Fair use blues: Too expensive to fight for your rights
Original photo © Jay Maisel. Low-resolution images used for critical commentary qualifies as fair use. (Usually! Sometimes!)
Kind of Bloop is a chiptune tribute to Kind of Blue by Waxy. All the musical samples on the album were very carefully cleared but the use of the album cover was not. Waxy’s assumption, that was probably correct, was that the transformative nature of his image constituted fair use. Unfortunately for him Jay Maisel, the photographer who took the original image, didn’t agree and sued seeking, “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.”
In the end a settlement was reached, but Waxy is very clear that this is not an admission of guilt. It was just too much of a financial burden to fight the case. This is a shame mostly because some clear legal precedents regarding fair use argued on transformative grounds would be very useful. Creativity through secondary use has been part of human culture for hundreds of years (at least) and is mushrooming in this digital age. If successful transformative use is going to be penalised then we have to rethink our digital culture.
