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 – Waxy.org 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 Upcoming.com 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.