A Chilling Effect: Lawsuits and Remix Culture
Web / June 26, 2011
By now many of you are probably familiar with Andy Baio's recent legal saga, as chronicled in Kind of Screwed. If you're not, here it is in a nutshell: Baio created a cover for a digital album based on this work of photographer Jay Maisel. While not trying to profit directly from the photograph, it is obviously indebted to (and relies upon) the source work. After some court proceedings, both agreed that Baio would pay Maisel more than $30,000 for the infringement. This, apparently, was the "least expensive option." Ouch. I'm not going to offer my own uninformed opinion about the legality of the work (although I am far more sympathetic toward Baio than Maisel) but I do know that this story might reach further than just the people immediately involved. Like here, for example.
At the end of 2009, I also released a digital EP on the internet. Initially, this EP had a cover. I'm not going to link to it now, but it was clearly derived from an existing work, in this case a screenshot of a classic 1980s computer game. I have since taken down every version of the image that I could find, although I imagine if you scour the depths of the web, you'll be able to find it.
Does the music require the image? No, but neither did Baio's. Basically, I just thought it'd be cool. I'm sure he did too. Do I have any evidence that this game's creators are as litigious as Maisel? No. But do I want to wager thousands of dollars to find out? Also no. I'd rather just remove the image. I'm not even selling the music, but the judgement against Baio was so out of line with what the EP actually cost, I doubt that fact matters.
What's most interesting to me about this is that, initially, I did this without thinking about legal ramifications, photo licenses, rights holders or copyright. I imagine the same is true for Baio. He probably just thought, as I did, that the image was kind of cool; why not tweak it up a bit and make something just as cool, but a bit different from the source? Many of us probably think that way. With sites like mlkshk and pinterest, it's easy to save and share stuff that we think is cool. And with powerful personal computers, it's just as easy to modify before we share.
It's funny that this comes to light just a few months after Everything is a Remix became a widely linked site. I hope this doesn't soon mean that everything is a lawsuit.