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

[Greg Miller]

I also think that Maisel acted like a complete dushbag who went all-in not so much because of the copyright - there are things called cease-and-desist letters - but because he felt like sticking it to the digital crowd.

Jay teaches digital workshops so I'm not sure where you get the "sticking it to the digital crowd" bit.

And you don't know the intent behind the suit. Better odds are his IP attorneys did not allow a cease and desist letter. Doing so sets precedent that must be followed in any future infringements suits. It basically says "I'll allow the infringement that has happened so far, just don't do it anymore". So Jay would be setting himself up for anyone else to infringe his work as long as they stop it only after he becomes aware of it and then asks them to stop.

Calling him a dushbag (sic) is a pretty douchebag thing to do unless you are privy to what was discussed between Jay and his counsel.

[Marko]

As I said in the post to which you (clarification added: engl) are replying:

1. They settled, therefore neither of them was proven either right or wrong.

All that did was to make a few lawyers richer and prevent Andy from using the art further. He is still entitled to his opinion. He settled to avoid incurring litigation costs which would have been substantially higher.

If the thing was so clear cut as it seems to be in your mind, why did Maisel settle instead of fighting it to the end? He has even more money AND he has the copyright.

Taking this thought a bit further, Maisel was in a position to prove a positive (that he has a copyright and that somebody used this copyrighted art as a basis), while Andy was expected to prove the negative (that his interpretation of Maisel's work was NOT derivative but rather transformative), which is much taller order.

And yet, they BOTH settled. Which entitles both of them to maintain their respective opinions.

2. His income is completely irrelevant in this case or any other, and so is Maisel's. Income level does not indicate one's guilt, innocence nor right. At least not yet, although we seem to be moving steadily there, but that's another ball of wax.

In fact, using someone's income to either somehow implicate sinister motives or to prove innocence or whatever else is a fairly common and quite banal logical fallacy used regularly by tabloids and other media.

3. I said very clearly I DO think that he would have lost THIS particular case had it gone to trial.

He DID obtain and pay for all the other rights for the project, which gives a lot of credence to the notion that he made a mistake in judgement about the nature of the work.

That is why I think it was an honest mistake and not an intent to steal. If you can't see the difference between the two, I don't know how to make it any clearer.

[Marko]

Jay teaches digital workshops so I'm not sure where you get the "sticking it to the digital crowd" bit.

Here a quote from Jay's article quoting Maisel's lawyer:

And it's worth noting that trying to license the image would have been moot. When asked how much he would've charged for a license, Maisel told his lawyer that he would never have granted a license for the pixel art. "He is a purist when it comes to his photography," his lawyer wrote. "With this in mind, I am certain you can understand that he felt violated to find his image of Miles Davis, one of his most well-known and highly-regarded images, had been pixellated, without his permission, and used in a number of forms including on several websites accessible around the world."

Since he stated very clearly at the top of the article that the post was reviewed by Maisel's counsel, I have no reason to doubt the authenticity of the quote.

And you don't know the intent behind the suit. Better odds are his IP attorneys did not allow a cease and desist letter. Doing so sets precedent that must be followed in any future infringements suits. It basically says "I'll allow the infringement that has happened so far, just don't do it anymore". So Jay would be setting himself up for anyone else to infringe his work as long as they stop it only after he becomes aware of it and then asks them to stop.

So why did he settle instead of fighting to the end? I don't see how a settlement sends any different message. Even worse, it is saying that "it is quite OK to infringe if you are rich enough to fight my claim as I have just demonstrated that I am not all that sure of..."

The settlement specifically proves no guilt, it simply resolves the conflict. On the other hand, had he sent a cease-and-desist, and had Jay responded positively to it (i.e. took the art down and stopped using it, same outcome as with this settlement only faster) the clear implication would have been that Jay was wrong and admitted it, so don't do it unless you want to get sued in the future.

Calling him a dushbag (sic) is a pretty douchebag thing to do unless you are privy to what was discussed between Jay and his counsel.

I didn't call him a douchebag, I said I thought he acted like one in this case. I may well be wrong, but that's how it looks to me (and using the old spelling "argument" is not too far either... ).

But as I said, that's just my opinion. We are all entitled to it, including those who called Jay various names with equally limited knowledge of the goings on.

Or to quote Jay himself again:

Reasonable discussion about the case is fine; personal attacks, name-calling and abuse are not. We're all humans here. Be cool.

[D. Bryant]

I also think that Maisel acted like a complete dushbag who went all-in not so much because of the copyright - there are things called cease-and-desist letters - but because he felt like sticking it to the digital crowd.

The word is 'douchebag' not 'dushbag' Maisel's motivation was not to stick it to the digital crowd since he shoots 100% digital and has for several years now. His motivation, IMO, was punative.

Copyright laws are very clear and not ill defined as you suggest, to cite Wikipedia as you are fond,

Copyright is literally, the right to copy, though in legal terms "the right to control copying" is more accurate. Copyright are exclusive statutory rights to exercise control over copying and other exploitation of the works for a specific period of time. The copyright owner is given two sets of rights: an exclusive, positive right to copy and exploit the copyrighted work, or license others to do so, and a negative right to prevent anyone else from doing so without consent, with the possibility of legal remedies if they do.

The legal costs are the price of doing business whether we like it or not. At some point a judge or jury may have to interpret whether infringement has occured. I assume that Andy didn't want to suffer the potential unknown cost of a court judgement.

[Marko]

The word is 'douchebag' not 'dushbag' Maisel's motivation was not to stick it to the digital crowd since he shoots 100% digital and has for several years now. His motivation, IMO, was punative.

Did you mean punitive?

Copyright laws are very clear and not ill defined as you suggest, to cite Wikipedia as you are fond...

I am? Really? Was this meant as another put down, like the spelling error one above?

I assume that Andy didn't want to suffer the potential unknown cost of a court judgement.

There is something to be said about assumptions and those who make them, a lot really, as you tend to demonstrate so often...

[Marko]

Greg,

A followup to our exchange, after looking up Maisel's work:

It was Maisel's lawyer who's words made me think that about "the digital crowd". I do have a largish bucket of ashes here and I don't mind perusing it when I realize I deserve it. But those words have been said and not denied upon review, so I am inclined to retract my statement but still leave the ashes alone...

I will also say that the douchebag thing was a bit too strong and perhaps I should use a different term to describe the feeling I got. And besides, my spell checker doesn't like it even in this form (it wants to either break it or hyphenate it) so I don't feel like attracting any more ... interventions .

As for the rest, I still think it is valid to ask why Maisel chose to settle too if he really thought he had such a bullet-proof case?

[Mike Anderson]

...
So why did he settle instead of fighting to the end?...

I think he (Maisel) got what he wanted in that Andy Baio can no longer use the pixelated version of his photo.

...Mike

[Greg Miller]

So why did he settle instead of fighting to the end? I don't see how a settlement sends any different message. Even worse, it is saying that "it is quite OK to infringe if you are rich enough to fight my claim as I have just demonstrated that I am not all that sure of..."

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. And nobody starts negotiations with the $ amount they they expect to get. That wouldn't be very smart. Perhaps they started the process expecting to get $1,000, and were happy to get anything more than that. We'll never know since we were not in the room when the attorney's devised their strategy. And like Andy himself said, settling was least expensive way to proceed. The same could have been true for Jay. The vast majority of suits never go to court. Even in slam dunk cases, there is always a risk when leaving things in the hands of a judge or jury.

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.

[Greg Miller]

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.

[engl]

If the thing was so clear cut as it seems to be in your mind, why did Maisel settle instead of fighting it to the end? He has even more money AND he has the copyright.

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.

2. His income is completely irrelevant in this case or any other, and so is Maisel's. Income level does not indicate one's guilt, innocence nor right. At least not yet, although we seem to be moving steadily there, but that's another ball of wax.

In fact, using someone's income to either somehow implicate sinister motives or to prove innocence or whatever else is a fairly common and quite banal logical fallacy used regularly by tabloids and other media.

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".

That is why I think it was an honest mistake and not an intent to steal. If you can't see the difference between the two, I don't know how to make it any clearer.

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". Andy 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.