Rips off Jay Maisel and gets caught but doesn't think he did anything wrong....

[PViapiano]

It was a blatant copy of the photograph, period.

As someone may have mentioned earlier, if the copyright holder does not defend an infringement they may relinquish a large part of the right to do so in the future.

He could've used the "color block" version example of the cover he shows on the blog and achieved the same feel. He supposedly did the right thing with the music, why not the artwork?

Case closed...

PS..read Lawrence Lessig's books on copyright in the electronic age. He definitely takes the anti-copyright stance for the commons, but that's exactly why I wanted to read them. Always good to hear a persuasive argument to keep your mind open and alive to new ideas that may be contrary to your thinking.

[Mike Anderson]

...I just do not think this was a "honest mistake". Adam seems quite knowledgeable about copyright. In his own words, he is a "big fan of borrowed/remix culture", and he has been hosting "The Grey Album". When taken down, he continued linking to the page "Illegal Art" for the MP3 downloads:
http://waxy.org/2004/02/danger_mouses_t/
("The Gray Album" is pretty much one big copyright violation, "sampling" the entire White Album by The Beatles).

He is not the kind of guy who is oblivious to the potential consequences of "borrowing" an album cover for something he sells.

Hmmm. The plot thickens. Little-mister-innocent-victim-of-the-rich-evil-photographer has a history of fighting for

the universe of creative works stifled by the United States' archaic copyright laws and the corporations that lobbied for them

(from the above link). I had some sympathy for him (Andy Baio) but not after reading the above linked page.

...Mike

[Marko]

Filing the suit preserves to right to so so in the future, if necessary, for other infringements. Settling simply says the two party found a mutually satisfactory resolution outside the courts. It does not diminish the ability to protect copyright going forward, which failing to file the suit would have done.

[...]

What happens when attorneys are involved rarely reflect what the person would do left to their own devices. Attorneys do what is prudent to protect their client. I'm sure the attorney's knew the best options for protecting Jay's intellectual property and his pocketbook.

Sending a cease-and-desist letter in no way prevents filing the lawsuit in the future if the result is not what the sender expected, nor does it diminish one's ability to protect copyright. In fact, it can even enhance the chances of winning because it demonstrates the "good faith", if such a thing matters any more at all in the current climate.

Successful CAD can save a lot of time, effort and money to everybody involved. Unsuccessful one can always be and usually is escalated to a full-blown lawsuit.

On the other note, protecting one's pocketbook has next to nothing with protecting one's other interests. It's simply the most cost-effective cop-out for all involved. If an attorney thought that the lawsuit had better than even odds of winning, I'm pretty certain he would go for maximizing his client's and by his own pocketbook and not settle in for less.

People who have been around the NY photography scene a while know that Jay gets around and has a reputation for generally being a giving and nurturing person. It is unfortunate that the actions of someone else put him in the position to be criticized.

Well, I haven't been around either NY nor photography "scene" at all, so I don't know Jay. All I know about him was the way he (re)acted to this situation and I did not like it at all. I didn't know Andy either prior to this either but I did liked his stance to all this much better.

There's (usually) a reason why first impressions are so powerful.

[Mike Anderson]

...
On the other note, protecting one's pocketbook has next to nothing with protecting one's other interests. It's simply the most cost-effective cop-out for all involved. If an attorney thought that the lawsuit had better than even odds of winning, I'm pretty certain he would go for maximizing his client's and by his own pocketbook and not settle in for less....

But it's not the attorney's decision it's the client's.

...Mike

[Marko]

You will have to ask Maisel about that. Perhaps he just not an evil guy, as you seem to presume he is? I don't know the details of what has happened between the two, or what motives have driven either side to do what they did. Neither do you.

I so love these loaded rhetorical questions that simply have to toss them back to those who ask them...

"If he did no wrong, why did he settle?"

Well, duh, "if he's so sure he's right why did HE settle"? And if he's just been protecting his interests, why would he leave some sure money on the table? Because he's a nice person?

I agree. But, your initial message gave the impression of Andy being some poor underdog, both due to the "annual salary" (I thought the "somebody" referred was Andy) part, but even more due to the last paragraph, "squashing somebody out of existence".

I was very careful not to imply Andy was poor or something - that's why I used the word "somebody's". As for squashing somebody out of existence is exactly why most lawsuits of this nature are filed in general - to force a settlement even when the odds are iffy, simply because it is cheaper to settle then stand your ground.

Of course I can distinguish between the two, no need to insinuate that I can't. I just do not think this was a "honest mistake".

Not agreeing with someone's opinion is very different from not understanding it.

I didn't insinuate anything, you said yourself that you could not understand the way I came to my opinion. That's a very old - and cheap - rhetorical trick that risks either leading people to take your word seriously or perhaps the opposite of it. Which of these two outcomes would you prefer?

[Marko]

But it's not the attorney's decision it's the client's.

...Mike

Yes, they both had attorneys and they both decided to settle. This way neither of them is guilty and they are both wrong, each in their own way.

Had they gone to the end, one would have won. Apparently neither of them was sure enough to go that far.

[Mike Anderson]

Yes, they both had attorneys and they both decided to settle. This way neither of them is guilty and they are both wrong, each in their own way.

I don't understand this.

Had they gone to the end, one would have won. Apparently neither of them was sure enough to go that far.

You're assuming being unsure is the only reason to settle. It's not. If you can achieve your goal through settlement, then that is a good reason to settle. It happens all the time. We only know one party wasn't happy with the settlement, because he said so in his blog.

...Mike

[Greg Miller]

Sending a cease-and-desist letter in no way prevents filing the lawsuit in the future if the result is not what the sender expected, nor does it diminish one's ability to protect copyright. In fact, it can even enhance the chances of winning because it demonstrates the "good faith", if such a thing matters any more at all in the current climate.

Successful CAD can save a lot of time, effort and money to everybody involved. Unsuccessful one can always be and usually is escalated to a full-blown lawsuit.

Sorry that you are not getting it. Sending a cease and desist letter sets the precedent that that is how you handle infringements (its OK- just stop now and all is forgiven). You are granting that right to future infringers. The next infringer can cite the precedent and demand the same outcome. Perhaps you should talk to an IP attorney before you write your next reply. I can suggest a good one if you need a referral.

Let's talk about what typically happens in a copyright infringement. The attorney will draft a cease and desist letter stating the infringement has occurred, demand payment for lost profits, and demand an accounting of of all profits derived from the use of the copyrighted image (as opposed to Marko's thinking that a cease and desist letter does not talk $). From the sounds of it that is exactly what Jay's attorney's did. And they stated a dollar amount that was considered high, which helps elicit an accurate accounting of the profits that shows a lower $ amount of profit. It seems a bit silly to blame Jay for following his attorneys' advice, which was standard practice for this type of event.

[Ramiro Elena]

As an artist (musician) heavily involved with the 8-bit community and knowing most of the people involved I can say all projects of this kind are based on admiration to the artists being homaged and respect. There was no intention to steal or degrade the original photographer.
Most of our music and art is released through net labels for free. Our gigs are free too. You need to visualize who is really behind all this "evil-doing." Most of the time, 18 year old nerds.
So yes, it is in fact a mistake from someone who's part of a warm hearted community that missed on that small detail and now is being crushed big time.

This has little to do with copyright infringement in my opinion and more with getting the dough when you see the chance (by the photographer and of course... always the lawyer).

Kikstarter is a platform for those who don't have access to big publishers. Sort of like when you try to sell photography books through Blurb because you would never get picked by a "real" media publishing company.

Legally wrong, morally... not so in my opinion. But who cares, right? We're talking MONEY!!!

[Marko]

Sorry that you are not getting it. Sending a cease and desist letter sets the precedent that that is how you handle infringements (its OK- just stop now and all is forgiven). You are granting that right to future infringers. The next infringer can cite the precedent and demand the same outcome. Perhaps you should talk to an IP attorney before you write your next reply. I can suggest a good one if you need a referral.

Let's talk about what typically happens in a copyright infringement. The attorney will draft a cease and desist letter stating the infringement has occurred, demand payment for lost profits, and demand an accounting of of all profits derived from the use of the copyrighted image (as opposed to Marko's thinking that a cease and desist letter does not talk $).

Maybe I am indeed not getting it.

"It" being the tendency to get personal and make things up. It is so great to be graciously forgiven in advance, especially since I already said what I had to say about the topic and don't really care for "getting" this kind of "discussion".

So I'll bow out at this point and let you carry on all you want.