A long time ago in an analogue universe far, far away, a young man called Jay Maisel photographed Miles Davis in a New York club. The picture became the cover of Davis’ Kind Of Blue, probably the biggest selling jazz album of all time, and one of Maisel’s most famous images.
In 2009 another young man, Andy Baio, created Kind Of Bloop, a chiptune version of the Davis classic. He also used a pixel art version of Maisel’s image, “the only thing that made sense for an 8-bit tribute to Kind of Blue”. Baio was careful to obtain and pay for all the permissions needed to reproduce the music. However he didn’t bother to even call Maisel over the photography: you see, he felt he could just take it.
In early 2010 Maisel found the 8bit version of his image, moved straight to no. 6 of the ten rules of US copyright infringement, and called his lawyers. Seven months later Baio settled out of court for $32,500 plus legal fees: last week he told his side of the story on his blog.
At first sight it’s hard not to feel just a little sorry for Baio. $32.5K is hardly chump change; his account was reasoned and devoid of the rants that were to come from others; and since his story was apparently vetted by Maisel’s attorneys we can reasonably assume it to be factually accurate.
On the other hand a cynic – or a realist – might suspect that Baio posted his account as an act of revenge on Maisel. He clearly had some inkling of the possible repercussions of his post when he wrote:
“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.”
But one would have to be exceptionally naive or an internet virgin – Baio is neither – not to foresee the inevitable response to Baio’s post: “rich old bastard with Rottweiler lawyers uses copyright law to crush starving young artist” is a wet-dream story for the freetard lobby. And sure enough, zombie-like, the freetards quickly took the bait, laying siege to the photographer’s Facebook page and elsewhere with their own interpretation of being cool and human:
“Jay Maisel is a dick.”
“The photographer is a huge fucking asshole.”
“Maisel seems like an incredibly litigious, nasty fuck of a man.”
“The photographer seems to be a smug, loaded, asshole.”
“Jay Maisel is a scumbag.”
“Christ, what an asshole.”
“Deep-pocketed litigious scumbag.”
“Go die in a fire.”
“The best part is the photographer’s Facebook page”, crowed one of the usual anonymous cowards; “he’s getting pounded.” These weren’t just cyber threats either: people were encouraged to “knock on the door of his house” – a map was provided – to “voice one’s disapproval”. Wannabe thugs were reassured that they were safe from accusations of defamation because of Maisel’s public status.
Apart from potty-mouthed insults the freetard fury featured the usual hopeless misunderstandings of copyright law, hilariously self-important threats to “never support Maisel’s work again” and comically confident assertions that the supposed scandal would kill the photographer’s career. And some were just obvious outright lies: “Just told this on good authority, ‘Jay Maisel once told me he made much more money from lawsuits than from photography.’”
Much fuel for the mob’s ire was provided by Maisel’s perceived wealth versus Baio’s apparent poverty. Everyone seized on Maisel’s ownership of a “72 room New York mansion”, which contrasted nicely with the question put by a friend of Baio: “Should a multi-millionaire like Maisel keep my friend Andy’s wonderful young son from having a college fund?”
Of course the relative financial standing of Baio and Maisel has no bearing whatsoever on the validity or otherwise of Maisel’s claim of copyright infringement. But since Baios’s supporters chose to make that a central issue it’s worth asking how much truth is in the story portrayed. Answer: not much.
While it’s certainly true that a big fat Manhattan property would be nice to have, the much-touted and envied “72 room New York mansion” conjured up Gatsby-style images of sweeping staircases and gilded ballrooms with a staff to match. In contrast Maisel’s mansion apparently features graffiti strewn outside walls and a tramp in the doorway: it’s actually an abandoned bank the photographer bought in 1965 for $102,000. In other words, Maisel hasn’t been on a Leibowitz-style real estate spree: he simply bought a dump nobody else wanted almost half a century ago and got lucky.
As for Baio, while he’s probably not in the same financial league as Maisel, he’s hardly a pauper. He admits having already paid the settlement out of savings, so contrary to at least one claim, Maisel didn’t “take every penny this kid has”. And he’s an Internet entrepreneur who sold one of his projects to Yahoo; figures aren’t available, but you can bet it was for a lot more than $32.5K. He is also a former Chief Technology Officer of Kickstarter, the crowd-funding project that raised the funds for Kind Of Bloop. If the freetards genuinely wanted to help Baio – rather than simply beat up on an old guy – they could easily use Kickstarter to raise further funds to reimburse him.
Failing that, two of the mob’s cheerleaders were Cory Doctorow – inevitably – and Thomas Hawk. Doctorow surely has some change to spare from his lecture tours; Hawk, despite his Internet persona as a photographer, is in reality a stockbroker at Stone & Youngberg, a career he admits makes him a comfortable living. Between the two of them they could probably easily reimburse Baio without batting an eyelid. But of course that wouldn’t be nearly as much fun as Internet grandstanding and branding Maisel an extortionist, a dick and a torturer.
In the words of one of his more literate supporters: “Andy Baio is a respected entrepreneur, artist, and writer, who’s collaborated with some of the most cutting-edge artists in the digital sphere while also chronicling their works”. It’s also not the first time he’s had copyright problems. According to the ever reliable Wikipedia:
“Baio often takes a stand against censorship on the Internet by hosting or linking to controversial content which some parties wish to suppress. This ranges from unauthorized mashups and other artwork where parody or fair-use claims are disputed to newsworthy video. When the parody cartoon House of Cosbys was taken down from its original site due to a cease and desist letter from Bill Cosby’s attorney, Baio placed the videos on his own website. Baio later received a similar cease and desist letter but refused to comply, citing fair use and decrying what he termed “a special kind of discrimination against amateur creators on the Internet”.
So far from the starving kid mugged by a copyright troll portrayed by the freetards, Baio appears to be a reasonably well off tech whiz with a history of challenging copyright law as he sees fit. He didn’t take Maisel’s work because he was broke. He didn’t take it because he doesn’t understand intellectual property. He took it because a sense of entitlement told him he could, and a sense of arrogance told him he could get away with it. He was wrong. So who’s the dick now?