For what it’s worth, here’s Baio’s side of the story: http://waxy.org/2011/06/kind_of_screwed/

Now, as all this was going on, a very popular photo blogger named Thomas Hawk out in San Francisco started writing all kinds of nasty things about Maisel.  People were incited to vandalize the front of Maisel’s building in Manhattan in defense of Baio, that kind of thing. A buddy of mine sent me this link this morning adding yet more fuel to the fire. Big giant flaming arrows of vitriol apparently being shot from all sides.

It’s all very ugly and people have been asking me what I think of all this. I’m not going to get into the mess that has precipitated because honestly I couldn’t care less. But I do have some thoughts on the original case which I figure I might as well air out. I’ll preface this by saying that I know Jay Maisel and Thomas Hawk though I have never met Mr Baio. Both of them have been nothing but nice to me, so this is not a comment on them as human beings. Also, none of what I’m going to say has much to do with what is legally right according to current laws, more my opinion of how it should be in an ideal world.

I think that the idea of making Kind of Blue with 8bit synth instruments is a silly, fun, and good idea.  Would I actually listen to it?  No.  I’m one of those crazy people with an $8000 stereo.  Lo-fi doesn’t appeal to me, but Kind of Blue is such a classic album, good on Andy Baio for making something happen.  I can’t imagine that he ever intended to make very much money from it, instead it sounds like it was more a silly labor of love.

While I think he would have been better off if he had asked Jay to use the photo first, Maisel’s lawyers apparently said it wouldn’t have mattered because he would never have approved of it anyway.  I’m also not entirely convinced that it’s the photo any more.  The artist, from what I understand, didn’t shrink the cover photo down to 64 pixels, instead he redrew it pixel by pixel to closely approximate the original photo on a much smaller, very low resolution scale. Is that still the picture? Baio does have an interesting section of his blog post where he keeps deconstructing it down to a handful of pixels to make the case of just where the line is when it’s completely unrecognizable as the original image. It’s hard to say.

Someone recently did set of chalk drawings based on my Motion series of photographs. Are they they same as my photos? Well they’re inspired by my photos, anything more specific than that is a judgement call.  If those drawings suddenly got picked up and the guy made a million dollars, yes I would be pissed. But mostly because I’d want people to know of my work.  In the Baio case, there’s no chance that the new 64 pixel version will ever compete with Jay’s original photograph in mindshare. That cover is one of the most recognized in the history of Jazz and it’s over 50 years old. Most of the people who worked on it are dead, the photographer happens to still be alive. It’s a cultural touchstone, it’s part of our collective history. I know it’s not legally true, but with something like that photo and that album, I think it should be in a place somewhere approaching public domain for derivative works. But the discussion of the absurdity of long-term copyright is a giant kettle of fish that I won’t get into for fear of pissing off a gaggle of lawyers down in Orlando.

If all of this happened to me, I would have contacted Baio, say I was flattered, explain my side of the story and then ask for a piece of the profits. I would not have asked that he immediately cease using the image and pay me damages. It’s both bad press in this day and age, especially for something so obviously marketed to very vocal geeks on the internet, and it’s also the nice thing to do.

I guess I’m too nice most of the time, but I think that we in the first world all need to step back and take a breath every once in a while. None of this stuff is life or death people.