Thoughts on Copyright
Not being a copyright holder of any sort, I side with Baio, even after several IP lawyers opined that the album art would’ve almost certainly been deemed derivative in court. It’s entirely possible that Baio was in violation of copyright law. My problem is with the law itself.
My Two Complaints
First and most concretely, it seems impossible that Baio inflicted $150,000 in damages to Maisel. Kind of Bloop sells for $5. If Maisel were to receive $0.50 for each sold copy — which seems high; is the cover art one-tenth the value of the entire album? — that means Baio would’ve sold 300,000 copies. I simply can’t imagine such an obscure, experimental project selling anywhere near that well. Hell, Kind of Blue is the best-selling jazz album in history, and it just cleared 4 million copies after selling for forty-nine years. And how many sales did Kind of Blue forfeit to its lo-fi counterpart? Not many, I’ll wager.
But I’ll put my speculations aside. This is really what galls me: Jay Maisel took that photograph in 1959, and he’s been receiving royalties as the copyright holder ever since. Maisel is still being paid, litigiously or otherwise, for a piece of work that he created over five decades ago.
Maybe this irks me so much because I’m a developer. Software just doesn’t age well. My work from five years ago is essentially valueless. Windows XP? That’s ten years old! Its installation discs should be in museums! Can you imagine using any piece of current software in 2060? Ludicrous.
I’m not discounting the artistic value of Maisel’s photograph. It’s iconic, historic. I don’t believe, though, that it’s worth $32,500 in 2011.
Oh, don’t be silly! I don’t have a solution. It’s clear that we as a society don’t know how to apply current copyright and patent law to new technology. There’s no way we can continue awarding software patents with lifetimes measured in decades (cf. Lodsys). We’ll bury innovation in the very system that means to foster it.
Given that, why does it make any more sense to grant rights on a photograph for so obscenely long? To promote creativity? Maybe Andy Baio could have or should have designed a different cover for Kind of Bloop. But why? The design was pitch-perfect: a bit tongue-in-cheek but still artful, just like all the music on the album.
At any rate, I purchased a copy for myself. It’s weird.