Why does altering a photograph differ from altering a song? Or does it?
The discussion that followed my recent post about the Kind of Bloop/Kind of Blue legal melee involved some questions, each politely put if strongly felt (exactly the sort of comments appreciated at this website), about why exactly it was that altering Miles Davis’ music seemed more egregious to some parties than did the alteration of Jay Maisel’s cover photograph. That is, why the holder of the copyright for Davis’ music deserved repayment, while perhaps the holder of the copyright for the photograph did not. I am, it feels at times, among those parties.
For background: Kind of Bloop is a remake of Miles Davis’ Kind of Blue album, with the original five jazz songs redone as “chiptune” music — that is, as music that sounds like it might emanate from a video arcade circa 1984. To complete the package, the original album’s cover art was processed to transform it to the blocky style called “pixel art.” The remake album was released in 2009, on the 50th anniversary of the original album’s release. In September 2010 Andy Baio, the creator of the Bloop project, agreed in an out-of-court settlement to pay $32,500 in fines to the photographer, the famed Jay Maisel, who had shot the iconic cover of the Blue album. Only in late June of this year did Baio go public with his legal entanglement.
At the risk of sounding like President Obama discussing gay marriage, I realized in the process of responding to these questions that my opinion on the subject of copyright regarding portrait photos versus music is still developing. Please understand that the logic I lay out below is at best exploratory. Partially it is exploring the issues at hand, and partially it is exploring my thoughts and thought process on the subject.
Though copyright protection has been repeatedly extended, it feels still like 50 years is a good long period of time to profit from anything before it becomes part of common vernacular, visual or otherwise. (And yes, feel free to ask me again when I am 75 and someone decides to make use of something I made when I was 25.)
No offense intended to photography, but framing a photo of a man as charismatic as Miles Davis seems like a far different proposition than composing original tunes such as those on Kind of Blue.
The musical notes in those pieces of music are Davis’ own, while the visual source material in Maisel’s photo is not his own.
Of course, this cuts both ways, which is where my still-developing status on the subject (aka wavering) comes in. (Wavering is when one considers flip-flopping to be a cognitive process.)
If you spend a lot of time listening to Kind of Blue, as with any music, great or not, you begin hear to the influences of others, some pronounced, some deeply seeded and coded. Rarely if ever are those influences repaid directly and financially for their effort.
One might say, by way of comparison, the subjects of photos by Jay Maisel and Annie Liebovitz do not profit financially from the ongoing sales of those works.
To acknowledge the way that prior work, that source material, figures in the development of music we habitually call “original” is to draw a comparison, rough as it may be, between the source of those melodies, and the subject in a photograph.
It is also to consider the process of creative sublimation that is required by a musician to make the source material his or her own, versus the lesser burden on a portrait photographer to make the subject his or her own.
It is this very matter that is at the heart of remix debates following the birth of hip-hop. Hip-hop absorbs its influences in a more literal, fixed manner than did most of the music that preceded it, and it has literally paid the price for this, with the systematized legal process that was developed for clearing samples.
I’ve argued here that there may be a case to be made that portrait photography may not necessarily deserve the same degree of protection as musical composition. I’d also say that sound in general tends to play second fiddle, as it were, to visual images in culture, and that is because images are indelible in our minds in a way that music is not. And yet we protect certain visual images in different ways than we do others. Logos, graphic design elements, typography, photography, architecture: these are all handled differently by the courts.
And if we handle different visual elements differently, it’s not clear why we should necessarily correlate a musical composition and a portrait photograph — in particular a portrait photograph whose primary role was as a piece of commercial packaging.
In the end (to the extent there is an end, since as I said up above, I am still pondering the subject), I have no firsthand knowledge of why Andy Baio, the creator of the Kind of Bloop project, understood the need to pay the publishers of the music, and yet did not explore paying the photographer who shot the cover image. But I do have some sense of the disparity.
And the way it has all played out seems to be less a critique of Baio’s thinking process, and more a critique of just how broken our copyright system is, and of the financial threat that hovers over individuals who wish to take the culture around them and make something of it. As I’ve said before: the laws as they’re currently enforced protect the interests of companies (and individuals) who actively territorialize our memories and then charge us to access them.
(Animated GIF image of the American flag found on Tom Moody’s tommoody.us website, where he writes frequently on electronic music, pixel-intensive art, and copyright.)
Well said. I especially liked the Obama snark and I’m a supporter of him.
One of the things that kills me about copyright laws is the length of time. Patents last about 14 years, but copyrights much, much longer.
How in the world does that make any sense.
Thanks. The combination of “I love declarative sentences” and “one’s thinking process is the subject” helped me noodle my way through it.
For a while there I was stymied. I don’t have an opinion on this? How could that be? I feel strongly about it, don’t I?
I don’t think it makes sense, either, what you ask, about patents vs copyright. Though, it is an interesting situation. We tend to think of “business” (as represented by “patents”) being prioritized over “culture” (as represented by “copyright”). But even with that as the norm for a country with capitalism as its foundation, we do collectively seem to understand that businesses are built on serial iterations that stand on the shoulders of precedent accomplishments, whereas we do not seem to collectively appreciate that culture is also built on precedent accomplishments.
It’s an interesting argument. I’m not sure yet if I’m convinced. On the one hand, taking a photograph is a fairly trivial task. On the other, taking a great photograph is something a bit trickier. The front cover photo for Kind of Blue makes for a memorable, evocative image, unlike say the back cover photo for Kind of Blue, despite both being photographs of Miles Davis. So I’m not sure we can downgrade the art as such.
Do documentary arts have less cultural weight than creative arts? I’m not especially fond of attaching copyright to field recordings, and have waived copyright on any I’ve ever made public, yet I’ve encountered plenty of phonographers who disagree with that position.
No arguments here against the count that copyright extension has made copyright law destructive. It really is a shame what it’s become. I’m not quite 40, and yet I wouldn’t care if stuff I did fifteen years ago was no longer my own.
Yeah, I’m not saying it’s trivial, any more (see Chip’s subsequent response) than I’m equating cellphone Instagram users with Maisel. There’s a lot of grey area in between the extremes of professional and snapshot.
What I am asking — well, among clearly many other things — is why must we equate specifically commercial portrait photography with original music composition, if we don’t even associate commercial portrait photography with other visual arts, like the ones I list up top?
Sure, one answer is: Well, we should protect all those just as much as we do photography. Perhaps so. Or: perhaps it’s the other way around.
I’m not sure a legal separation between “portrait photography for the sake of commercial packaging” and “portrait photography for the sake of portrait photography” and “other kinds of photography” is warranted.
A picture like Maisel’s may have been commissioned for the album cover, but absent the package and extra design elements like cropping or the title text, it is just a photograph unto itself. Lots of preexisting photographs/illustrations are later licensed for commercial design, but I don’t think that invalidates the work’s previous identity. And I’m not comfortable with the idea that any work should be treated differently because it was commissioned for a specific commercial application. What’s interesting about the Kind of Bloop cover is that it was a rendition of just the photograph, and not the full commercial package.
I’m not down on Baio et al for their approach to the photograph though, I just had trouble accepting the fair use argument for one part of the project when it appears they didn’t think it would fly for the other part of the project.
But my biggest take away from Baio’s story was that the costs of fighting against copyright claims moot any theoretical points made subsequently. There’s a case to be argued here, it’s not obvious which party is the aggrieved. But the costs prohibit that argument, favour one side over another unjustly.
Sorry, but I must vent a little. I am bothered by the proliferation of digital cameras, because, as someone who has studied and continues to work to perfect his craft, the idea of all these people thinking they are photographers is irritating.
Photography is what I do. I’m certainly not at Maisel’s level and I don’t mean to sound elitist, but it is a craft and can be art. It takes a large amount of study and work to even begin to make a well done photograph. It is a profoundly technical art whose technique should never show. When a person practices at a certain level, taking any photograph is never a trivial act. There are hundreds of variables being considered at any moment, much like a great solo from an improvising jazz musician.
There are a significant differences between a work by Maisel and any snapshot taken on any camera digital or not. If you’d like to know what they are, bring them to me, buy the beer, and I’ll happily go over them. You do have several hours, don’t you?
On the other hand, you’re absolutely right about copyright in this country now.
Thanks, Chip. Doesn’t sound rant-like to me. It’s considered and backed-up with examples.
This sentence of yours will likely be the one I’ll be chewing on for some time: “There are hundreds of variables being considered at any moment, much like a great solo from an improvising jazz musician.” I am sure this is the case. That’s a helpful reminder for people participating in this discussion.
Hi, Marc and all, As a practical matter, copyright claims exist wherever there is money to be made. Images have the same protections as music but we don’t think about them as much because the crazy amounts of cash associated with, say, a top selling hiphop record generally don’t exist for commercial illustration. That’s why Maisel’s heavy handed response surprises–how much money could the chiptune project possibly be making? Maisel has an interest but is it a $32,500 interest? Ultimately he has the power to withhold the image altogether (which seems to have happened). The settled-on amount probably covered the legal expense of suing. Pure speculation but maybe Maisel just hated this use of his photo (with no credit), wanted to stop it, and this is what it takes to get anything to happen in our current system.
Thanks for weighing in, Tom. And thanks (readers of this post in the first half day or so of its existence might have noticed) for responding to my request for an edit of the animated GIF that removed some of the blank space at its bottom.
No prob. As I noted in my email, the blank space was the flag pole which pixelates as white space at that resolution!