Arguably no modern musical form until hip-hop was as unabashedly appropriative as jazz.
This is one of the two great ironies of the recent brouhaha that erupted over reputed copyright infringement in regard to the cover of the Miles Davis album Kind of Blue. The album was released in the summer of 1959, and its cover was shot by legendary photographer Jay Maisel. The image, which shows a close crop of Davis playing trumpet, was given the retro block-pixel treatment a half century later, in 2009, as part of the compilation album Kind of Bloop. Kind of Bloop is a chiptune project organized by Andy Baio that took each of the five songs on Kind of Blue and rendered them in the low-processing-power manner of early video games. The tracks were each recreated by a different musician: “So What” by Ast0r, “Freddie Freeloader” by Virt, “Blue in Green” by Sergeeo, “All Blues” by Shnabubula, and “Flamenco Sketches” by Disasterpeace. If Pac-Man had gobbled its dots in the streets around the Five Spot, Kind of Bloop is what it would have sounded like.
And last September, Maisel got $32,500 from Baio in an out-of-court settlement as a result of the usage. The reason this is news now is because on June 23, Baio went public with the legal situation, writing on his blog, waxy.org, in a post titled “Kind of Screwed,” that he’d only recently gotten past what he described as the “nerve-wracking” nature of the entanglement and found himself able to write about it. (Baio defended himself with support from the EFF.)
The images up top show, from left to right: the original cover with Maisel’s photo, the cover of Kind of Bloop, and an Nth-generation pixelation that Baio made when trying to discuss the intersection of law and art. The intention of the exaggerated pixelation in this third image is to ask when, exactly, would a derived image be considered “transformative,” which, like “parody,” is protected under the law.
The Internet likes a good feud, and an underdog. Toss in matters of copyright, and inevitably the thing became a tempest, not just in comments and on social networks, but also at Maisel’s Manhattan home, which was, according to gothamist.com, plastered with blown-up pictures of the Kind of Bloop cover.
When Kind of Bloop was first released, I made make note of the cover, because at least one depiction of it looked more like Louis Armstrong than it did like Miles Davis (I also noted a period-style parallel to a contemporaneous Timbaland project). I noted an instance in which a participant in Bloop, Sam Ascher-Weiss, who records as Shnabubula, felt that Time magazine, in an interview, had egregiously misquoted him. And in May 2009, when the project was first announced, I linked to the initial fundraising effort: Kind of Bloop was one of the first pay-before-it’s-made albums on Kickstarter, where Baio was the CTO, or Chief Technology Officer.
There are perfectly good reasons for Maisel to have pursued his legal rights, if only because — to my knowledge — failure to defend a copyright can be used in the future as evidence of disregard for that specific copyright. To those who attack Maisel, I would say the following: If you agree that copyright is screwed up, as I do, and as I believe Baio does, you can’t entirely (key word: entirely) blame someone for trying to work within that system to the best of their ability.
That said, the original claim from Maisel’s attorneys seems absurdly high, as does the final settlement — patently so, you might say. (Baio: they were seeking at one point “damages up to $150,000 for each infringement at the jury’s discretion.”) Baio secured rights to use Davis’ music; the photo is not evidence of willful copyright infringement. And I agree with Baio’s take, which he elaborates on clearly at waxy.org: Current copyright law puts fear in the minds of anyone who wants to transform existing work. That, plain and simple, is messed up.
If you allow that more than finances must be at stake for the stakes to seem so high, then where does the litigious overkill originate? It’s an attempt at control over one’s work that often smacks of desperation. It’s quite possible that excessive defense of copyright protection and demands for its extension reflect a mistaken hunger for immortality. And it’s worth considering how many of the “immortal” artists, or at least the ones who died long ago yet whose work continues to have cultural importance, are individuals about whom we in fact know nothing little to nothing, people like Johann Sebastian Bach and William Shakespeare. They are not immortal. Their work may yet prove to be.
The loudest voices in this haven’t been the plaintiff or the accused. It’s the red-in-the-face peanut gallery arguing over it online. And it’s likely that the majority (key word: majority) of the blog-comment defenses of stringent copyright protections in regard to appropriation in music and visual art are made by individuals who have never profited directly in a significant way from copyright and likely never will, but who state their case out of some misplaced sense of imagined camaraderie. Rather than wrestle with the complexities of a legal system that has, arguably, helped keep them out of the marketplace, they act as empaths for the perceived misfortunes of the far more fortunate. This syndrome is whatever the opposite of slumming might be called.
Some antagonists to Baio’s project have gone so far as to describe the pixelated cover as “plagiarism,” which is absurd; there is no evidence of the Kind of Bloop participants trying to pass off the work as entirely their own. Others take offense at the concept of a chiptune adoption of Davis’ work. These detractors seem to miss the irony that this conversation is taking place in the realm of jazz: a genre in which out-of-context appropriation, the transformation of riffs and themes from pre-existing musical works, is part of its DNA.
And the second irony is this: Electronic music is often derided by acolytes of 1950s-era Miles Davis, who remain offended by albums like Bitches Brew and the work that followed it — and yet this time around the anti-electronic anger appears to have nothing whatsoever to do with when he, like Dylan, “went electric.”
Kind of Bloop remains available for purchase, though without the now outlawed cover, at kindofbloop.com, and the original fundraising plea is still viewable at kickstarter.com.
7 thoughts on “Kind of Bloop/Blue: Some Say, “Freeloader.” Others Say, “So What?””
The $32,500 was an out-of-court settlement, not damages awarded by a judge.
Q: Thanks for that correction. I’ve edited the piece.
(Note: I’d initially written at the start of the third paragraph, “And last September, Maisel was awarded $32,500 in damages due to Baio’s usage.” I hadn’t intended the word “awarded” to mean a judge or jury had weighed in, but that is clearly how it would end up being read. So, thanks to Q’s welcome correction, I have now replaced that sentence with this one: “And last September, Maisel got $32,500 from Baio in an out-of-court settlement as a result of the usage.”)
One thing has always bothered me about the “Kind of Bloop” project was that they went out and secured the rights to the music, but not the photo. Was this a slight on photography as a work of art? Or just a major oversight? I just don’t see how someone could be so diligent about securing music rights for the purposes “manipulation” that they’d just forget about photography rights for the purposes of “manipulation”. It just doesn’t make sense.
In many of the stories about “Kind of Bloop”, bloggers have been bringing up the Shepard Fairey “Obama Hope” story which rankles me greatly. Fairey outrightly lied for several months and I believe set “fair use” back years, if not decades. I really don’t see the connection between “Bloop” and “Hope”.
BTW before anyone thinks me a corporate copyright shill, I am a huge supporter of Creative Commons music.
David: In Baio’s telling, in the “Kind of Screwed” post I link to, he felt at the time, and still feels, as do his EFF lawyers, that the pixelation counts as fair use. That’s his stated opinion.
My opinion? I’m still thinking about it.
I’ve had a hard time figuring this part out, too. They did to the image exactly what they did to the music. If they were confident of fair use for the photograph, why weren’t they equally confident that what they did to the music was fair use, and no permission was needed from the outset?
I’m thankful that Andy Baio shared this story with us, as it gives us details on a situation we all benefit knowing about, but rarely are offered any details. But, it does seem that they approached the music and the photography as though copyright applies differently to each.
The “Nth-generation” image, although after the fact, would have been the ideal image to use for the cover, considering the genre, IMHO.
I started to write a rough response to the question of musical composition versus commercial portrait photography and it got long, so I made it a new post: