A man who created a licensed and legal chiptune tribute to the classic Miles Davis album Kind of Blue is stuck with a huge legal settlement because he can't afford to defend against accusations that he improperly used the cover art.
When Andy Baio made Kind of Bloop: An 8-Bit Tribute to Miles Davis' Kind of Blue last year, he took all the necessary steps to ensure that everything was on the up-and-up. He licensed all the songs from Miles Davis' publisher and he gave all the profits from the Kickstarter fundraising campaign to the musicians who took part. To tie the package together, he had a friend recreate the original Kind of Blue album cover as a pixel art image. And that's where his troubles began.
Baio had everything squared away on the musical side of the coin but he hadn't sought permission to use the photograph that appeared on the Kind of Blue cover. In February 2010 he was contacted by lawyers representing Jay Maisel, the photographer who had taken the picture, who demanded "either statutory damages up to $150,000 for each infringement at the jury's discretion and reasonable attorneys fees or actual damages and all profits attributed to the unlicensed use of his photograph, and $25,000 for Digital Millennium Copyright Act (DMCA) violations."
After seven months of negotiations, Baio agreed to pay a settlement of $32,500 and promised not to use the pixel art image again. But he also insisted that the settlement is not actually an admission of guilt. "My lawyers and I firmly believe that the pixel art is 'fair use' and Maisel and his counsel firmly disagree," he wrote on his blog. "I settled for one reason: this was the least expensive option available."
That's right: despite Baio's firm and well-supported belief that his pixel art rendition is fair use, "In practice, none of this matters," he explained. "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," he continued. "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 Bloop, minus the offending pixel art, is still available for five bucks at kindofbloop.com.