St Petersburg, Russia, 31/05/2005. The interior of the Catherine Palace in the surburb of Pushkin.
The freetard idea of a photographer's home. Photo © Jeremy Nicholl 2011. All Rights Reserved.

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.”

“Copyright troll.”

“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?

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55 Responses to ““Jay Maisel Is A Dick”: Freetard Mob Savages Octogenarian Photographer Over Copyright”

  1. As a cultural libertarian I am deeply hurt by the ‘freetard’ epithet. It’s almost as bad as being called a pirate. Anyway, it’s probably best if we avoid the name calling and focus on the ethics of the matter.

    See http://culturalliberty.org/blog/index.php?id=276

    Copyright is an 18th century privilege that you can commercially exploit, or neutralise via a copyleft license. It is possible that the privilege is not actually ethical…

  2. justin leighton justin leighton says:

    when i read Andy Baio’s blog … the first thing that hit me was as you pointed out … the only person that he didn’t bother to contact was Jay Maisel … this baffled me … Just maybe if he had just gone to see the man and had a chat in a respectful way and explained what it was he was upto … Mr Maisel might/would have cut a deal … who knows … I get in my own little way ppl asking for images for projects… most of them a great … it’s a joy to be involved … if I like them No problem… if the person is a “dick” then bye bye… If you want to borrow something then ask … if you take it then be prepared for a not so happy ending …

  3. Wayne Borean Wayne Borean says:

    I can see that I’m going to have to address this myself. Copyright is an interesting part of the law, and one that I have an intense interest in. As it happens I suspect my article is probably going to upset everyone, but then again, when I write something I usually do manage to upset everyone.

    FYI, I’ve long advocated that copyrights be only held by humans, that it be illegal for copyrights to be held by corporations or non-profits of any sort. This has made me less than popular with the Canadian Recording Industry Association and the Recording Industry Association of America. They’ve taken me off their Christmas Card list permanently :)

    Wayne aka The Mad Hatter

  4. Simply Freetarded Simply Freetarded says:

    Clearly while public civility and courtesy are lacking on both sides of this conflict, the reflexive defensive of Baio by a large number of people who hear this story seems to comes down to one simple point, Maisel didn’t need to sue to get his point across.

    Just as Baio could have simply asked (as the copyright zealots like to point out) if Maisel had objections to his riffing off the original photo to create new work, Maisel could have simply asked Baio to remove it. Maisel’s move to immediately sue seems like an ironic attempt to excessively and punitively profit from another artist’s work… or to stifle invention and innovation which is counter to the original intent of copyright.

  5. justin leighton justin leighton says:

    Simply Freetard (why don’t you guys ever use your own name…) or do you prefere the intrigue ?

    they are plenty of free usage photographers out there … do they not produced anything that you guys and girls really want to use … I hope they do it’s a great resource for you… full of iconic stuff

    Mr Hawk has a flickr stream full of choice free to change/use images … Go Mad … create as much original art as you can … None of us will mind…

    http://www.flickr.com/photos/thomashawk/5873046404/in/photostream/

  6. Bob Croxford Bob Croxford says:

    The discussions all around the web blogs show that this is a classic case where the US law on Free Use is badly framed. This case should be required reading for UK Freetards who want to see the UK go in the same direction.

    No one seems to have mentioned that Maisel bought the old bank as a commercial studio premises at a time when he was one of New York’s most famous photographers. It was considered at the time to be a good buy compared to renting a loft.

    Maisel has a reputation for high quality work. Messing about with one of his images in the way Baio has done is an insult.

  7. john linton john linton says:

    Copyright, like every law in any statute book, is a compromise between the idea of justice and our ability to write down rules that fit as many circumstances as possible. That’s why we have judges – to decide on the grey areas of legislation.

    My opinion is that it’s odd that Baio paid the music licenses but not the photography. A judge would probably take this into account – if Andy thought it was right to pay for the music then it would have been consistent to pay for the photography too. My guess is that this is why he settled.

    One day some of the people creating mashups just now will start to make a living for themselves and their families as a result of their creativity. At that point they will probably regret fighting to undermine a copyright law which should protect the work they make from being financially exploited and debased or devalued by others.

    The system and the arguments for and against are not clear cut. Watch out for those who use the ‘fair use’ clause claiming that it stifles progress and creativity – there is a huge amount of money – much more than this photographer sued for – that can be made by others if copyright is abolished.

    The web and the way it shapes our world (and in fact our very future as the human race) is in its infancy. Have a good look at all sides before deciding that an inconvenient law needs to be abolished.

  8. Albert Normandin Albert Normandin says:

    The simple fact is stealing is stealing.

  9. Bob Croxford Bob Croxford says:

    Apologies for coming back on this.

    The more I hear about this story the more I think that Baio deserves no sympathy.

    There has been a huge amount of envy about Jay Maisel’s home. What is missing is that he bought a bank in a derelict area of New York way back in 1965. At the time he was one of NY’s top photographers and the bank became his studio and commercial premises. No one wanted to live there except hobos and drunks. As anyone who owns a house knows a house is only worth what the market says it is when you sell; but then you have to find another home and tie that capital back up again.

    Andy Baio is credited with creating a web business called Upcoming and selling it to Yahoo for a few millions, (reputedly). Consider for a moment what he sold. Was it real estate, a fleet of trucks, a factory making things or anything tangible? No. It was a piece of Intellectual Property. It had value because Yahoo wanted the IP. Nothing more, nothing less. To be able to sell that IP based business relied on IP law which includes Copyright law. For Baio to have negotiated the deal with Yahoo he must have been aware that Yahoo couldn’t just steal his IP.

    When Baio decided to produce a version of Miles Davis’s ‘Kind of Blue’ he knew he had to get licences for the music. As I understand it music licencing is not controlled by the heirs of Miles Davis but by a licencing organisation. No one was able to turn round to Baio and say ‘This is a crap idea. We don’t want Miles Davis’s works treated like this.’

    Mr Baio was born in 1977 which is 18 years after ‘Kind of Blue’ was recorded. He was 14 years old when Miles Davis died and I doubt very much whether he ever heard the man play live or ever met him. Yet he has the chutzpah to think he can make a ‘Pinky and Perky’ version of the album and rip off the iconic original cover art.

    Thank goodness the photographer responsible for the cover registered his copyright and took Baio to the cleaners. Baio’s pathetic blog trying to justify his copyright theft as Fair Use shows that he has a future career in public relations if nothing else.

    We can see how Fair Use defence has gone recently in the Patrick Cariou v Richard Prince case.

    http://www.aphotoeditor.com/2011/03/19/richard-prince-loses-fair-use-argument/

    and also the Glen Friedman v Mr Brainwash case.

    http://www.aphotoeditor.com/2011/06/10/mr-brainwash-loses-legal-battle-with-photographer-glen-e-friedman/

    If Baio had the principles he claims he would have fought the case to the end. He threw in the towel because, in my humble opinion, he was in the wrong. Big time.

  10. Michael Michael says:

    “Mr Baio was born in 1977 which is 18 years after ‘Kind of Blue’ was recorded. He was 14 years old when Miles Davis died and I doubt very much whether he ever heard the man play live or ever met him. Yet he has the chutzpah to think he can make a ‘Pinky and Perky’ version of the album and rip off the iconic original cover art.”

    So what now? Because you don’t like what he has done he shouldn’t be allowed to “remix” it? Who made you the Judge of all things “tasteful art”?

    The aesthetics of the 8-Bited photograph I actually enjoyed and personally I would have considered it fair use if it would have been one of mine.

    Personally this entire story only has losers to me on both sides. Baio because he’s tossed in with “freetards” (nice one, btw, takes away from your point, but who cares, you got a dig in) and Maisel because he comes off as somebody who needs to shoot with a canon on a fly. He could easily have tried to contact the guy and negotiate a license first before unleashing the lawyers.

  11. Simply Freetarded Simply Freetarded says:

    Freetarded here,

    @justin leighton, A man of intrigue? I don’t believe so, I just feel it is not always necessary to slap an identity to either claim or add/remove weight to my argument. This isn’t about me after all, is it? I was merely commenting on the lack of civility on both sides of this issue, not whether either side was able to take some kind of moral high ground over the other.

    @Bob Croxford and john linton. Here we see a fascinating breakdown of two common positions staked out by proponents of the culture of ownership. Croxford seems indignant that anyone would re-imagine the holy works of established art more than anything (which illustrates the understandable guild-like status consciousness of the art world) while linton more measuredly but misguidedly elucidates the position that implies copyright should solely protect profit rights.

    I understand Croxford’s resistance to altering the form of Maisel’s work, but art is both a display of masterful skill AND a statement… a message conveyed about the subject and the artist’s view of that subject. While Baio may be unable to contribute anything meaningful to the appreciation of Maisel’s skill, he most certainly can riff upon the message, mood and meaning of the photograph. That is, sorry to say, the nature of art.

    Linton I feel is a victim of the new re-envisioning of copyright which frames its only purpose terms of financial value. Copyright as a public law is meant to benefit both the individual creator and society as a whole by rewarding the those who would contribute to and improve society, encouraging them to do more. It was in society’s interest to protect the works of creative people to allow all to benefit from their creations; so the individual and society have different goals but enjoy mutual benefit. This is anecdotally why you see a different view of intellectual property in China, say, because there (as I understand it) you are expected to contribute freely for the benefit of all first and foremost, adding to and building directly off the work of of others. That is also why, I have heard, some Chinese exchange students have a hard time understanding our obsession with plagiarism, there they are expected to use the words of others verbatim as a measure of their understanding of a subject. This may seem like digression, but I think it is valuable to point out that profit motive and our view of intellectual property is hardly universal nor even the original intent of copyright, it is a modern western construct that is being foisted upon us.

  12. Jeremy admin says:

    Crosbie, I very regularly see propaganda – there really is no other word for it – that copyright invariably belongs to big corporations, and its sole purpose is to enrich those corporations and prevent the creativity of individuals. This is a lie. Copyright ownership, and the benefits it brings, is the means by which millions of creative individuals earn a living from their work and feed their families. Unethical is the word I would use to describe your desire to deny those people the right to earn a living from their art.

  13. Jeremy admin says:

    Simply Freetarded, public civility and courtesy seem to to be lacking only one side. I’ve trawled a lot of sites and forums over the last few days. While I’ve seen some anger from professional photographers at Baio’s actions, nobody has used foul language against him, or circulated his address & encouraged people to knock on his door, or swamped his site with abuse forcing him to take it down. Contrast that to the behaviour of Baio’s supporters toward Maisel. Indeed it’s interesting that for all the places on the web this has been discussed, the only place people can’t discuss it is at Baio’s own blog: he doesn’t allow comments on the matter there. So much for democracy, transparency & using social media to engage with people.

    Should Maisel have contacted Baio rather than the other way round? Why? If I want to use somebody’s property it’s logical that I should ask permission first, rater than wait for that person to discover I used it and contact me after the event. Apart from any legalities, that’s just good manners. If Baio had done that he could have avoided all of this.

  14. Jeremy admin says:

    Wayne, I’d be very much in favour of a system in which copyright is only held by humans, i.e. the original creators. For one thing it would instantly kill the freetard big lie that copyright always belongs to big corporations.

    It’s interesting that Baio, who objects to a human being defending his intellectual property, sold his own IP to a corporation, Yahoo, for big bucks. Presumably Baio would object to your proposal, since it would have prevented him from profiting under the IP laws that he affects to despise.

  15. justin leighton justin leighton says:

    Simply Freetarded …sorry but what BS you can see me and know where I’m coming from … But you are hiding behind some silly noms de guerre … come out and fight your corner as you… Better to understand where you’re coming from … Promise not to come round and knock on your door

  16. Jeremy, don’t just take my word for it, get a second opinion from Karl Fogel: http://questioncopyright.org/promise

    As a privilege copyright is very expensive to prosecute – even publishing corporations are desperately trying to find ways to get the public purse to pay for its enforcement.

    And as for my “desire to deny those people the right to earn a living from their art”, nothing could be further from the truth. I’ve spent the last decade trying to understand how artists, authors, and photographers (especially the less wealthy ones unable to afford lawyers) can sell their work in the presence of filesharing and piracy, i.e. in an environment in which copyright is no longer effective at obtaining a reproduction monopoly.

    I’m very much about enabling independent artists to be paid for their work directly by their fans, without the need for copyright and a litigation budget.

    Sites that I’ve developed in my research are:
    http://digitalartauction.com
    http://quidmusic.com
    http://contingencymarket.com
    http://1p2u.com

    It is only through my research of copyright and its history that I have understood why it is an unethical 18th century privilege intended for Queen Anne’s stationers’ company, and therefore why the people’s cultural liberty will prevail vs ever more draconian enforcement. If you had discovered that copyright was unethical and that sharing and building upon published works was actually a natural right, wouldn’t you think you had some responsibility to help others discover this too?

    Remember, that copyright is not coming to an end through academic argument, or propaganda as you put it, and it cannot be maintained through indoctrination or ‘re-education’ as some might term it. If the people are choosing to assert their cultural liberty in place of obeying an anachronistic privilege, then that is the legion you must subjugate. You can’t defeat them through argument, you can only understand and adapt, i.e. migrate your business to a model that doesn’t rely upon copyright and expensive lawyers. The article I linked to just explains the ethics of the inevitable and why it would be kinder to avoid making any more martyrs out of filesharers by abolishing the privilege sooner rather than later.

    It is possible for photographers to exchange their work for the money of those who want it – without a privilege to prohibit copies. And of course, a photographer’s natural/moral rights remain, e.g. against plagiarism.

  17. Huh? Huh? says:

    Not sure what this has to do with freetards. No one is advocating Linux or free software that I can see. Do you even know what that word means?

    What we *are* doing is pointing out that Jay Maisel is a dick. He’s a dick for using lawyers to extort thousands of dollars from someone who did nothing wrong, knowing that it would be cheaper to settle than to defend his innocence in court.

    Making a parody derivative of someone else’s artwork is not a violation of copyright. Even if it were, violation of copyright is not “stealing”. Taking a picture of The Scream without permission is copyright infringement. Breaking into the National Gallery and taking The Scream for ransom is stealing. Taking a photo of a building is copyright infringement. Taking the whole building and moving it elsewhere is stealing.

    Copyright law is seriously out of control in America, and we are basically powerless to stop it. The best we can do is publicly shame those who abuse it.

  18. Tony Sleep Tony Sleep says:

    @Crosby Fitch

    In 1841 Thomas Macauley gave a speech to the British Parliament which became the foundation of copyright law in the UK. He set out with great clarity the necessity for copyright:-

    “The advantages arising from a system of copyright are obvious. It is desirable that we should have a supply of good books; we cannot have such a supply unless men of letters are liberally remunerated; and the least objectionable way of remunerating them is by means of copyright. You cannot depend for literary instruction and amusement on the leisure of men occupied in the pursuits of active life. Such men may occasionally produce compositions of great merit. But you must not look to such men for works which require deep meditation and long research. Works of that kind you can expect only from persons who make literature the business of their lives. Of these persons few will be found among the rich and the noble. The rich and the noble are not impelled to intellectual exertion by necessity. They may be impelled to intellectual exertion by the desire of distinguishing themselves, or by the desire of benefiting the community. But it is generally within these walls that they seek to signalise themselves and to serve their fellow-creatures. Both their ambition and their public spirit, in a country like this, naturally take a political turn. It is then on men whose profession is literature, and whose private means are not ample, that you must rely for a supply of valuable books. Such men must be remunerated for their literary labour. And there are only two ways in which they can be remunerated. One of those ways is patronage; the other is copyright.”

    We would recognise patronage as modern day employment. If an employer assumes responsibility for the livelihood of his employees, then he receives ownership of the work that his employees create in return. But freelances who trade on their own work enjoy none of the security of employment, their only asset is the copyright of what they create. And in modern copyright law that is exactly the intention that we find.

    All of which is well and good in a market of equitable relationships. The freelance may licence or sell his copyright as he wishes, at a mutually agreed price. But as noted, the photography market is now a long way from being equitable. The situation is becoming one where copyright is universally demanded as a non-negotiable term by clients seeking proprietorial control without any of the obligation or duties conferred by employment.

    While the opportunity for this neo-feudalism arises from oversupply, the demolition of equity has more to do with corporate intent than simple market forces. Intellectual property has become a powerful tool to enhance corporate monopoly and consolidate market power.

    The World Wide Web has infamously presented limitless opportunities for theft of copyright material. From the fuss made, it would seem that individuals are the only villains, but anyone who deals in photographs will quickly encounter widespread commercial use without intent to pay. This extends to the largest corporations, governmental bodies and institutions, and promotes an emergent trickle-down cultural disregard for Intellectual Property Rights: that stealing is just fine unless the victim is able to do something about it. If so, the rich big man stealing from the poor little man, or simply twisting his arm in order to make more profit, can hardly complain when the poor man steals something back. He can however afford lawyers, and reach around the globe with a big stick..

    Macauley was prescient about this discrediting of copyright:

    “On which side indeed should the public sympathy be when the question is whether some book as popular as Robinson Crusoe, or the Pilgrim’s Progress, shall be in every cottage, or whether it shall be confined to the libraries of the rich for the advantage of the great-grandson of a bookseller who, a hundred years before, drove a hard bargain for the copyright with the author when in great distress? Remember too that, when once it ceases to be considered as wrong and discreditable to invade literary property, no person can say where the invasion will stop. The public seldom makes nice distinctions. The wholesome copyright which now exists will share in the disgrace and danger of the new copyright which you are about to create.”

    Perhaps you might care to revise your simple-minded view of copyright as a “privilege”?

    Copyright is not a simple two-way arbitration between public interest and monopolistic corporations, although that is certainly how politicans approach it (voting public on one side, publishing industry lobbyists on the other). Piggy in the middle, trampled by everyone else, are individual creators who actually make the stuff everybody else is determined to pilfer. I rather agree with Wayne Borean : copyright needs to distinguish between individuals and corporate ownership. Probably we need some concept of copyright as an inalienable civil right of the individual creator, whilst corporates can only possess property rights.

    But it’s not going to happen because the weakest lobby is creators themselves, trapped between the public’s sense of entitlement to do whatever they like, and corporate determination to enrich shareholders.

    @ huh..Your semantic wriggling about stealing is wrong. Baio took from Maisel, depriving Maisel of income, but more importantly, the right to say who could do what with his work. And what’s so dishonest about this debate is that Baio was acting primarily as a parasite, not a creator. If nobody had ever heard of Miles Davis nor seen Maisel’s sleeve image, there would have been no icon to hitch a marketing ride upon. That value is exactly what Baio tried to evade.

    The fundamental issue remains : in a world where everyone has a crowbar and detection is unlikely, theft from creators has become a way of life for punters and corporates alike. Look, say the robbers, what I took isn’t worth much anyway, stop whingeing, you are behind the times, you must adapt. To a world where everybody is a thieving, exploitative twat, apparently. And when some old-school fool like Maisel has a go at his abuser, the mob turns up on his doorstep howling with indignation.

    Whose photos are they anyway? Maisels. Everything else is hubris.

  19. justin leighton justin leighton says:

    Dear Mr Huh? are you and Mr Simply Freetarded related ? No names why do you people always hide ? taking a photo of a building is not copyright infringement… Taking the design of the building and then building a copy is …
    I love it the way you people hide yourselves away and snipe from the dark corners of the internet… Extort ? by force, threats, or other unfair means …
    So in your world The Law is for situations that suit you … Like selling a company that is an idea IP to a large corporation Yahoo… like Mr Baio did for millions of $ (NO figs available funny that !!) … So Mr Baio is a hero to you because he used the law to his advantage and Jay is a “dick” because he used the law as protection … I hope the irony is not lost on you Mr Huh

  20. Simply Freetarded Simply Freetarded says:

    @admin
    To be clear, I wasn’t speaking about the incivility of supporters of either camp, I was speaking to the incivility wrought be the current culture of ownership as exemplified by the two individuals in question, where people run to lawyers and seek to destroy each other over real and perceived slights.

    Maisel obviously didn’t know Baio was going to interpret his work beforehand, but it seems (from the accounts relayed in the press) that he jumped to litigation straight away rather than trying to settle it “man to man.” IF Baio used the work against Maisel’s wishes and then thumbed his nose at requests to take them down (which is pretty much standard practice today) THEN Maisel would be absolutely justified in “mov[ing] straight to no. 6 of the ten rules of US copyright infringement, and called his lawyers.” I argue that the effect of pulling out the big guns all the time is a chilling on the art world in general and society as a whole.

  21. Mark Kalan Mark Kalan says:

    Theft of work is theft of work. Lawyers or not. I stand with Jay!

  22. Simply Freetarded Simply Freetarded says:

    @admin
    To be clear, I wasn’t speaking about the incivility of supporters of either camp, I was speaking to the incivility wrought by the current culture of ownership as exemplified by the two individuals in question, where people run to lawyers and seek to destroy each other over real and perceived slights.

    To your second point, Maisel obviously didn’t know Baio was going to interpret his work beforehand, but it seems (from the accounts relayed in the press) that he jumped to litigation straight away rather than trying to settle it “man to man.” IF Baio used the work against Maisel’s wishes and thumbed his nose at requests to take them down THEN Maisel would be absolutely justified in “mov[ing] straight to no. 6 of the ten rules of US copyright infringement, and called his lawyers.” I argue that the effect of pulling out the big guns all the time is a chilling on the art world in general and society as a whole.

    For those offended by my lack of a name….. “There are some who call me… ‘Tim’…?”

  23. Chris Castle Chris Castle says:

    Bob Croxford: I don’t know if it was intentional, but you referred to something called “Free Use.” However delicous the irony, I think you meant “Fair Use.” Which of course is “Free Use”, unless you are speaking of the “hybrid economy” in which case it’s only free for the “workers”, e.g., Flickr users, and not free at all for the Flickr shareholders who sold the company for millions. Or YouTube stockholders who sold the company for over a billion smackers largely for using other people’s stuff. Which leads to my gut check test for saying yea or nay to a free “fair use”–is it fair to be free?

  24. Martin Martin says:

    I miss what some don’t understand there…
    If someone was to steal a yellow cab in NYC, paint it in blue and use it as a cab, would that be ok?
    Would it be ok that the owner of the yellow cab loose the tool with which he is making a living?
    While somebody else start to collect some money with the other guy’s tool without even asking?
    If my kid was doing that I would kick her in the bum…

  25. Jeremy admin says:

    Crosbie wrote:
    “As a privilege copyright is very expensive to prosecute”

    Thanks for that. I’ve been meaning to do a “10 lies of copyright” piece for some time, & you’ve definitely made the list. I recently successfully chased a big US infringer. Cost me nothing upfront; lawyer was paid a very fair percentage of the settlement.

    Misinformation like yours is one of the reasons individual artists often think it’s impractical to defend their rights: it’s not.

  26. Chris Castle Chris Castle says:

    Bravo Jeremy. One other point, this the same Andy Baio who is/was on the board of Kickstarter? The company that takes a vig on providing funding for artists (among others)? Kind of like….

  27. Jeremy, sending a threatening letter is not prosecution.

    Even from your settlement you had to pay expensive lawyers.

    Sounds to me like the privilege of copyright is expensive to prosecute – so expensive, one often cannot afford to prosecute infringers (and will readily settle).

    Anyway, it’s good that we have so little to disagree upon. And good that we share a common interest in artists being paid for their work.

  28. Steve Steve says:

    Crosbie Fitch: “As a cultural libertarian I am deeply hurt by the ‘freetard’ epithet. ”

    The cap fits, Fitch. I’d leave it on to keep the rain out.

    Libertarians are strong on property rights, but since you’re blind to property rights in an obsessive and almost autistic way, discussions with you go on at great lengths and with no resolution.

    The fact you’re upset (and Simply Freetarded isn’t – he’s free and proud!) says more about your thin skin and intellectual insecurity.

  29. Andy Tinkler Andy Tinkler says:

    @ Tony Sleep
    Thanks for explaining the principles of copyright so concisely and comprehensively in post 20. Understanding it has always seems pretty straightforward to me, and yet, there are those who appear bent on denying the essential logic. The classic ‘little guy v The Man’ scenario is used to justify an entitlement complex, but ignores the irony that the primary beneficiaries of photographic copyright theft are large organisations, and the victims are, almost invariably, individual creators.
    Go, as they say, figure.

  30. Simply Freetarded Simply Freetarded says:

    @Tony Sleep
    Finally a more measured and thoughtful explanation of the principles of copyright! We swim in a sea of modern propaganda churned out by corporates that swells the hearts of individuals whilst blinding them both to history and the implications of the things they argue for.

  31. Jeremy admin says:

    Chris: “Vig”? I hope you’re not implying Mr Baio is involved in some kind of loan shark operation? He was involved in Kickstarter & a few other projects.

    But Upcoming.org is by far the most interesting in this context, since he actually owned it & sold it to Yahoo. He’s curiously reluctant to say how much Yahoo paid, & I have no idea, but here’s some comparison figures. Upcoming was bought during a Yahoo buying spree in 2005, & although public figures aren’t available, industry watchers quote $15 – $30M each for some of the other purchases.

    So thats the kind of league Andy was playing in. Puts a different slant on the whole “rich old photographer shakes poor young artist for his last dime” schtick thats been doing the rounds.

  32. Chris Castle Chris Castle says:

    I also notice that his new company, Expert Labs is so omnipresent in the government that “[they]‘ve been privileged enough to connect with agencies and departments across the Federal government, from the White House on down, and we’ll be using what we’ve learned to make sure Expert Labs is making practical, useful technologies.” I wonder which “agencies” and “departments”.

  33. Simply Freetarded Simply Freetarded says:

    @Tony Sleep
    “… things they argue for.” Blast! The enter key is my foe here!!!! Sorry to all for the double posts.

    As I was about to say, the only quibble I have with your otherwise excellent breakdown is that copyright infringement IS NOT directly equatable with theft; to play off what was said here by Albert Normandin “Stealing is Stealing…. but Infringement is Infringement.” <–citation given but no funds transferred, please don't sue me Albert!

    Infringement is by necessity a more complex issue than mere theft since intellectual property is actually protected MORE than regular property due to its insubstantial nature. The historical context of the speech you shared is important, I believe Macaulay was responding to the need for creatives to have an environment conducive to contributing to society through literary means. A author who laboured to write a book only to see it mass produced and sold by another publisher would have no incentive to create more works… and society would be poorer for it. Thus society saw fit to offer protection, through law, to the creator as a means of mutually beneficial agreement.

    Contrary as well to the theft label, we now recognize that in addition to a mere "taking" of intellectual property, you can also devalue it through knock-off and copycat works. Thus, the inebriated Mickey Souse may be an original construct, but the Disney Corporation could argue that the name is too close to Mickey Mouse and its symbolism devalues their intellectual property. Stealing and theft do not broadly enough encompass the protection needs of IP and thus the terms are inappropriate. Infringement is the right term and infringement should be used. Bleating out "Thief!!" is just propaganda, and you are better than that.

    My point on this is that unfortunately copyright can be a double-edged blade and the pendulum seems to be swinging too far in the opposite direction and once again stifling creativity. Copyright has expanded today beyond the concept of "theft" through the power, prevalence and persistence of a legal class that is able to argue and win claims on behalf of their clients. Locking down anything and everything THROUGH LITIGATION is actually acting in manner that is counterproductive to the very climate that allows artists to flourish. None of this really relates to whether or Maisel is a dick or not, but this what the conversation has to devolved to, discussion of society and law. Ewwww.

  34. Mahonri Mahonri says:

    Meisel went after a man with a commercial product who used Meisel’s photo to sell the product. It is just as simple as that.

  35. Joe Joe says:

    The answer to the question “So who’s the dick now?” is so obvious it’s hardly worth noting, but obviously it’s the person who wrote this blog entry. I assume its name is here somewhere, but I have no interest in finding out.

  36. Bob Croxford Bob Croxford says:

    Dear Tony

    To add some extra perspective to your excellent post:

    At the time of the US passing the Sonny Bono copyright term extension research was mentioned that for every ‘corporation’ making money from copyright there were 4,000 individual creators doing so. A corporation was, I think, defined as any business employing more than 25 people. The anti-copyright brigade are fond of bashing Disney et al but the reality is that more ordinary creators benefit from copyright by a very big margin.

    (Quite why the US needed to start from scratch with Sonny Bono’s act is a mystery to me when all they had to do is comply with the international Berne Treaty.)

    Some research in the UK was mentioned on BBC radio on Tuesday which said that over 2 million people in the UK worked in copyright dependent jobs. One only has to look at the number of film technicians employed on the Harry Potter franchise to see how one persons copyright helps the general economy. So much for copyright being unimportant.

    Our problem is that the Freetard movement in the USA want to go back to way before Macaulay. They are part of the dilettante upper middle class crowd who want to play at being creators while being supported by their real jobs. They aren’t interested in ethics, commercial realities, profit or a career. They are only interested in the so-called glory of a byline. They have influence and are pushing hard for Creative Commons licencing to take over the world.

    They even have this crazy idea that Jay Maisels would want to subscribe to their favourite charity; the Freedom Frontier Foundation, which is intent on taking away the means by which he has earnt a living for the past 50 plus years.

    I’m very afraid that the entry into creative life by youngsters from ordinary backgrounds that you and I enjoyed many years ago has now passed.

  37. Chris Castle Chris Castle says:

    I think this sums up a good chunk of the spew: “…nobody has one exclusive sphere of activity but each can become accomplished in any branch he wishes, society regulates the general production and thus makes it possible for me to do one thing today and another tomorrow, to hunt in the morning, fish in the afternoon, rear cattle in the evening, criticise after dinner, just as I have a mind, without ever becoming hunter, fisherman, herdsman or critic.”

    Pop quiz, kids, who knows the author? Winner gets a share of stock in heyidiot.com. Hint: He did not ride to hounds in the Cheshire Hunt.

  38. Bob Croxford Bob Croxford says:

    Dear Chris

    I’m sure that Marx would have been happy to trust to a dillletante, hobbyist brain surgeon, airline pilot etc.

    Commerce and the wider economy needs people with greater talent and capabilities than hobbyists to do the bulk of their work. But those professionals also need to be profitable and cutting the ground from under them does not benefit anyone.

    Unlike Maisels I never was a famous photographer but my images have sold a lot of products over the years. Like Maisels I have shot record album and book jackets which have had a demonstrable effect on sales. (One of my sleeves, which is about 450 places lower than ‘Kind of Blue’ on the Rolling Stones top 500 albums of all time, was shot in 1973 and is still being used.)

    If I was a worker in a business promoted with professional images I’d be a lot happier than if it was promoted by amateur work.

  39. [...] his fury is over Maisel’s action against tech entrepreneur Andy Baio, who heisted Maisel’s photo of Miles Davis and settled for the alleged infringement out of court to the tune of $32,5000. Baio is a reasonably [...]

  40. Jake Jake says:

    Hah! You mock me for copyfascist & fucktard while you’re using freetard. Fair play then, mate. If you get to hurl juvenile insults then so do I.

  41. [...] his fury is over Maisel’s action against tech entrepreneur Andy Baio, who heisted Maisel’s photo of Miles Davis and settled for the alleged infringement out of court to the tune of $32,500. Baio is a reasonably [...]

  42. Linda Brinckehroff Linda Brinckehroff says:

    Stealing is Stealing. Jay Maisel owned that photograph.
    WHy did Baio bother to get the music rights?
    Because he new the artist owned the rights.
    Seems very short sighted that he did not obtain the photographic rights.
    Slamming Jay Maisel over it is infantile.
    Man up, Hawk. Why don’t you use your influence for the powers of right?

  43. David David says:

    Crosbie Fitch keeps repeating his mindless historical mantra that copyright is an 18th-century privilege intended to benefit ‘Queen Anne’s’ Stationers’ Company.

    Well, of course, the Stationers’ Company was not Queen Anne’s, and Queen Anne had nothing to do with her famous statute beyond saying, in old French, ‘La Reyne le veult’ at the appropriate time. More important, the Statute conferred no special privileges on the Stationers’ Company. It made copyright protection available to any author. (Before enforcing a claim they had to register it with the Stationers, for a small fee, but this gave the Stationers no monopoly: if they refused to register it there were alternative means of obtaining redress.) It is true that the Stationers, along with authors and publishers, had lobbied for action against rampant piracy, and they welcomed the Statute as better than nothing, but to describe it as a ‘privilege’ for the Stationers is just ignorant.

    Crosbie Fitch may convince people even more ignorant than himself that he has some expertise on the history of copyright, but I seriously doubt that he has so much as opened a book on the subject in his life.

  44. Jordan Laurder Jordan Laurder says:

    I think you definitely misunderstand American copyright law. Jay Maisel was way out of bounds demanding even a penny for a clearly transformative work. You also misunderstand American defamation law. Much like you call hard-working activists and artists, “freetards” (very mature, by the way), calling Jay Maisel an asshole, a dirtbag, a douchebag, or even a waste of human flesh is perfectly legal and not, in fact, defamation.

    Defamation must make a specific and factual accusation that is demonstrably true or false. For example, if you said, “Jay Maisel killed his mother with a knife in an alcohol rage,” that would be demonstrably false, and therefore, defamation. Expressing an opinion, no matter how raunchy, derogatory, or pejorative, is never defamation in the United States.

    Despite what you may thing, the blogs covering the issue got it about right: litigious washed-up photography extorts unreasonable settlement from poorer artist. $32k is a lot, but a copyright battle can easily run in the hundreds of grand.

    And I for one would have to agree with every objective analyst on this one: Jay Maisel is a douchebag. No, that’s not defamation, despite what some nobody in Russia thinks.

  45. stan d. right stan d. right says:

    The new work is hardly transformative — more like 30 seconds of photoshop and used for the exact same purpose. Simply takes too much and adds nothing. As for the dick — he paid off the music companies but tried to screw a visual artist. The settlement should have been at least TRIPLE the amount he would have paid IF the photog even agreed to do the license.

  46. Gladness Hilton Gladness Hilton says:

    Fabulous ranting, quite enjoyable. Obviously a hot topic. Having successfully challenged an advertising company who’d lifted one of my photos from a website and blown up on a billboard, I am on Jay Maisel’s side. The personal attacks were indeed incited by the passive aggressive comments on the infringer’s website, and totally deplorable. Far from being a poor young artist, this boy has already learnt to play nasty the corporate way. If his 8-bit audio & visual output could stand on it’s own, rather than requiring the mockery of outstanding master jazz and photography, he would have. They only reason anyone would be slightly curious about his “Bloop” LP is to see how damage was sustained by the original masterpieces. I say get a life, leave it to the real artists.

  47. [...] Jay Meisel vs. Internet “Freetards” (The Russian Photos Blog) [...]

  48. Bill Griffin Bill Griffin says:

    This psychobabble supports our litigious culture. Copyright infringement is real simple folks. If you are a burglar and you invade my house whilst I reside beware of the handgun at my bed stand.

  49. [...] news agencies facing a $123M copyright suit, a hipster freetard heisting a veteran photographer’s best-known image, or a British Labour government sabotaging their own election campaign, the sad and expensive [...]

  50. Scott Scott says:

    Former Mr. Kickstarter CTO deserved a kick in the pants. Being a sophisticate himself he and his attorneys made the correct decision to compensate Mr. Maisel for copyright infringement. Hats off to Mr. Kickstarter.

    All young photographers who wish to have any hope at all for making a living in the internet age of value flowing to a few people at the top of Internet corporate pyramids should send Mr. Maisel a thank you note. Unlike former Mr. Kickstarter internet powerhouse CTO, Mr. Maisel has simply been a working photographer for over 40 years and made is living on the copyright of images he made one at a time.

  51. Retired Photographer Retired Photographer says:

    When I was a young photographer in NYC, we used to hang out at Jay Maisels’s studio. When he wasn’t off on some exotic assignment, he would spend time giving us younger guys advice and assistance. He is a smart, highly capable, generous photographer who, if you got to know him, would command from you the same the respect that I have for him. Later, when I sat on the Board of Directors for the APA, that respect was only enhanced as I had the privilege of working with him on matters of great importance to the photo industry. He has always been a hard-working pro who deserves every dime he ever made and whose contributions to the photo industry are legendary. The criticism of him in this case is unwarranted and shows the foolishness of those who are ignorant of the copyright laws and the benefits of those laws to working photographers.

  52. Guest commenter Guest commenter says:

    For those that say the photo was made in 10 seconds in photoshop, that is not true. Please compare Baio’s work with the photograph after some filtering in Photoshop: http://imgur.com/Kj16X You’re just grasping at straws to prove your point.

    I find your name calling just as childish as you say as the mob you’re attempting to mock is. To assume that those who disagree with you and oppose the copyright regime are “freetards” who want everything for free is insulting at the least. Don’t worry, it’s understandable that you would be in that position since you are so narrow minded that you dismiss Baio’s part of the story and paint his intentions the way you want.

    @Tony Sleep: Your assertion of equating copyright infringement with theft is incompatible with reality. When theft occurs, the owner is deprived of his property, which clearly didn’t happen here. Mr. Maisel still has his photograph in his possession and he’s still the copyright holder.

    I agree completely with Michael: this story has only losers and no winners. Mr. Maisel is now seen as a lawsuit-happy, abusive, heartless man, and you see Mr. Baio as a “freetard”.

  53. Vivian Vivian says:

    No, Mr. Maisel is NOT universally seen as a “lawsuit-happy, abusive, heartless man” but a man protecting his work and his professional legacy. Mr. Baio, on the other hand, is most definitely a “freetard” and after reading his blog regarding this incident, still has not learned his lesson. Respect copyrights!

  54. A.B. See A.B. See says:

    Funny thing about all these… posts. No one says they know Jay Maisel personally. I do. Very well. And he was, and is right, period.

    Also, I am a professional photojournalist, successful, with PPs, etc. And I, too, have had my work stolen. Not ‘misappropriated’, stolen. In fact, my best known celebrity image has been used, sans permission, over and over again, ad infinitum, ad nauseum. And my agent, lawyer, etc., always get the same response from the perpetrators: “We didn’t know it was…” Mine. Yes, they found it on my website, did all kinds of machinations find it elsewhere – one even photographed it from a book for usage – and then lie. I did the work, I created the image, I own the copyright. Period. All of you “theorists” seem to have no idea about 1). What it is like to have something of yours, i.e., you own outright, STOLEN, and, 2). Have no perspective whatsoever.

    If you want success badly enough, have the driving ambition and hardheadedness to push yourself until you are at the top of your chosen love of profession, then you know what it takes. However, most you who have written are not famous in any field and have no idea what it takes to protect one’s own work against predators. Whether music, writing, imagery, etc., if you create it, you own it.

    Period.

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