I am really disappointed in the reaction of Maisel, and other photographers who're supporting the result of the lawsuit. Even if Baio copied the image pixel-by-pixel, what harm was done? Did anybody buy the Bloop because of the album artwork? Or because of the music? Come on, people! Show some common sense! A fine of a few 100 dollars would have been enough.
I, for one, was glad to see an Internet celebrity whacked by an individual artist. As somebody else pointed out, the $32.5k he got probably went straight to the artist's lawyers. It was pretty telling that Baio licensed the music but not the cover art. The blog article never explains why his chiptune versions of the music don't count as fair use. And he admits he didn't accept the copyright infringement claim immediately but stalled for seven months.
I am almost certain a different, happier arrangement could have been worked out if he'd agreed to license the artwork right at the beginning.
I am almost certain a different, happier arrangement could have been worked out if he'd agreed to license the artwork right at the beginning.
Maisel has said that he would never license this artwork for that purpose. So there would have been no licensing deal.
"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." [1]
Of course he's going to say there's no price he'd have licensed the image at - he was trying to get damages out of Baio, so why put a limit on how much his damages were?
Yes, I was aware of that quote. Baio's article is (intentionally?) vague on when he offered to license the art. Once you cross a certain threshold, emotions take over and the artist might have just felt violated and decided to "take his ball and go home". If he offered to license after a few months of saying "fuck you" (from the artist's perspective), it is easy to imagine a post-fact justification like the above to deny a license.
Even if Baio's first respnse itself offered to license, at the very least the "happier arrangement" would have been that $32.5k would have still been in Baio's pocket. In the absence of information about when Baio offered to license, I'd remain unconvinced that no licensing deal would have been possible.
You have a point about the music. The songs were handcrafted by musicians and still needed a license. It is logical that the same is true for the cover, even if it was handcrafted by a painter.
On a tangential note: this is well worth a watch: http://www.everythingisaremix.info/watch-the-series/ No wonder pop music today is so crappy.