different concerns in that respect. It pays to have powerful friends in congress it seems. I’ll let you guess who the musicians were.

    • Spot on David (and Doug of course) – with a mindless thug based mass of society, all artists need to not just stand together, but fight together. Wouldn’t it have been great for the music company to have backed up the photographer who helped to promote their artist ! ?
      What scares me more than any damage of intellectual property, is the fact we are surrounded by such pure evil idiots, who can’t actually use logic, sense or justice in any form. They can only function on aggression, very scary.

  8. Rob Prideaux says:

    “Another factor here is certainly the false class warfare angle.”

    I was posting on Jay’s Facebook page, before it got deleted, and Andy Baio’s supporters really seemed to believe that this was some sort of David and Goliath situation. That’s pretty baffling – if they’re his fans, do they not know about and Kickstarter? It makes me think they’re being disingenuous, or perhaps it’s that they’re not really fans of Andy’s, but rather kind of anti-copyright mercenaries, who will take up anybody’s cause, if it seems to match theirs.

    • Doug Menuez says:

      Agree, there is something very confusing here. But it looks like people were incensed by the perception of Jay as coming down hard on the poor artist. But the facts are quite different. More likely fed misinformation they believed then disingenuous. While we can all disagree on what Fair Use is and the benefits to culture of copyright, there is no benefit to vitriolic attack based on bad information.

  9. Scott Smith says:

    Well said, Mr. Menuez. Well said.

  10. Andy Levin says:

    The difference between photographers and musicians is that musicians have ASCAP to police over these issues and photographers have ASMP. If Baio is destitute the judgement is uncollectible anyway…..

  11. Frank Meo says:

    This is what the artist Richard Prince has been doing for years, the appropriation of someone else’s creative property. It simply is not fair.

  12. Michael R says:

    Well written, Doug!

  13. jason grow says:

    Thanks for posting the story Doug.

    When did the definition of “fair use” become, “I think it’s fair if I use it without paying for it.”?

    I agree with Doug’s assessment that Baio was taking a calculated risk in paying for the music and not the image — the music industry is an absolute pitbull on stolen music whereas photographers generally (though clearly not in Jay’s case) are poorly equipped both in preparation (registering their work) and execution (actually following through and suing) for protecting their work.

  14. Cynthia says:

    Whether Andy Baio set out to willfully infringe Jay Maisel is impossible for outside observers to know.

    However, it seems clear that Baio’s decision to now falsely portray himself as the bullied victim of “unfair” copyright law is willful, informed and strategic. This has become a manipulative stunt to sanction the public attack of creators as “rightshoarding copyright owners” who only use copyright to suppress “artists” (remixers and appropriators). There is a complete and deliberate omission of a creator’s exclusive rights by Baio and his supporters.

    I have been appalled at the dangerous level this has reached. Jay Maisel, his family, his home, his workplace and the archive of his life’s work have all been directly threatened, complete with online exhortations to “go there” and “you know what to do” – with maps. I’ve read calls to find all of Maisel’s works, deface them, and distribute them widely “so he will not be able to control his works.” They exulted when Maisel’s Facebook page came down. They were frustrated they couldn’t crash his website and I read comments calling for “Lulzsec to take him out.” His good name has been libeled repeatedly.

    This is inexcusable. This could never be justified as principled protest over alleged copyright law misuse, and I am grateful that professional photographers are exposing this masquerade for what it is. Perhaps this is the inevitable sequelae to spoiled, downloading kids becoming adults and continuing their entitlement tantrums. But, it has moved to a new level and creators need to be aware. The mob – which largely cowers behind anonymity – is being manipulated into breaking the law, and schooled to be righteously outraged and take revenge when they suffer the consequences of infringing.

    Baio’s alleged “censorship” and “artistic suppression” by Maisel is being positioned as an example to push a platform for compulsory licensing of visual works. Don’t think you have heard the last of it from Baio. Follow his Twitter feed and read him lamenting the inaccessibility of visual works for his unfettered use. He also laments Maisel’s unwillingness to engage the internet mob with his “position” as if Maisel should. Maisel is not playing his role to elevate Andy’s internet outlaw status.

    Baio is a typical copyright reform activist: he believes that he (or the public at large) should be able to use and/or profit from creators’ works as he pleases and creators shouldn’t be able to stop him. He is firmly in the camp that tries to portray any unauthorized use as fair use, claiming “a special kind of discrimination against amateur creators on the Internet”.

    He participates in, and promotes, “civil disobedience” by hosting copyrighted content that has been ordered to be removed from other sites, including the controversial Danger Mouse’s The Grey Album ( He famously stepped into another copyright dispute to publicly torment and harass Bill Cosby (, gaining publicity with a NY Times interview for his efforts.

    Read Baio’s online bio at the SWSX Conference just this past March, 2011 (

    “Andy Baio is a Project Director at Expert Labs, a nonprofit working on improving government by tapping into collective knowledge on social networks. Previously, he was CTO of Kickstarter, the largest funding platform for creative projects in the world, and created, the collaborative events calendar acquired by Yahoo! in 2005. Original reporting on his blog has been featured in the New York Times, Wired, NPR, Newsweek, and MSNBC. He’s received legal threats from The Beatles, Disney, and Bill Cosby and framed each one.

    Baio gets a charge out of harassing copyright owners. He frames his trophies. Now, apparently he gets a charge out of harassing esteemed creators. And, he seems to get a charge out of being a hero to new generation of indoctrinated, propagandized kids who hate copyright out of blinding ignorance. He knew he was throwing an internet bomb when he posted his story about his settlement with Maisel. When queried through Twitter about why he disabled comments on that post Baio responded it was about “liability.”

    So, heads-up everyone. As of November 2010, Andy Baio joined the team at Expert Labs as “Director of Hacks” (

    What does Expert Labs do?
    “Every day, millions of ordinary people ask questions on social networks like Facebook and Twitter and get back good ideas from their friends and family and coworkers, and all the other experts that surround them. It helps them make better decisions.
    But if regular people can tap into the wisdom of a network using these simple, powerful tools, why can’t the people who make our laws and government policy do the same thing? We think that they should have that power. And at Expert Labs, that’s exactly what we make possible.”

    For the past two weeks we have witnessed an amazing deliberate manipulation of the online free culture mob by Baio, Peterson/Hawk, Cory Doctorow and countless others through blatant mischaracterizations. How long will it be before we see anti-copyright activists like Baio use Expert Labs to gather data following Expert’s Labs three steps (
    1. work with policy makers and lawmakers in government to help identify the [copyright reform] questions they need answered.
    2. work with technologists and developers to build tools that gather those [predetermined] answers on [biased and manipulated] social networks
    3. and encourage the [select online communities, and excluding the rightsholders’ communities] to share their expertise by answering the questions that government has [that Expert Labs identified as questions the gov’t need answered, see step 1]

    Time will tell if my speculation proves accurate.

    Thank you to Jay Maisel. When Jay Maisel defended his work he defended copyright principles for all creators.

    And, thank you to all the creators who have had the courage to stand up for Maisel during this attack, and expose the truth.

    This isn’t the first time creators have been slandered, libeled and persecuted for enforcing their rights. It’s part of the new strategy in copyright wars by those who would strip away exclusive rights for their gain. It is important we stand up for our rights, and for each other.

    • Doug Menuez says:

      Thank you Cynthia for this very sharp, very clear outline of the issues at hand. I read it as a manifesto for action in defense of artist’s rights, but also the rights of the individual.

  15. dusanmal says:

    Both sides of this problem seem to attract zealous defense and truth is quite in the middle if we strictly follow historical precedent both in Art Community and in Legal Community.
    First, where Mr Baio went very wrong: He didn’t ask for permission. Further on I’ll show that he didn’t need permission (as far as historical precedent goes) but still – if you do this type of satirical work it is your moral duty to ask original author. Also it is so simple to ask… Common sense.
    Second: Historical precedent by well known example: Painter Roy Lichtenstein. Very famous (and profitable). Key part of his work was literal enlargement (dot-for-dot) of comic strip art frames produced BY OTHERS. Both Law and Art community have had their word on the subject. Art Community accepted it as new and original(!) art with transformative value. Law community found it OK to (highly) profit from these works without comic strip artists permission or compensation. In part because of the Art community decision that what have been made is new and transformative.
    For “Robin Hoods” out there in support of Mr Baio, Mr Lichtenstein and affected comic artists wealth situation was in exact opposite state: “stealing” (by modern definition) have been done by the rich and famous against struggling “original art” creators. Hence, nothing here to do with wealth issue.

    What should be the lesson? First that modern interpretation of copyright have gone mad and some common sense must be hammered into it by the Art Community for the Art Community sake. Art by very definition is not simple product like TV or cell-phone. Wake up to that fact. Fair use for satirical interpretation must be given. That is how Art have been living and growing for millenia. Sticking to “I only create for profit” directly negates your status as the Artist and harms growth and development of your own field.
    Second, for those who express themselves through such satirical/transformative/… works – good … BUT – take responsibility and common sense and some basic morals. Ask for permission. Give credit to the author of the original you have used in name at least if not in profits.
    Third, I heard on this issue from many famous photographers and quite a few stated that they wouldn’t have given permission even if asked (and that they did so in the past when asked) – because they only work for profit. If so, please renounce yourself as an artist and declare yourself as mass-manufacturer. Instead, better way is – realize what the Art is and how does it grow and if politely asked let transformative artists (particularly emerging ones) use you as the shoulders to stand on.

  16. Katherine Hennessy says:

    Interesting thoughts and perspective Doug and the comments continue to intrigue. The conversation is massively important for education and understanding. Education is imperative. Fair Use could have been as simple as just asking permission, acknowledgment of what was created before. Common sense could have been very useful.

    • Doug Menuez says:

      I’m also not against fair use per se, but given how vague it is I feel that the best policy is going to be a lot of communication before hand between the parties. But just because some people believe copyright law is too heavy and fair use should be easier to apply, doesn’t mean we should weaken copyright laws. They work well overall and I see no viable alternative.

    • Doug Menuez says:

      Totally agree.

  17. Thank you for posting this, Doug, and for cutting through all the misinformation and (worse) disinformation out there.

    • Doug Menuez says:

      You are welcome. There are still facts to come that we don’t know yet, but I think the most important thing is to stop the mindless attacks and create a better atmosphere for honest debate on the issues.

  18. Patrick Downs says:

    There seems to be little difference between Andy Baio and other narcissistic pathological or compulsive criminals, crooks, and terrorists like hackers, embezzlers, identity thieves, corporate raiders etc. Their belief: What’s mine is mine and what’s yours is mine. I am more important than you, and I am above the law, and will push the envelope at will. Our culture even celebrates this in some quarters, which is a deadly virus to civilization. This is nothing about creativity: truly creative people don’t nakedly appropriate others’works in whole or great measure, try to disguise it with a new veneer, put their measly signature on it, and then call it theirs. They are phonies.

    • Doug Menuez says:

      Hey Pat, I agree, our culture seems fascinated with nasty shit. And I personally would never contemplate using someone else’s work as the basis for something of mine. However we can’t forget the lessons of Picasso who believed in stealing from the best and making it his own (paraphrase) but with an emphasis on radically making something new from his inspiration. And all the jazz greats of bebop who incorporated phrases from other songs into new compositions, and on and on. Artists do inspire other artists. That’s an important element in the creative process. And this is so subjective that it’s hard to know where to draw the line. Yet in my humble opinion, this case shows up as a bright line we can see clearly. And it’s an abuse. So I would think it is case by case and the question is when do artist’s exploit other artists (or in this case, business men exploiting artists) to their own financial gain? This is only partly resolved by our legal system, the rest is ethical and wow, there you have the problem.

  19. Chris Castle says:

    Cynthia raises an important point that I would extend–what happened to Jay should be investigated by the NYPD and by DHS for different reasons. By NYPD because it has all the earmarks of a “wilding” with all that implies. If those standing on the street were yelling “attaboy” while Jay’s home was attacked, should they be any less guilty because they did it online? And since when does a government contractor (Expert Labs) get away with this kind of behavior and still get his snout in the public trough? All the while invoking the name of the White House?

    It seems clear to me that he either didn’t get permission because he strongly suspected it would not be given at all or because he had the same reason that many have in provoking artists–publicity.

    I would not be too sanguine about his compulsory mechanical license though–remember, the 115 license is conditioned upon the requirement that “the arrangement shall not change the basic melody or fundamental character of the work”. I don’t know about the rights holder, but I don’t think that Baio meets that condition.

  20. Pingback: Jay Maisel Defends His Copyright And Is Attacked For It Online

  21. Doug,

    Excellent blog post. Thank you.

    Much appreciation to Jay for his decades of creating iconic images and his willingness to defend his/our copyright.

    The assault on Jay’s home, where he and his family live, is dastardly.

  22. Cameron Davidson says:

    Thank you Doug. Excellent piece. Jay did not deserve to be treated this way.

  23. chris weeks says:

    it’s funny … i’ve only read items on the web written by people who have NEVER made money from their work.

    when i read that they defaced jay’s house i couldn’t believe it.

    anyway … this post addresses this matter perfectly, man!

  24. Dan Routh says:

    Doug, down here in the South we just say “Amen” and thank you.

  25. mike says:

    to argue that the pixelated image is not transformative is unreasonable. there is no difference (in act) between the hand-crafted interpretation of the Maisel image and a painted interpretation of water lilies by Monet. in both cases the observed subject is transformed to a medium with specific constraints (purposely low resolution pixelation vs particular paint brush technique), which in themselves make the work original.

    • Doug Menuez says:

      This reminds me of the long ago modified contract first offered by Continuum (Bill Gate’s first version of what became Corbis) to photographers. Bill originally wanted cheap or free imagery to display on his in home slide show screens he was building into his new house in Seattle. After the first contract was ripped to shreds in PDN and elsewhere they revised it so the photographer granted them “derivative” copyright. My attorney at the time said there was no such thing, copyright is copyright. When I asked about it, they responded that they scanned my film and that they had a special scanning process that “transformed” the image therefore they must share in the copyright. Yeah. Right. It was transforming my analog film alright, into bits, into pixels so they could display it exactly as it was supposed to look on a computer screen. Same picture. When challenged, they changed tack and said that indeed it was the same as regular copyright, but they had to have this in order to pursue infringements. Patently untrue of course. Eventually they admitted to me privately that they just pulled that concept out of their ass, that they were just trying to gain some toehold of control of the work. After enough photographers complained they pulled that language.

      If you have read a dozen or more judicial decisions on cases like this, you start to see a pattern where the judge looks for real transformation, both in terms of how the image is modified or interpreted, as well as the meaning and content. They look at details such as in this case the highlights on the forehead or other aspects. So much of the “bloop” version is immediately recognizable. But arguing this is not useful, only a judge could decide and Andy decided that he needed to settle, presumably because it was cheaper than fighting a case he thought he would lose. He certainly has the money to fight all the way if he wanted to. Yet he did not.

      • mike says:

        Doug, there is also Leibovitz v. Paramount Pictures Corp.

          • mike says:

            Rogers v. Koons is interesting.

            i wonder if Warhol licensed the cans.

          • Jamie Smith says:

            Hi Mike,

            Thought you might find this quote interesting:
            “I settled for one reason: this was the least expensive option available.”
            – Andy Baio, June 23, 2011 Kickstarter blog tittled, ‘Kind of Screwed’ (Yes, on the exact same day as Andy’s post, the writer used the exact same heading as for her blog, about Andy’s bolg).

            Sort of conflicts his other statements that he apologized for the confusion and only made a small commercial use by making (300) CDs, promoting it on the web for 7-8 months, selling downloads, and cross promoting a company he was the CTO for called…………..Kickstarter.

            One could probably argue that using a different cover, or seeking permission would have been less expensive and certainly less confusing…

            It isn’t like Kickstarter doesn’t have it’s own publicly stated © policy?


        • Jamie Smith says:

          Hi Mike,

          Some more of Andy’s own words from June 23, 2011:
          “The AP sued Shepard Fairey for basing his famous Obama Hope poster on a news photo. He faked evidence in the ongoing case, damaging his fair use defense, leading to an out of court settlement.”

          Also in the post, he said he didn’t go to court because of potential legal costs, but after two weeks of public silence, he surfaced on July 8, 2011: statements:here:

          In speaking of “Thomas Hawk” Baio says:

          “His repeated name-calling, leaps of logic, questionable grasp of copyright law, hostile attitude, and the repeated inaccurate (and irrelevant) references to each of our finances were frustrating. This isn’t a David vs. Goliath tale, and while that kind of reductionist thinking makes for a dramatic story, it doesn’t reflect reality.”

          So, Baio is saying now that he is upset that personal finances ever became an issue. And if it is not David vs. Goliath does that mean he could afford to defend his case in court?

          Hard to keep track of his story.

        • Ellis Vener says:

          That paramount’s defense was that what they created a parody and that parody is legitimate under the Fair Use clauses.

          Leibovitz lost the case.

    • Jamie Smith says:

      Hi Mike,
      If you feel strongly about your point, you might try to touch base with Andy Baio – who posted this explanation in his own words on Saturday, July 9, 2011:

      “Ben: Upon receiving their original demand letter, I immediately pulled all the artwork offline, apologized for the confusion, and explained the limited scope of the project and the fact that only 300 albums were produced. Their response was that “this apology does not unring the bell of your infringement,” and they offered a $75,000 settlement and reiterated their intent to file suit within ten days, so I was forced to hire a lawyer to handle the negotiations.

      Posted by: Andy Baio | Saturday, 09 July 2011 at 05:05 PM”

      He cited “confusion” and the scope of his project as the reasoning for the apology, but never mentions any transformative work or fair use argument. Is it your position that if Andy makes (300) copies it is a fair use, but if he had made more than (X) copies he would have needed a license?

      To Doug’s other point, I haven’t read anything where Andy himself has fully addressed his relationship with Kickstarter, or if/how he believes his former company has commercially benefited/suffered from the promotion of his project while he was also their Chief Technical Officer? Or even how Andy himself benefited/suffered – but that is assuming he was compensated for working for Kickstarter – maybe he worked for them for free?

      I tried to reach Andy for comment yesterday – there was no response, but he has been quoted on twitter citing “liability” as one possible reason for his silence… So why the July 9th, AND 10th posts? Again, you’ll have to check with him for an honest explanation.

      Finally, Andy’s recent posts suggest that Maisel compromised for half the original offer, and perhaps more importantly, less than 25% of what he would have recovered PER USE had he decided not to give Andy one steal of a deal.

      But was this about money or was there another reason Baio chose to use a copy of a registered image on his album cover with out seeking permission? If you read Andy’s own words from this weekend, you’ll notice some of his explanations changed after he hired lawyers to “handle the negotiations”.

      Take Care,

  26. Emily J says:

    Doug, why do you have a problem with “Kind of Bloop” still being for sale?

    There was a settlement, your hero photographer walked away with some cash and the image was replaced. Where’s the problem?

    • Doug Menuez says:

      Your question implies that everything worked out fine so i should be satisfied. But gee Mrs. Lincoln, how did you like the play? The unspoken implication is that you are supporting Andy’s position and that’s fine. Reasonable people can disagree. So I’m guessing you may not be fully aware of the heinous nature of what has gone on against Jay Maisel. Whether you agree with Jay’s position or not, no one deserves that kind of abuse. When they posted a map to his house and essentially urged the mob to go get him, it became truly terrifying. Imagine if it was you. If you think that mob mentality is ok, then we have nothing to discuss. This is not how we should be debating the merits of Fair Use or copyright law or the rest of it.

      My other problem is how this all got started––that almost a year after the settlement Andy writes his blog, followed by Mr. Peterson’s angry and personal attack, which lit up the shitstorm of vitriolic, vicious attacks on Jay. Those who then acted out should be taking a breath and thinking through their behavior. Verbal violence like this online is one thing, and it truly sucks, but when it translates into the real world that’s quite another.

      If you read my post, my questions are about motivation, intent and the true purpose behind Andy’s project and the way he handled this. And how his supporters seem unaware of some basic facts about Andy and his history. My problem is someone using someone else’s work to make money for themselves, either through direct sales of a product or through advertising/PR. He chose not to tell Jay’s studio that he had already used the photo without permission when he had the chance. Indeed, he should have tried to collaborate or ask permission first.


      • Jamie Smith says:

        Hi Emily,
        I feel Doug has raised many far more disturbing issues…

        But to your specific point: In Andy’s own words: “I immediately pulled all the artwork offline, apologized for the confusion, and explained the limited scope of the project and the fact that only 300 albums were produced.”

        With all the attention and increased album sales he is getting from his blog almost a year after settling, it sort of seems like the “limited scope” of the project has expanded, but I certainly have no problem with Andy making more and more money selling a music product he paid to license – I assume that is probably why he bought a license in the first place.

        Are you 100% certain “ALL” the art was taken down “IMMEDIATELY”? Yesterday I asked him to confirm some dates and information about that. He has yet to respond.

        I guess what I’m saying is I respect your position, based on the facts as you understand them, however, if you were presented with any evidence that does not support what you already believe, would you reconsider your position?

        If so, maybe we can together find common ground.

        For example, Andy is a Social Media Expert, he posted a blog, he then asked people not to be nasty about it. But the fact is, many people didn’t bother to listen to Andy’s request to be civil – they flat out ignored him and went after Jay with a bunch of anger that I can only assume was misguided and has more to do with their own personal issues…

        How do explain why people “fighting” for Andy completely ignored what he said?

        Take Care,

        • Emily J says:

          Jamie, I am not discussing the community reaction to this event. See my response to Doug above.

          As far as exploiting the settlement to the fullest extent, why not? Given lemons, make lemonade, right? From his position, he got screwed, so why not vent about it, especially since the lawyers from the other side agreed.

          • Jamie Smith says:

            Hi Emily,
            “Jamie, I am not discussing the community reaction to this event. See my response to Doug above.”

            My feeling is by “exploiting” the situation, there were some very real side effects – one of the most obvious was the community reaction, but if you disagree you’ll have to take it up with Baio – he felt they were dangerous enough to personally address them publicly AFTER his post: On his blog, on twitter, and on Mr. Maisel’s Facebook account.

            In fact after two weeks of public silence, Baio was compelled enough to address community reaction again (see the link I posted for Mike – Andy’s own words from Friday, July 8 , 2011).

            I agree with you that he may have had a right to exploit the situation, but your question if I understand correctly is “why not?”

            My answer: Because it sort of makes his apologies and pleas for civil conversation seem disingenuous. Also, his opinion becomes less relevant when nobody listens to his advice – which long term will weaken Andy’s standing as a expert in the Social Media field. Most people just flat out don’t appreciate hatred, Andy included – which is probably why he tried to control the community reaction. Which in turn, it is too bad that nobody valued his opinion enough to follow his advice, and that makes him even less relevant.

            You can make the argument that he is vindictive and did’t care about the community, but if wasn’t a concern/responsibility he felt, then why did he address it three different places the very same day as his own blog? OR if it was a legitimate concern of his, why was he silent for the two weeks between? I’m a non-Social Media Expert, but I’m not sure I saw Andy use the word “exploit” anywhere – he is probably smart enough to know better. Don’t forget, there have been many rumors that his commercial project was for “charity”, but even Andy knows that it would be a mistake to “exploit” that – don’t agree, ask him to name one charity who he donated the money to? Although, he did say he didn’t even pay his “talented artist friend” who actually made the copy of the album cover so maybe he does believe in exploiting other people for personal and financial gain?

            Anyhow, it sounds like Doug, you, and I all agree – he paid for a license to sell a musical product, he has every right to do so.

            The image on the other hand…oops, no license! And beyond the (300) CD covers, any idea how many uses, how long, where else he might have used the image for the 7-8 months before he “immediately” took down “all” of the art?

            I haven’t read anything confirming any lawyers “agreed” with Andy’s blog or his decision to post it, but he is however obviously entitled to speaking his mind. Most cases that settle neither party is allowed to say anything publicly, so I applaud Mr. Maisel and Andy for giving Andy the opportunity to say what ever he feels. But you are making an assumption that everyone “agreed” with what Baio said simply because they didn’t object to him saying it? If that were always the case we’d never have confessions, and people would never be allowed to expose themselves by simply making numerous contradicting statements.

            Think of it this way, if Andy is venting and all bent out of shape for being allowed to speak, just imagine how he would feel if all the lawyers decided nobody could say anything? He got his wish, it backfired, if you read what he said in the way of trying to stop people from reacting the way they did (both the day of his bolg, and then two weeks later) you’ll have my answer to your question: “As far as exploiting the settlement to the fullest extent, why not?” Because it came back to bite him.

            Then again, I can’t blame Andy for making an attempt to ask his followers to stop. After all, if a guy who lives in a brand new condo in Williamsburg was supporting me by saying things like:

            “I think there might be a place for people like us – who aren’t actually artists, but want to play a role in executing illegal work.”

            …I’d probably start to run a little damage control.

            Sorry you don’t wish to discuss the larger issue of community reaction – obviously you and Andy don’t agree on everything because that has been one of his main talking points since posting his blog almost three weeks ago.

            Take Care,

      • Emily J says:

        I do support Andy’s position, but that’s irrelevant to my point.

        My issue is that you appear unhappy that the album is “still” for sale. I’m not contesting any other of your points. The infringement matter, if there truly was one*, has been settled, both parties are free to go on as bound by their agreement. Once the artwork was changed why shouldn’t Andy continue selling the album?

        As far as motivation, that’s just conjecture. I honestly doubt that Andy created the album just to upset some photographer and then profit from it somehow.

        *We’ll never get to find out as there was no court opinion.

        • Doug Menuez says:

          Hi Emily, I have no problem with Andy continuing to sell the album at this stage without Jay’s image. My sense was that this new publicity helps sales so there is residual benefit to having infringed but I’ll get over it.

          • Jamie Smith says:

            Hi Emily,

            “I honestly doubt that Andy created the album just to upset some photographer and then profit from it somehow.”

            Agreed, he probably had other reasons too.

            Here is a little bit about Andy from May 9, 2011:

            “Andy Baio is a Project Director at Expert Labs, a nonprofit working on improving government by tapping into collective knowledge on social networks. Previously, he was CTO of Kickstarter, the largest funding platform for creative projects in the world, and created, the collaborative events calendar acquired by Yahoo! in 2005. He recently produced the first chiptune jazz album, Kind of Bloop: An 8-Bit Tribute to Miles Davis, and original reporting on his blog has been featured in the New York Times, Wired, NPR, Newsweek, and MSNBC. He’s received legal threats from The Beatles, Disney, and Bill Cosby and framed each one.”


            So I agree with you that it probably wasn’t “just” about having another legal letter to frame…

            Take Care,

  27. scollier says:

    Doug, thanks for your post. I too, have the same problem of “someone using someone else’s work to make money for themselves.” This is happening to me right now. And I, too, am fighting “tooth and nail to protect what I have earned.” It’s not personal, it’s business.

  28. Ed R says:

    it’s important to distinguish the originality of the work. for example, an image of a live event (essentially journalistic photography) exhibits no originality. any number of people standing near each other at the time of the event will capture nearly identical records of the event. because of this, the Fairey “Hope” poster suit by AP makes no sense. the photographer who made that image in no way contributed to the look, he simply documented what happened.

    now, compare that to product or fashion or art photography where the photographer plays an active role in the presentation of the articles they are photographing. very different, right?

    the “Bloop” cover is an original interpretation of the source image. the source image is a record of something that happened in a recording studio one day.

    it’s a shame this did not go to court, some interesting precedent would have been set regardless of how the judge ruled.

    • Jamie Smith says:

      Hi Ed,

      Your argument that Baio’s “Bloop” cover is an original interpretation of the source image” has a few problems, the most obvious of course are Andy Baio’s own words:

      1.) It is a catch 22 to be sure – If you go by what Baio said on July 9, 2011, about quoting himself back in 2010 and how he, “immediately pulled all the artwork offline, apologized for the confusion, and explained the limited scope of the project and the fact that only 300 albums were produced.” You’ll notice that he acknowledges that one of his first explanations was NOT about any interpretation, transformation, or fair use – it was that he decided to pull the work, apologize, and say it was for a small scale commercial project. He mentions nothing about how long he was using the image, or more importantly – how ELSE – as in on the Internet. Which do you believe has a wider audience – (300) CDs that were sold as a commercial product, or 24/7 available downloads over half a year on the WORLD WIDE Internetssssss?

      And the flip side: If you go by Andy Baio version ‘Kind of Screwed’ June 23, 2011, you’ll notice his story is about getting blind sided by a litigious photographer and an aggressive bunch of lawyers and how the entire time he had a friend make an original work that started selling way back in August/September of 2009.

      So which Andy Baio story do you believe? The one that says he never asked Jay for permission because he didn’t need it and his work was original, or the one that says he was approached about his mistake and then hired lawyers to “handle the negotiations.” If I were Andy, I certainly wouldn’t see any shame in not going to court and settling that puppy ASAP!

      2.) And Ed, I don’t think you just made any new friends in the photojournalism world. Good luck trying to tell James Nachtwey, or Chris Morris, or Ron Haviv, or David Turnley, or Tyler Hicks, or Antonin Kratocvil, or Susan Meiselas, or Jody Cobb, or Joel Meyerowitz, or Carolyn Cole, or Lyle Owerko, or Steve McCurry, or Alex Webb, or, or, or…even Doug Menuez for that matter (ha), that their work is to “SIMPLY DOCUMENT WHAT HAPPENED”???

      Doug, I love you, wish I had time to round that list of photojournalists off to the nearest million but I gotta’ go to bed before I die from laughing!

      Ed – take cover baby, I “simply” would have thought more about using those words to describe what photojournalists do for a living…


    • Doug Menuez says:

      “an image of a live event (essentially journalistic photography) exhibits no originality. any number of people standing near each other at the time of the event will capture nearly identical records of the event.”

      I’m sure you did not mean to insult or demean photojournalists. Perhaps you are jumping to this strange assumption after seeing one too many head shots from a politician’s press conference. There are times where what gets printed in various media seems similar and somewhat lacking in originality. But the publications are serving an informational role and editing the photographers material for more often for pure information rather than great compositional skill or technique. Although sometimes those two things coincide. The opposite of what you say is also true. On many of the photographers standing side by side you will find a wild range of very cool and different interpretations of the exact same scene. You are only seeing what the editors needed to show. You should work at a paper and see the film of the other shooters to really get what I’m saying. Later at the awards or in galleries you will see just how incredibly different one person’s eye can be.

      In general, and I’m not saying this about you, but I think with so many people now jumping into photography now without really learning the basic craft certain assumptions are being made by otherwise intelligent people. If everything is done for you with what is essentially a very costly chip-driven point and shoot– DSLR’s set on Auto exposure, auto focus, etc, — people are missing out on 90 percent of what is available to them. if they would take the time to learn they would be amazed, and daunted. It takes serious time to learn without all the auto stuff. But because these cameras deliver a reasonable level of success in terms of exposure, focus, whatever, people assume they are now photographers. I think this approach is great in the sense people are learning to see and getting encouraged to shoot. But there is a lot more to it than… meets the eye…ha

  29. ‘an image of a live event (essentially journalistic photography) exhibits no originality.’
    @ Ed: with all due respect, I’d have to say I disagree with that…. point/angle of view, choice of lens, depth of field, etc etc, not to mention post processing….

    • Doug Menuez says:

      Could not agree more, Thanks Rudolf for the observation…so many choices and decisions to be made by the shooter. F stop, shutter speed, and many other decisions of craft that add up to one person’s original interpretation. Even if the intent is to communicate an event as “objectively” as possible to the lowest common denominator reader – the reader of least sophisticated visual language- as is often the case in news photography, thus driving the shooter to compose and shoot in a simpler, more graphic way, by default that individual is making a whole lot of choices. There is no way it can be anything but original.

      • Ed says:

        Sorry Rudolf, Photoshop took that away. New lens technology will further erode the need to capture with precision at the right moment, for example Lytro, also Red with their new image capture devices that can record highly detailed images at the speed of video.

        • Jamie Smith says:

          Hi Ed,

          I wonder if Thomas Knowles would agree with your statement about photoshop?

          Is it the lens technology and capture device what determines the point of view/angle Rudolf mentioned, or is it that the photographer, who in your own words “in no way contributed to the look, he simply documented what happened”?

          New technology is constantly changing, and sometimes that is great, but I’m not convinced by your argument that it is an either or situation. One could just as easily say that “the photographer plays an active role in the presentation of the articles they are photographing”…but in that case, I’m just quoting what YOU yourself already said…

          I’m confused – the photographer is “simply there to document what happened” and the technology takes care of everything, or “the photographer plays an active role?”

          In your own personal work – do YOU photograph anything, or does your camera and lens technology just do the work for you? Is there a place I can go to see some examples of your work where your lens technology and capture device took your pictures for you? And if so, are those images your unique point of view, or just something the camera did on it’s own?

          Take Care,

          • Ed R says:

            Jamie, I said the photographer plays an active role in the creation of the image in a controlled environment, like a studio. Whereas in the wild, documenting events, the photographer is the observer, he cannot get the subject to move 10″ to the left so he could get some negative space into his image or what not.

            My point about lens technology was that focus, f-stop, exposure, etc at the time of image capture are becoming less important.

            I have done some work, event photography, I have no pretenses over the fact that the most important part of it was being there at the time that it happened rather than *me* being there. This is part of the reason why I don’t do it anymore, you can’t make much money off this when people think that anyone with a DSLR can do the job. That’s just how it is. Look up Sony PartyShot.

            As far as the photoshop point, I rarely bother correcting for white balance in the field, why bother? As long as exposure is close-enough, I can always fix the raw image in LR.

  30. Thanks Doug for the great post. Not just for speaking out again on why “rights” are so important but for relating it to and so clearly articulating what it takes to make a living in our industry, or any of the arts. Most people outside our industry don’t understand how hard it can be and how competitive it can get. So while I agree with you that Jay needs no defending thank you for doing so and demonstrating the power we have as photographers to band together and support one another.

  31. Chris Castle says:

    I suspect, and it’s just a guess, that the reason that no clearance was sought for the photograph might be that Baio was disappointed in the outcome of the Fairey case and may have been looking for a platform to make some law. There are some similarities in the “transformational” issues. But then I’ve heard EFF types argue that ripping a recording from a CD into mp3 is “transformational” for fair use purposes.

    • Jamie Smith says:

      Hi Chris,
      You raise an interesting point. Here is what Baio himself had to say about Fairy’s case on his June 23, 2011 blog, ‘Kind of Screwed.’

      “The AP sued Shepard Fairey for basing his famous Obama Hope poster on a news photo. He faked evidence in the ongoing case, damaging his fair use defense, leading to an out of court settlement.”


  32. Ellis Vener says:

    If you click on the relevant link to Mr. Petersen’s blog – — you now get the following message “ERROR 404 – NOT FOUND”

    • Jamie Smith says:

      Hi Ellis,

      According to his blog ‘Top 10 Tips on Google+ for Photographers”, dated July 12, 2011:

      “As a policy I no longer comment about anything copyright related, so please don’t ask about that here or on G+. I won’t answer any questions about it.”

      I would think most people, not just photographers, but ALL artists, graphic designers, web developers, musicians, painters, cartoonists, performers, writers – all individuals really, would love to know more about their copyrights in relation to Google+ – would have thought that might break the top ten…

      Maybe he should watch ‘Spinal Tap’ and consider making that that list go to EEEEEEleven….


  33. Ed, I’m not denying the power of Photoshop or (watch this space) Lytro. And yes the most important part is being there. But people are still going to capture slightly different moments / angles of view with different lenses / dof / shutter speed, sometimes accidentally – but sometimes by choice – regardless of increasing ability to change some of that in PP. And it’s only a limited number of types of ‘event’ in which a photographer is completely unable to get a subject to move/pose/interact, no?

    • Jamie Smith says:

      Hi Ed,

      Mind numbing, but certainly not an original attitude.

      You mentioned that you had done “some” event photography work. Do you make a living doing something else besides photography?

      From reading Doug’s original post, I believe he thoroughly addressed the issue of a saturated market full of hobbyists who are interested in learning, with the support and encouragement via workshops and on-line education opportunities, taught by open minded, generous, professional photographers/tech savvy instructors who give back to their communities, in the public’s interest to maintain a collaborative, involving, and lasting impact on the cultural development of our society.

      Personally, I believe such creative enthusiasm, interaction, and participation in ANY industry is good for both artistic expression and business development. I appreciate your concern and sympathize that the interest in photography is so great, that you yourself no longer get hired to shoot events anymore because “you can’t make much money off this when people think that anyone with a DSLR can do the job.”

      However, your personal point of view sounds like your decision is mostly financially motivated, and it is sad to see the economics of the situation are what has destroyed your artistic integrity.

      Anyway, is this original conversation only about YOU now? Or do you plan to answer my original question about which of Andy Baio’s many, many conflicting and unoriginal versions of HIS story you believe best makes your original argument that his use of someone else’s original, registered, copyright protected work was, in your opinion, an original interpretation of Jay Maisel’s work?

      And are you still disappointed Baio chose not to go to court to fight it because “a live event (essentially journalistic photography) exhibits no originality.” Keeping in mind, you yourself choose to no longer shoot events because there is no money in it for you.

      Although you might feel YOUR event photography work is totally pointless unless you are fairly and financially compensated, apparently business demand is strong enough that your old client(s) continue hiring/getting someone to photograph live events. Do you know if they are paying others the same or less money?

      But I can see for the sake of your sanity at least, it probably makes your life easier to assume that the reason you’re sitting at home fixing things in Photoshop is not because you can’t get those jobs anymore, not because they don’t pay, but rather because you don’t want them since anybody else or some new yet to be invented technology could do your job just as easily as you can’t… After all, exploring your vision for the future – pretty soon any uncontrolled environment will just let technology do it’s thing and photographers can just sit back home on the computer and relax instead of actively participating in the photographic process?

      I’m sure your decision to NOT shoot events has nothing to do with any lack of passionate approach your work, or how you stack up with your competition – which as you point out is sizeable in number, if not full of talented, hard working individuals.

      Original? If Baio isn’t making money off of using the work of artists you don’t think someone else would take his place? You think he is the first? Do you really believe his business strategy at Kickstarter was unique? Did you read his blog and all the examples he gave? Don’t you find it odd that almost a year after his settlement, now that he is emotionally comfortable talking about his experience in public, most of what he actually said was referencing a bunch of past fair use case studies? Did it take Andy a long time to emotionally recover, or do his research and fight back by writing about an issue that has publicly been on his agenda for years and is part of his stated mission? In May of 2011 his bio included the fact that he has framed every legal letter he got from other artists – what was so bad about Maisel’s that he was too shell-shocked to blog about it for nearly an entire year? I guess, home decor is a mater of personal taste in the U.S.A.

      Have you read any public apology from Baio to Maisel? Forget that he hasn’t put a new original post on his blog in over three weeks and consider the second sentence of Baio’s blog that says, “Despite my firm belief that I was legally in the right, I settled out of court to cut my losses.” Sounds like he too is financially motivated.

      Then July 8, 20011 he is publicly tired to distance himself from one of his biggest on-line supporters (“Hawk”), by saying, “repeated inaccurate (and irrelevant) references to each of our finances were frustrating.”

      Why would he cite finances in his blog on June 23, 2011, sit completely silent for two weeks while Maisel is attacked on-line and his home/studio is targeted, and then why speak publicly, three days in a row about how “frustrating” it was for him that irrelevant finances were ever an issue? And when you get that figured out, let me know why he still has that statement about his financial strategy at the top of his blog…

      Original? Ask people to collect money from their friends in support of their creative ideas, charge the people with the creative ideas a 5% fee in order to help get their projects up and running. Raising capital, manipulating public perception, and exploiting his own legal troubles are old business ideas – not exactly original or charity or non-profit work! I gotta’ hand it to him, I have read that he said KOB was for “fun” and a “labor of love”. But Andy is not like you – not everyone will give up on their passions simply because “you can’t make much money off this”… The good news for Andy is he is stubbornly sticking with it and in the end making money that, lots of it – plus, even two years latter, look at all the PR he is still getting? I could be wrong, it is possible Andy worked for Kickstarter for free? Hope not, because Ed, as we both know, it is hard to make a living doing a job people aren’t willing to pay you for – event photography included.

      I asked Kickstarter to comment on THEIR June 23, 2011 blog, strangely enough, the headline was ‘Kind of Screwed’ (yes, the exact same as Andy’s). Guess what their position was? Guess what their publicly stated copyright policies are?

      And, as of some of Baio’s strongest supporters point out, isn’t it an unoriginal idea and common practice where by a lawyer only charges his/her client if they successfully handle a law suit/legal settlement? Actually, the Kickstarter business model, in fairness seems very similar to that of some lawyers. But haven’t lawyers been around much longer than KS?

      I HAVE ZERO PROBLEM WITH KICKSTARER’S PUBLICLY STATED POLICIES, or the fact that the charge a fee for their product/service. I have supported the projects of friends using their services as recently as June 28, 2011 (As in AFTER Andy’s blog)…

      Who is not totally replaceable these days?

      An ER doc for example – anyone can use equipment to perform emergency surgeries in an uncontrolled environment where one has no idea if their next patient is going to be a gun shot victim, or a heart attack, or broken arm, or…?

      A writer for example – anyone has access to a computer or a pen and paper so who cares if one person or another invents a fictional story, or records a news event? It is still just going to be the same story, right? Some body else could have just as easily been there and done the work right? Why do people care about anything except what Baio and a “surprisingly” large number of his former co-workers (see also Gizmodo’s blog about Andy also on June 23, 2011) tech blogs have already posted about the facts? There couldn’t possibly be more information or any other point of view about the exact same situation, right? There is no way to move 10” to the left, right, up, or down right in an uncontrolled social media/news environment, right?

      And as far as the “shame” YOU are feeling because someone else’s problem didn’t go to court – Who would have been writing the legal opinion that you so desperately want? A judge is a human being or a technology? And a courtroom is a controlled or uncontrolled environment?

      If you DO want to see how readers of some of the same blogs reacted to recent COURT decisions on a similar issue:

      Then check out how readers on the same site treated the Baio/Maisel settlement just a few weeks later:

      Three weeks later, many of the Baio/Maisel blogs have cleaned up their act, removed posts, and started to back pedal, but I won’t go so far as to say I saw any retractions or apologies for misreporting… See for your self – notice any difference in the way they feel about Thierry Guetta (aka “Mr. Brainwash”) vs. Andy Baio?

      Here is another take by Amelia Brankov on the “Mr. Brainwash” COURT DECISION:

      Note this quote from “Banksy”:
      “[Mr. Brainwash] is a force of nature… and I don’t mean that in a good way” and “I always used to encourage everyone I met to make art . . . . I don’t really do that so much anymore.”

      Oh, remember the ‘Exit The Gift Shop’ NYC movie poster? Recognize the building in the background?

      Did you also see Doug’s discussion of Harg’s June 30, 2011 “Breaking News” blog:

      “I think there might be a place for people like us – who aren’t actually artists, but want to play a role in executing illegal work.”

      Which artist’s home/business did Harg have “fun” doing this to? To be ORIGINAL, he chose the same one as ETGS…

      Come to think of it, why was Baio completely and publicly silent for FIVE day’s BEFORE Harg’s “project”? AND, if Andy said on Twitter that “liability” was an issue for his public silence, how did he ever manage to gather the strength and courage to next speak publicly on July 8, 9, and 10, loooooooooong after the fact?

      Obviously Baio felt he had to distance himself from “Thomas Hawk’s” blogs (opinions) about the Baio/Maisel settlement. But also interesting that according to “Hawk’s” July 12, 2011 blog ‘Top 10 Tips on Google+ for Photographers”, he then said:
      “As a policy I no longer comment about anything copyright related, so please don’t ask about that here or on G+. I won’t answer any questions about it.”

      From what I understand, “Hawk” also doesn’t entirely make his living with his photography. He does however feel that copyrights aren’t even in the top ten tips for photographers on social media sites in the future? What about other visual medium artitists? Do they have anything at stake by not registering their original works? Come to think of it, I wonder if Baio ever tired to register his KOB album cover art? I mean, if it is original, wouldn’t he want to protect it? If he wanted to share it for free, it is good to know he at least has the option to decide with out someone using it with out his permission.

      Ed, ever wonder how many more event photography jobs you might have to turn down if “Hawk” doesn’t share his thoughts with the masses about his “(opinion)” about copyright in the future?

      Oh, well….What about an old fashioned plumber – of course everyone knows how to use a wrench and replace a toilet, so why even bother paying someone else to do the work for you? After all, all they are doing is showing up and just doing the work that you could do, if you felt like, but only if you didn’t feel like letting the wrench do the work for you instead? Is a bathroom a controlled or uncontrolled environment? But that is old technology, you are predicting new technology is going to come along any day now that will remove you from this decision making equation so I wouldn’t worry about where your shit is going to go in the future. Oh, but who will come up with a new idea for that technology if it hasn’t yet been invented?

      Or a musician – anyone else could write and perform original music right? Not Andy Baio’s ‘Kind of Bloop’ CD however – he paid a copyright holder for permission to use an unoriginal piece of music, created by an artist who is dead, who Andy respected enough to seek permission and secure a license from before he paid someone else to record a different version. But his “talented artist friend” who actually made the album cover, they worked for Andy for free – with that kind of business model, maybe they should start shooting your event photography gigs for free too since you’re no longer interested?

      Also, don’t you think it would be harder to learn how to get permission from a dead guy, than it would be to ask living photographer?

      Or a painter – no brainer that technology hasn’t evolved compared to other sectors – I mean a brush, canvas, and a pallet could have done their work for them right? Recommended reading: ‘The Painted Word’ by Tom Wolfe. Enjoy!

      Or a cartoonist – anyone else can draw/write those jokes and story line right? All of Bill Watterson’s ‘Calvin and Hobbes’ stories… ALL of those pirated commercial uses that people buy/sell? Or in comparison, Charles Schultz and his commercially success with his ‘Peanuts’ characters, while still maintaining an incredible amount of artistic integrity and obviously an amazing body of work. Enough to build his own ice skating rink!

      Both dead artists – wonder if Andy Baio considered asking either of their copyright holding legal departments for permission to use their work to promote Kickstarter?

      If you’ve ever seen a “Calvin and Hobbes” sticker on the back window of a car, you now have your answer about who people are paying “tribute” to by buying/selling the original work of another artist against his/her wishes.

      Or a graphic artists – it takes no skill to design a layout right? Aren’t they just using some software product that someone else could just as easily use, or even better, couldn’t the program just do it for us? Maybe when they upgrade the next version of Illustrator of InDesing…

      Or a filmmaker – with the red camera now, the movie just shoots itself; those guys don’t even have to worry about focus, or anything? Well, that is your argument about where the future of technology is headed, not mine.

      If a tree falls in the woods in an uncontrolled environment and a Photographer Ed is not there to move his ass 10” TO THE RIGHT would it not change the negative space relationship between the subject and the background? Next time you can’t get your subject to move, move yourself and let me know if you notice any difference in the composition of the negative space in the background, but please DO NOT try this at home or in your studio – only do it in an uncontrolled environment, where the photographer “of a live event (essentially journalistic photography) exhibits no originality.”

      Next, “now, compare that to product or fashion or art photography where the photographer plays an active role in the presentation of the articles they are photographing. very different, right?.”

      NO, not really that different, Ed. In both situations the photographer was present, and also played an active role. Don’t believe me, try it again, as someone with experience shooting events I KNOW you will be able to move your camera ten inches to the right, just give it the old college try.

      Your “point” is a common misunderstanding – technology is constantly evolving, ever changing, and sometimes improving, but the artist’s involvement and participation is a constant. As long as there is a human being involved as the user of that technology, I see no reason why both do not have an “active roll” in the process – controlled environment, or not. It is as if you keep trying to say you don’t need one with out the other, however, just because no one needs YOU to shoot an event, doesn’t mean there isn’t a need for a photographer. Put this way, how many events have you NOT photographed because technology did with out any human being’s active participation?

      I think maybe what you have been trying to say all along, is that you don’t respect journalist work as much – see my first post/comment to you about how many potential influences and FANTASTIC photojournalists who probably aren’t feeling all that appreciated having read your opinion of what they do to earn a living, and in some cases even when the pay sucks.

      It is common in many professions that people work in both controlled and uncontrolled situations. The doctor example above: One day they might have regularly scheduled rounds, and then later treat emergency patients on a moments notice. Would you care to make your same argument that the technology and equipment used to operate on an unannounced gun shot victim is really all that society needs, because lets face it, as long as some person besides you is there do the work, they and/or technology will do the work instead of the doctor, right?

      Please name an occupation, creative or otherwise, in either a controlled or uncontrolled environment, where the participating human being serves no purpose? (Besides politics)…

      What do you do for a living again? And frankly, if it involves using ANY kind of technology, creative thinking, or physical labor, why are you being paid for it when any warm body and/or machine could just as easily perform your role? Some one should really have that discussion in detail with your employer – they could really implement Baio’s cost cutting strategy with zero impact on production!

      So natural selection has taught YOU that YOU can’t compete on price alone because so many other people have the same equipment as you? But then how do you explain those who are making a living shooting the event gigs you no longer get hired for? Is it because they are undercutting you so bad that you can’t afford to stay in business shooting events? Or are they more talented? Or work harder at it? Or do you make a living doing something else?

      You in essence appear to only be saying, you could/did perform those event photography jobs just as well as anyone else, but you choose not to because they don’t pay a high enough wage for your economic standards. I guess it would take someone more willing to sacrifice more than just money to do the jobs you used to do?

      As Doug alluded to, some of your competition could be independently wealthy if they have previously sold any startups and can afford to put everyone else out of business. Rather then perusing your interest passionately, apparently it has gotten so bad you’d rather stay at home and spend your time correcting your white balance instead and I regret that this is now the case for many, many professional photographers.

      One possible explanation why others continue to take the jobs you no longer want is “the fact that the most important part of it was being there at the time it happened rather than [YOU] being there?” And come on, who are we kidding – anyone, in any job could be that person so long as we have a widely available, ever changing, sometimes improving technology that will one day in the future do the work for us?

      It isn’t rocket science, web development, law, or medicine – but think about that the next time YOU are NOT shooting an event job simply because you can’t make enough money doing it. I don’t know what you were charging, but if price wasn’t a factor maybe, just maybe, there is another reason your old clients are now hiring someone else to shoot their events instead of you? Like, your attitude for example.

      As for your workflow strategy – to each his own. Of course the more time you spend “fixing” it on the computer is less time you have to be out shooting event jobs where others working hard for little pay to “simply document what happened.”

      Anyway, I look forward to hearing your response to which version of Andy Baio’s “facts” you find to be the most entertaining.

  34. Pingback: Photo Round-up | Morel Studio Support

  35. Jamie Smith says:

    Today, Monday July 18, 2011 on the top of, is Director Andy Baio’s post called, ‘Ask Obama an the Twitter Town Hall”.

    Baio says, “These tweets represent a broad spectrum of opinion, from thoughtful commentary and comedy to political activism and virulent anger.
    For me, the most interesting thing gleaned from the dataset was how posting behavior fundamentally changes the level of discourse. Because @whitehouse has rarely been used for responses thus far, the majority of the tweets fall into two categories: people referencing the White House as an entity and people venting frustration. Unfortunately, for both types, it’s clear that they don’t expect a real conversation with @whitehouse, even though there are real people on the other end.”

    At the top of Andy Baio’s blog for over three weeks now:

    “Note: I posted this on Twitter and Maisel’s Facebook wall before it was deleted, but I’ll repeat it here: I understand you may have strong feelings about this issue, but please don’t harass him publicly or privately. Reasonable discussion about the case is fine; personal attacks, name-calling and abuse are not. We’re all humans here. Be cool.”

    QUESTION: So in his own June 23, 2011 ‘Kind of Screwed’ debacle, why did Baio’s own initial posts (blog, Facebook, Twitter) asking people to be respectful do NOTHING to fundamentally change the behavior of his supporters and level of discourse (hatred) of the conversation?

    And secondly, once Maisel’s character and home were attacked, why did Baio himself say nothing publicly for two weeks if his theory is that his input would in fact change the direction of discourse?

    Did he want his conversation about the ‘Kind of Bloop’ settlement agreement to be about copyrights and fair use, or about people venting, personal attacks, name calling, and abuse?

    Fact is, from June 23, 2011 – July 8, 2011 Andy Baio added nothing to his own VERY public conversation. Eventually it got so bad that he then got back on the internet to run damage control. I think many would argue after two weeks of complete public silence it is hard to fully appreciate Baio’s mysterious absence, though there is little question how it dramatically it changed the conversation people were having.

    He said one thing June 23 and was totally ignored by his supporters, then said nothing for two weeks and people let people vent their own frustrations by jumping to conclusions and attacking another human being they don’t know on Baio’s behalf?

    Either way, two weeks is a long time for a Social Media “E X P E R T” to be silent in conversation.

    Seen any public comments from Andy Baio about ‘Kind of Bloop’ since July 10, 2011?

  36. Jamie Smith says:

    July 19 , 2011

    Andy Baio’s personal friend, Duncan Davison has updated his June 23, 2011 blog about Baio’s ‘Kind of Bloop’ settlement agreement and Baio’s fair use argument:

    Davidson says:


    Since writing this post, I’ve been contacted by email by several people. Some feel that I’m helping inflame the case for one party or another. Let me say clearly: My intent here is not to be a proxy for either party, but to talk about the larger issue of this case as I see it. As of July 19th, 2011, I’ve heavily edited this post to clarify what I wanted to communicate and removed a lot of material which doesn’t satisfy that aim.

    Furthermore, the situation around this conversation has deteriorated. Personal attacks are high. Beyond the immediate circles of supporters, the people who like to fuck shit up—the type that show up to a protest and turn it into a riot—have been at work. The result is beyond sad and has hijacked the conversation to serve different aims. It seems that a rational conversation about copyright remains very hard to have.”

    Also interesting to note the change in language – in the original June 23, 2011 version, Davidson said:

    “As a photographer, I’m a very strong supporter of a photographer’s right to profit from their work. For example, if you want to make money by using my work and I’m not willing to gift you that use, I believe that you should pay me. On the other hand, as a lifelong creative that’s fascinated with the process of making creative works, I believe that allowing creative transformations of artistic work is necessary and essential for culture.”

    The new version makes basically the same reasonable argument, but missing are the words: AS A PHOTOGRAPHER, I’M A STRONG SUPPORTER… Here is the new paragraph in Duncan’s own words:
    “Photographers have a right to profit from their work. For example, if you want to make money by using my work and I’m not willing to gift you that use, I believe that you should pay me. On the other hand, creative transformations of artistic work are part of the creative process and are essential for culture. There’s an inherit tension here between these two points. This tension is addressed—at least to a degree—by fair use in copyright law. The big question is whether or not the Kind of Bloop cover is transformative enough to qualify.”

    It remains unclear if Davidson himself has ever gifted someone permission to use his work AFTER learning they were already using it.

    He also makes no mention of ever defending his copyright or registering any of his photographs so it is impossible.

    To his credit, Davidson shares a sentiment many others have been expressing:

    “Putting aside the emotional and financial effects on Andy and Jay, I wish this case had gone to trial and a judge had been able to rule. No matter how it turned out, it would have given all of us a valid data point that would be worth more than just a bunch of talk.”

    One need look no further back then the recent Fairy decision (which in Baio’s blog was described as “ongoing”) or also the court decision in “Mr. Brainwahsh’s” case to get a sense of how the courts would have ruled, so perhaps Baio was wise to take his lawyers advice and settle.

    With respect to Davidson’s:

    “Bonus Question: Do the possible penalties in copyright law designed to make it painful enough for publishing companies to comply make sense when applied to individuals in the current world where it’s so easy for anybody to be a publisher?”

    It seems fairly obvious that of the parties involved, Kickstarter and Mr. Baio are much more of a corporate entity then an independent individual artist such as Mr. Maisel.

    Duncan – “painful enough for publishing companies to comply…?” First, Kickstarter publicly states their © policy and expects their users/customers to respect the terms of their intelectual property agreement. Secondly, it would have been far less painful for Mr. Baio to simply respect his former company’s moral standards and the law.

    Is that all you got after your personal friend Andy Baio has spent 4-5 years blogging on the internet that the same rules shouldn’t apply to him? Because he is not a publishing company – Didn’t he produce and publish the album?

    By the way, also from the original June 23, 2011 post, but now missing with today’s updated version:

    “Postscript: Many have commented via email on something that I should make more clear. Andy stopped the use of the image immediately after receiving Jay’s cease and desist. Everything after that point was Jay and his legal team pressing for statutory damages.”

    Why would Duncan take that part out if Andy indeed stopped using the image IMMEDIATELY after receiving Jay’s cease and desist?” Or perhaps more importantly, how come Davidson mentions a cease and desist letter on June 23, 2011 (same day as Andy’s blog), but Baio himself never did?

    Lots of questions, lots of stories, lots of opinions. Nothing from Andy Baio since July 10, 2011. Makes me ‘Kind of Curious’ about why there haven’t been more answers about the truth.

  37. Jamie Smith says:

    ‘Kind of a Different Story’

    July 20, 2011, Andy Baio’s former company, Kickstarter has “updated” Meghan O’Connell’s June 23, 2011 post about that was originally called ‘Kind of Screwed’ – same name/date as Andy’s. Also missing is her by line – no one is credited with the HEAVILY edited, though still supportive, story of Andy’s behavior. There is no mention either of his long history of behavior that certainly seems to contradict most everything in Kickstarters own publicly stated ©/IP terms that they also mandate their users/customers to agree to.

    Why would Kickstarter require their clients to agree to respect the copyrights of other artists but then publish blogs about a former employee who, according to the author, has offered everyone this insight:

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

    Seems if Andy had Kickstarter, and ALL ARTIST’s best intentions in mind, he could of just called Masiel and ask for permission to license an image?

    Anyone else starting to wonder why Duncan Davidson, and now Kickstarter are HEAVILY editing their blogs about Andy Baio from almost a month ago?

    Not only were they slow to respond, but they haven’t really addressed on major issue – if Kickstarter puts itself out there as a company who is all about supporting artists, why do they side with Baio who for years has had many legal battles with artists over the issue of not respecting copyrights and intellectual properties?

    And the major organizations who Kickstarter works with – The Magnum Foundation, Sundance Institute – they are ok with Baio’s attitude that his best intensions means he can’t be bothered to ask an artist for permission to use their work?

    I encourage anyone with a similar question to ask either Andy Baio, or Kickstarer to answer for themselves.


  38. Jamie Smith says:

    ‘Kind of Updated’

    July 21, 2011 – Kickstarter has changed (again) their ‘Kind of Screwed’ blog post by Kickstarter employee Meghan O’Connell (the tittle is back, so is her by line), but the wording is now even a little more different (but still with no mention of the edits or any retractions)?

    NOW her blog says:
    “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.”

    YESTERDAY’S version said:
    “In short, a sobering reminder to those of us doing creative work that sometimes the law can interfere even with our best intentions.”

    For a nearly a month Kickstarter supported Andy Baio’s position, yesterday they wanted their users/customers to know how the law can get in the way of their client’s creativity, but today, Kickstarter wants people to respect their companies own policies?

    I think everyone ought to ask themselves if Kickstarter has been open and honest with their polices and the behavior of Andy Baio?

    They still have not addressed a critical problem for ALL artists – if we play by their rules, what happens once our Kickstarter backed projects are independently released and Andy Baio decides he’d like to use our original work with out so much as asking us for permission? Fari Use? Tribute? Or just bad faith and bad business?

    Anyone else tried getting a public comment from Kickstarter in the past month – I can’t get a single response to an emails with some very basic questions.


  39. Jan says:

    There is NO (!) question about, that whoever steal the intellectual property from another person then this thief must be plunged trough legal system and punished ! Period !!!

    In this instance, this is another VICTORY for photographers. By the way, those $32,000.00 USD in my opinion was not enough. It should be at least 3 x more !!!

  40. Andy Peat says:

    Great job at illustrating a flip side of what seems the populist view Doug, I recall reading a story relating to this a while back (a link from Boing Boing) His post reads like he’s the innocent and wide eyed hobbyist that has felt the full wrath of the photographer, and have to say I was swayed by the article and left feeling like Andy was hard done to. Having read your blog and then re read the waxy post it has given me a totally different perspective, hopefully your post will have a similar effect on many more people.
    Hope you’re well and keeping busy by the way

    • Doug Menuez says:

      Hey Andy, thanks for stopping by. Yes it’s been easy for advocates of all things free to sway the masses but the story has a lot of layers and nothing is quite so simple in life as we know. There are large corporations with vested interests in gaining access to free content to monetize for themselves, and that dovetails nicely with a populist feeling that we should all share everything in a perfect world. My sense is most of the people pushing free either benefit directly financially by exploiting that content, or they are not making a living from the content they share, and don’t realize what they have lost in terms of trade practices that allowed artists to survive. What is the new business model for artists if copyright goes away? Piracy is not going away either so it’s a challenge to see how this all works out with a happy ending.

  41. Mike says:

    Anyone familiar with Jay’s work (I mean from his glory days in the 80s when he was Communication Arts poster boy) would remember how often street art features in his work. He frequently takes photos of people with other artist’s work, without attribution, yet made a lot of money from these shots. Did he obtain rights? What about a shot of a Marlboro Man that someone wrote “Hi Ho Cancer” which is featured in his New York book? Did he get the rights from Marlboro and the graffiti artist? What about all the people he shoots without releases on the street of New York and then uses them on his website to promote his work? I think he overreacted. Honest to god, and this is from a working photographer who depends on the sale of images to make a living. He is from the old school and hasn’t really kept up to date with “how things work” now. I mean, he used to have a disclaimer on his old website that stated you would be sued for $150,000 if you right clicked and saved and image from his website…PER IMAGE. Get a grip guys.

    • Doug Menuez says:

      Thanks for responding and raising some good points. First, I don’t think it’s overreacting to be concerned about a mob attack on the web turning into physical attacks on property or possibly to the person, we’ve seen it happen so posting his address and inciting the mob is out of line, way way over the line in my view. Second, “made a lot of money” in regard to street shots, use in book, is a big maybe, we’d have to ask, but doubtful unless Jay licensed any of those shots for an ad. Licensing is where the money is. If he did, he would have had to have releases on all the people or recognizable stuff, which he probably did not. So your statement about making money off those is not likely true. But just maybe he sold fine art prints of those, in which case the rights are all fine under fair use – yes we all benefit from fair use and fair use is vital. Remember, the issues with KOB are not only whether it was fair use but also the fact that they used Jay’s image to promote Kickstarter around the world as a concept. They all had financial gains at stake based on Kickstarter succeeding, so it was the same as if they had done a marketing or ad campaign and used the picture without paying for that. If McDonald’s had taken Jay’s image and with minimal changes used it in ads around the world we’d be talking about 50K, 100K or more bucks in usage fees easily. So they really made out because Kickstarter took off, they get a healthy cut of every KS project, and you can’t take Jay’s image out of that equation since it was featured in their publicity on CNN, BBC and in newspapers and online blogs etc worldwide without attribution or payment as I understand the case. In regard to your comments about his street photography: Just to clarify, as I understand First Amendment law, anyone can take pictures on the streets of NY and use them for portfolio, personal use, fine art, web site, and even publish them in newspapers and magazines without risk- unless there is a caption or headline or text that defames while identifying, or if the subject is identifiable, and the subject sues and a jury agrees. Of course in the case of fine art, the photographer is selling prints and making money and anyone can sue if they object so that may remain a bit of a gray area. Jay’s disclaimer was based on the copyright law that allows for a minimum of 150K per infringement. Copyright law was established by our founding father’s in the US Constitution to stop publishers from exploiting authors. We benefit from that. A lot of people would like to take that away. These people are not artists or if they are then they are too young to have benefited from a law that allowed them to feed their families and survive based on their work. Take it away and you take away our culture. I don’t see an alternative, though I do believe in sharing images with educational use and non profits, and libraries if asked. I also agree fair use should be fairly flexible.

  42. August says:

    I too was appalled at the treatment and mob mentality exhibited against Jay Maisel. I understand that artist need to help other artists and we all look to each other for inspiration and artistic value, but I feel that this whole episode is symptomatic of a much broader cultural issue. I wonder if it is a symptom of our societies lack of proper parenting skills. I was always taught by my parents and grandparents to never take anything that didn’t belong to me. To show personal integrity in all my dealings. To me what was done to Jay was no different than saying. You know I have an old 2000 Audi with 166,000 miles on it. I need a new car so I went to the local dealership, saw a really nice Chevy Camaro, slapped some new tires and rims on it to “change” it slightly from it’s original look, claimed the “fair use” of the vehicle and drove it home to use as my own. On my way home I got hungry so I stopped at the grocery store and saw a box of Wheaties. I took out my sharpie and turned the “W” into an “M” and claimed fair use because the box was now filled with “Mheaties” I was hungry and took them home, poured some milk on them and took care of my needs, All without paying a dime. Suddenly the car dealership and grocery story complained so I started an online campaign to vandalize and smear the dealership and grocery store, because after all, I was just hungry and needed a new car and they were wealthy and could easily afford to just give me what I wanted. Society needs some basic rules or it breaks down. Imagine what would happen if artists, photographers, programers, auto manufacture’s, farmers, food distributors etc. stopped making goods because they couldn’t afford to make things for free. I talk to people all the time who have no concept of where things even come from that they eat on a daily basis. I characterize these people who reacted in such a vitriolic manner toward Mr. Maisel as woefully uninformed, spoiled humans who haven’t spent much time breaking a sweat on their brow or getting blisters on their hands while trying to produce anything of value. If they had, they would be more sympathetic to the “unfairness” associated with creating something of value and having it taken from them without compensation. They missed out on the valuable life lesson they should have received in their childhood that character is what you do when no one is watching. The ease with which something can be acquired on the internet has led to a free-for-all mentality that doesn’t exist in the analog world. A vacuum of ethics and accountability coupled with a disconnect between what is real and what is virtual. Unfortunately this vacuum of ethics and accountability has permeated our business culture as well and become part of calculated business plans. I thank Mr. Menuez for writing this blog post and all his comments. It is this type of dialogue that proves to be a positive force in countering the “ugly” that is out there on this issue.

  43. Doug, I went to high school with you in Northport! My son Jens Heig is the Online Editor for Snowboard Magazine, loves photography, so I shared your information with him. Inspirational for a young man, thank you for setting such a high standard in your work!

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