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Expense and Uncertainty Plague 'Fair Use' Defense
Andy Baio of Waxy.org recently organized a chiptune tribute project for Miles Davis' acclaimed Kind of Blue album. What was intended as a creative labor of love turned into a nightmare for Baio when a copyright claim demanded exorbitant sums while glossing over fair use. He writes, "I went out of my way to make sure the entire project was above board, licensing all the cover songs from Miles Davis's publisher and giving the total profits from the Kickstarter fundraiser to the five musicians that participated. But there was one thing I never thought would be an issue: the cover art." Despite strongly believing that his pixelated version of the original cover art fell under fair use, Baio eventually decided his cheapest option was to settle out of court, paying the original photographer $32,500. "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."
In their demand letter, they alleged that I was infringing on Maisel's copyright by using the illustration on the album and elsewhere, as well as using the original cover in a "thank you" video I made for the album's release.
Even if you agree that the pixelated version of the album cover was fair use (I don't), his case would have been damaged by the fact that he used the original cover elsewhere.