Octogenarian photographer web-mobbed by copyright freeloaders

<p>Trying my hand at a nice and neutral and balanced title this time ;)</p>

<p>Anyway, <a href="http://www.jeremynicholl.com/blog/2011/07/04/how-stockbroker-andrew-peterson-aka-thomas-hawk-smeared-photographer-jay-maisel-in-andy-baio-copyright-row/">according to Nicholl's article here</a> this photographer come blogger/social media guru, Thomas Hawks, is not actually Thomas Hawks at all, and not actually a photographer at all. Well, not a professional one anyway. Which would probably explain his photography. He's a stockbroker in San Fransisco called something else.</p>

<p>And Nicholl reckons that the downtrodden artist who was supposedly victimised by octogenarian legend Jay Maisel, is not actually a downtrodden artist at all, but an internet entrepreneur who made presumably loads of dosh by creating a business relying on intellectual property rights and selling it off to Yahoo. And who now believes that other people should surrender their intellectual property rights and not make money out of them. At least not make money out of him when he breached those intellectual property rights. And some kind of mob was unleashed to go round and deface the octogenarian legend's home, quite apart from various web-mobbing.</p>

<p><a href="http://www.jeremynicholl.com/blog/2011/06/27/%E2%80%9Cjay-maisel-is-a-dick%E2%80%9D-freetard-mob-savages-octogenarian-photographer-over-copyright/">And more background information here</a>.</p>

<p>I think that's more or less it. Thoughts?</p>

<blockquote>

<p>And who now believes that other people should surrender their intellectual property rights and not make money out of them.</p>

</blockquote>

<p>I seriously doubt he (Baio) believes that. Let him <a href="http://waxy.org/2011/06/kind_of_screwed/">speak for himself</a>.</p>

<p>Actions speak louder than words - he ripped off the image, he got caught, he paid. Trying to argue that his album cover was somehow 'transformative' was IMHO just smoke and disingenuous. He wasn't creating a whole new artwork, he was ripping off someone else's work, and thought he'd get away with it. He did little more than a bit of pixellation to it. Or maybe he didn't even think about it, which is in a way no better, or maybe even worse.</p>

<p>That's fair enough, he made a mistake, he got caught, he paid. That's justice. But making a post about it trying to portray himself as the victim and whip up sympathy for himself (and presumably approbation for Maisel - clearly succesfully), is just a little bit nauseating.</p>

<p>Leo: His own words (Baio's) strike me as the opposite of damning the vandals and abusers with faint praise. Rather, he's praising them with his (so very) faint scold. Nice.</p>

<p>All very interesting, Simon. I'll just say this: Social media and blogs can and will have their worthy and crappy moments, it's just a tool. The heart of the matter is human beings are hypocritical, and more often than not, too concerned with fame (reputation) and money. I can see both side of the debate so I'll refrain from that... </p>

<p>Much better posting Simon. Thank you. Helps keep the focus on the wrong done to Maisel.</p>

>>> I can see both side of the debate so I'll refrain from that...

 

For those who say they can see both sides, I'm very curious about how one defends Andy Baio's actions.

Feel free to weigh in...

<p>It's never a good idea to post with steam coming out of one's ears. At the moment there are just a few flames left in the nostrils.</p>

 

Can someone send me an invite to Google+, please?

<p>Shiver me timbers, everyone's a JD on the Internet.</p>

<p>I think it's worth doing some research on "Thomas Hawk." The guy gets in trouble for photographing in SF MOMA. He gets in trouble for photographing buildings in San Francisco. He gets in trouble for photographing the erotic art museum. I've done the first two regularly, without ever getting in trouble. I've done things similar to the third, without ever getting in trouble. If you read his blog, you see that he seeks out these kinds of things, his latest being the bullying of an 80 year old man.</p>

<p>What's really funny is that the guy is a stockbroker and he seems pissed that Maisel makes money as a photographer. Well, dude, you have to be good to do that.</p>

<p>Just on a basic level, the idea of a stockbroker attacking a photographer for making some money seems... odd.</p>

<p>I wonder how often in his professional life he decides not to exercise some stock options because he doesn't want to lose the counterparty some money.</p>

 

<p>The stockbroker is entitled to his opinion, just as everyone is, including non-photographers and Jay Maisel. Transformative use is not a rip off, has legal antecedents, and has stood its day in court. What I don't understand is why Baio didn't go to someone with at least equally good -- if not better -- pictures of Miles Davis and infinitely cheaper. Herb Snitzer, who is still alive, comes to mind. But no matter. Baio's article seems reasonable to me, but YMOV. My only beef is with the way Thomas Hawk expressed his opinion on what transpired. That was below the belt.</p>

<blockquote>

<p>Transformative use is not a rip off, has legal antecedents, and has stood its day in court.</p>

</blockquote>

<p>I would say that transformative use nearly always is a rip-off, but I would agree that transformative use is not a breach of copyright in the US.</p>

<p>However, Baio's use couldn't be transformative, despite the smoke and mirrors arguments on his website. I wonder whether he himself really believes what he is saying, it seems highly naive - or cynical. To be transformative, you would have to do something sufficiently creative and additional to make a whole new original work of art out of it. Baio just pixellated it a bit, and stuck it on the album cover. It was just a tacky rip off, and he barely changed the original. He wasn't even pretending to create a work of art, he was just ripping off the original album cover.</p>

<p>However there are plenty of cases where an artist genuinely tried to create an original artwork on the basis of someone else's work, or at least to change it quite a bit - and the courts still decided that it wasn't transformative enough. The latest was <a href="http://www.theartnewspaper.com/articles/Patrick+Cariou+wins+copyright+case+against+Richard+Prince+and+Gagosian/23387">Richard Prince</a> and the Gagosian Gallery - who has genuine high-end artistic pretensions, but still lost his case. There was another similarish case a week or so ago, I forget the photographer/artist involved, but others will probably remember.</p>

<p>People like Andy Warhol seem to have got away with it, but you've really got to be at that untouchable level, or do something pretty original with the work to be safe. Not just run it through a Photoshop filter and bung it on the front of a product.</p>

<p>Baio really wouldn't have had a hope for his tacky cover, no matter what he says. That's presumably why he paid up.</p>

 

>>> Transformative use is not a rip off, has legal antecedents, and has stood its day in court.

 

Except what Baio did was hardly transformative; no new meaning or expression, no value added to the original.

 

>>> What I don't understand is why Baio didn't go to someone with at least equally good -- if not better --

pictures of Miles Davis and infinitely cheaper.

 

Because what he was copying was a specific album, Davis' Kind of Blue. He licensed rights to the music. Any other picture

would have made zero sense.

<p>Simon,</p>

<p>Run the Miles Davis image through every PS filter or action you own. See if you can get an image close to Baio's.</p>

<p>I know that none of my filters or actions can produce it. I would have to individually paint a majority(if not all) of the pixels by hand to emulate Baio's image.</p>

 

<blockquote>

<p>Baio really wouldn't have had a hope for his tacky cover, no matter what he says. That's presumably why he paid up.</p>

</blockquote>

<p>Have you heard the covers of the songs? Tacky cover is correct. It's a good thing that Baio and Hawk are independently wealthy, they would starve if they had to sell their stuff.</p>

<p>Then again, I could be wrong. Prince is a bigger thief, and a bigger hack than both of them multiplied.</p>

<p>He seems to have found a lucrative market for his particular flavor of feces.</p>

<p>I think everything worked out as it should. The system worked. Maisel's lawyers were too expensive for Baio's to fight. The transformative qualities if the work, if any were never adjudicated. Who knows what might have happened had it gone that far, but Baio, in spite of the allegations that he is "independently wealthy" could not afford to go that far. There was a settlement, and that's that. It occurred in the US, so it is only fitting that US copyright laws entered the picture, so to speak. The fulminations are well, fulminations, and they're dime a dozen, but like it or not, transformative appropiation has a lengthy, court-tested history in the US. Like it or not, it is and has been part of the landscape for some time.</p>

<p>Calling people names is just as infantile when done to Baio or Prince as it is when done to Jay Maisel.</p>

<p> </p>

>>> Maisel's lawyers were too expensive for Baio's to fight. The transformative qualities if the work, if any

were never adjudicated. Who knows what might have happened had it gone that far, but Baio, in spite of

the allegations that he is "independently wealthy" could not afford to go that far.

 

How can you state that so definitively? And speak to what he could or could not afford?

 

More *likely*, Baio's attorneys advised him he had no winning defense and settling was the path that made the most sense.

<p>I guess as a stock broker he is not making enough money or he can not steel it like he use to,so here he creates a none person so as to be creative ? This guy is nothing but a fool looking for all the attention he can get and we give it to him , who is really the fool in this matter. I just do not understand our way of thinking on this type of stupidity . I know this Idiot did steal photos from someone and use them as his , so he got caught with his hand in the cookie jar:<br>

We would almost have to set up another federal agency to research and catch all those abuser's of copyrights :<br>

Now I go hide in my hole of dumbness :</p>

 

Five years ago, Thomas Hawk was proclaiming "Jill Greenberg is a Sick Woman Who Should Be Arrested and Charged With Child Abuse" because of her series of crying babies. He knows that being reasonable doesn't attract viewers to his blog. It's quite clear his primary interest is stirring controversy in order to draw attention to himself and drive traffic to his site, not creating an intelligent dialogue about photography.

<p>Brad - "How can you state that so definitively? And speak to what he could or could not afford?"</p>

<p>Easy: I'm going by what he said. You can say he is a liar, I cannot without a lot more evidence. It is possible that what you say his lawyers advised him is true, but I wasn't there, and simply do not know. It is basic ignorance to deny the existence of appropriation in art history, as it is of copyright infringement. I disagree (partially) with you. I do not want, or expect to butt heads, nor attempt in the slightest to convert you (or anyone else in this thread) or look to be converted to each others' opinion, and fully realize that mine is not a popular or welcome opinion in this thread, but to make it absolutely clear, I have no side in this fight. Since nothing was decided, I have no decision to agree or disagree with, either. Like I said, the stockbroker's vitriol against JM (and all of the insults, there and here) are what I disagree with.</p>

<p>If Baio really is independently wealthy, Maisel's lawyer's settling for $32k could be read as a sign of ineptitude, generosity, or maybe <em>they </em>thought they might not win if push came to shove, but I honestly do not know, care, and it doesn't matter at this point.</p>

<p>In music, this was legally defined in a clearer way (at least regarding sampling) long ago. In the visual arts, the legal line is a lot blurrier.</p>

<p>I agree with Dixon that Hawk's style is tabloid-like, definitely works, deplorable and is allowed.</p>

>>> You can say he is a liar, ...

 

I beg your pardon? Cheap. Please don't put words in my mouth or even suggest that was on my mind.

 

>>> It is basic ignorance to deny the existence of appropriation in art history, as it is of copyright

infringement

 

Was such a denial even made here regarding that subject?

 

>>> If Baio really is independently wealthy, Maisel's lawyer's settling for $32k could be read as a sign

of ineptitude, generosity, or maybe they thought they might not win if push came to shove,

 

Or maybe they simply thought that was the appropriate remedy for Baio's infringement in consideration

of his attorney's decision to not mount a defense..

 

>>> In music, this was legally defined in a clearer way (at least regarding sampling) long ago...

 

Yup. And Baio licensed Davis' music as he should have. Odd that he didn't for Maisel's photo...

<p>"For those who say they can see both sides, I'm very curious about how one defends Andy Baio's actions. Feel free to weigh in..."<br>

One doesn't need to, as Baio did a pretty fair job of defending himself in the linked post. Agree with it or not, but there is a substantive case to be made that it's fair use.</p>

<p><em>"I think everything worked out as it should. The system worked. Maisel's lawyers were too expensive for Baio's to fight. The transformative qualities if the work, if any were never adjudicated. Who knows what might have happened had it gone that far, but Baio, in spite of the allegations that he is "independently wealthy" could not afford to go that far."</em></p>

<p>Wow, this has to be the most ludicrous thing I've read in some time. In other words, the system worked because the guy without as much money was forced to cave before the actual merits of the case could be heard? That's your idea of the system working? What if it were a case of a rich record company who had taken a photo from a random unknown photographer on photo.net, who couldn't afford to fight the record company's lawyers? I guess the system would work the other way too, wouldn't it?</p>