Last year, Waxy released Kind of Bloop, a chiptunes tribute to Miles Davis's Kind of Blue. He meticulously cleared all the samples on the album, and released it for $5 (backers of his Kickstarter project got it for free -- Waxy is founder of Kickstarter). One thing Waxy didn't clear was the pixellated re-creation of the iconic cover photo he commissioned. He believed and believes that it is fair use -- a transformative use with minimal taking that doesn't harm the market for the original, produced to comment on the original. Jay Maisel, the photographer who shot the original, disagreed, and sued Waxy for $150,000 per download, plus $25,000. Waxy ended up settling for $32,500, even though he believes he's in the right -- he couldn't afford to defend himself in court. He's written an excellent post on copyright, fair use, and the way that the system fails to protect the people who are supposed to get an exception to copyright:
In practice, none of this matters. If you're borrowing inspiration from any copyrighted material, even if it seems clear to you that your use is transformational, you're in danger. If your use is commercial and/or potentially objectionable, seek permission (though there's no guarantee it'll be granted) or be prepared to defend yourself in court.
Anyone can file a lawsuit and the costs of defending yourself against a claim are high, regardless of how strong your case is. Combined with vague standards, the result is a chilling effect for every independent artist hoping to build upon or reference copyrighted works.
It breaks my heart that a project I did for fun, on the side, and out of pure love and dedication to the source material ended up costing me so much -- emotionally and financially. For me, the chilling effect is palpably real. I've felt irrationally skittish about publishing almost anything since this happened. But the right to discuss the case publicly was one concession I demanded, and I felt obligated to use it. I wish more people did the same -- maybe we wouldn't all feel so alone.
Kind of Screwed
Sampla is a sustainable footwear startup from Ireland, and in their current Kickstarter campaign, they’re offering a new pair of animal-friendly shoes made from … apples?! Rethinking the classic tennis shoe, the upper material of our shoe is made from a vegan material called AppleSkin™. It is made using repurposed apple waste from the juice […]
My multitalented friend Cooper Bates is the co-founder of Hint Mint (which features artists’ work on mint tins), a stage performer, and a photographer. He’s got a new project on Kickstarter, and I signed up for it. It’s a deck of conversation/introspection cards called “I Think Therefore I Question.” From the Kickstarter description: I Think […]
Director/writer Duncan Jones — whom you may know from his hyper-focused, small cast sci-fi films like Moon and Source Code, or the larger-scale Warcraft film that I admittedly never saw — has a new project out in the form of a graphic novel. Madi: Once Upon A Time In The Future is written by Jones and author/letterer […]
If you’re a photographer, videographer, or graphic designer, you’ve got a lot of competition charging up behind you. Because while you’ve been trained as a content creator, the task of snapping brilliant images, capturing well-composed video, and posting effective social media is now part of literally everyone’s skill set. For years, Adobe and their ubiquitous […]
After years of hearing a steady drumbeat about the necessity of surfing the web under the protection of a VPN, even the most technophobic among us are starting to come around. But even knowing the dangers one can face from cybercrooks phishing for information from unsuspecting victims online, those last holdouts still have some fears. […]
You may not realize it, but some of the biggest films in movie history have been edited using the same tools some of you use to cut your video of vacationing at Disney World. Giant movies from Oscar favorites The Social Network and Gone Girl to blockbusters like Avatar, Deadpool, and last year’s Terminator: Dark […]