The Online Photographer: Kind of Blue, Kind of Bloop, Kind of Screwed

The Online Photographer, on the Baio/Maisel affair:

I side with Jay in this one. That is, I think the Kind of Bloop cover is indeed a case of infringement and does not qualify as Fair Use. I’ll let Ctein expain it in more detail if he cares to, since he knows more about copyright law than I do, but the issue hinges on “derivative” vs. “transformative” works of art. You’re allowed to transform (create something new on the shoulders of the old); you’re not allowed to derive (copy, even loosely — even in another medium).

Sometimes it does take a jury to decide which is which. Sad but true.

What angers me about Maisel’s reaction is not his decision not to allow Andy Baio to use his pixel-art recreation of the photo. It’s that he didn’t simply ask Andy Baio to stop, and instead pressed for significant financial damages. The decent thing to do, as a first step, is to say “I am not OK with what you’ve done, I want you to stop.”

★ Friday, 24 June 2011