Jay Maisel, whose photograph of Miles Davis appears on the cover of the 1959 recording Kind of Blue, threatened to sue Andy Baio, the maker of Kind of Bloop (an 8-bit version of Kind of Blue), whose cover is a pixelated version of Maisel’s photograph. Maisel’s attorneys asked for “statutory damages up to $150,000 for each infringement at the jury’s discretion and reasonable attorneys fees or actual damages and all profits attributed to the unlicensed use of his photograph, and $25,000 for Digital Millennium Copyright Act (DMCA) violations.” Baio settled out of court for $32,500.
In a post on the matter, Kind of Screwed, Baio makes a compelling case that his use of the cover photograph falls under “fair use.” (Maisel’s conduct, I would suggest, falls under “heartless.”) Baio also wonders what he might use for new cover art. I’d suggest the muted post horn of Thomas Pynchon’s novel The Crying of Lot 49. The image might suggest here both Miles Davis’s trumpet and the ways in which copyright law can wrongfully inhibit creative efforts.
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