Why does altering a photograph differ from altering a song? Or does it?
The discussion that followed my recent post about the Kind of Bloop/Kind of Blue legal melee involved some questions, each politely put if strongly felt (exactly the sort of comments appreciated at this website), about why exactly it was that altering Miles Davis’ music seemed more egregious to some parties than did the alteration of Jay Maisel’s cover photograph. That is, why the holder of the copyright for Davis’ music deserved repayment, while perhaps the holder of the copyright for the photograph did not. I am, it feels at times, among those parties.
For background: Kind of Bloop is a remake of Miles Davis’ Kind of Blue album, with the original five jazz songs redone as “chiptune” music — that is, as music that sounds like it might emanate from a video arcade circa 1984. To complete the package, the original album’s cover art was processed to transform it to the blocky style called “pixel art.” The remake album was released in 2009, on the 50th anniversary of the original album’s release. In September 2010 Andy Baio, the creator of the Bloop project, agreed in an out-of-court settlement to pay $32,500 in fines to the photographer, the famed Jay Maisel, who had shot the iconic cover of the Blue album. Only in late June of this year did Baio go public with his legal entanglement.
At the risk of sounding like President Obama discussing gay marriage, I realized in the process of responding to these questions that my opinion on the subject of copyright regarding portrait photos versus music is still developing. Please understand that the logic I lay out below is at best exploratory. Partially it is exploring the issues at hand, and partially it is exploring my thoughts and thought process on the subject.
Though copyright protection has been repeatedly extended, it feels still like 50 years is a good long period of time to profit from anything before it becomes part of common vernacular, visual or otherwise. (And yes, feel free to ask me again when I am 75 and someone decides to make use of something I made when I was 25.)
No offense intended to photography, but framing a photo of a man as charismatic as Miles Davis seems like a far different proposition than composing original tunes such as those on Kind of Blue.
The musical notes in those pieces of music are Davis’ own, while the visual source material in Maisel’s photo is not his own.
Of course, this cuts both ways, which is where my still-developing status on the subject (aka wavering) comes in. (Wavering is when one considers flip-flopping to be a cognitive process.)
If you spend a lot of time listening to Kind of Blue, as with any music, great or not, you begin hear to the influences of others, some pronounced, some deeply seeded and coded. Rarely if ever are those influences repaid directly and financially for their effort.
One might say, by way of comparison, the subjects of photos by Jay Maisel and Annie Liebovitz do not profit financially from the ongoing sales of those works.
To acknowledge the way that prior work, that source material, figures in the development of music we habitually call “original” is to draw a comparison, rough as it may be, between the source of those melodies, and the subject in a photograph.
It is also to consider the process of creative sublimation that is required by a musician to make the source material his or her own, versus the lesser burden on a portrait photographer to make the subject his or her own.
It is this very matter that is at the heart of remix debates following the birth of hip-hop. Hip-hop absorbs its influences in a more literal, fixed manner than did most of the music that preceded it, and it has literally paid the price for this, with the systematized legal process that was developed for clearing samples.
I’ve argued here that there may be a case to be made that portrait photography may not necessarily deserve the same degree of protection as musical composition. I’d also say that sound in general tends to play second fiddle, as it were, to visual images in culture, and that is because images are indelible in our minds in a way that music is not. And yet we protect certain visual images in different ways than we do others. Logos, graphic design elements, typography, photography, architecture: these are all handled differently by the courts.
And if we handle different visual elements differently, it’s not clear why we should necessarily correlate a musical composition and a portrait photograph — in particular a portrait photograph whose primary role was as a piece of commercial packaging.
In the end (to the extent there is an end, since as I said up above, I am still pondering the subject), I have no firsthand knowledge of why Andy Baio, the creator of the Kind of Bloop project, understood the need to pay the publishers of the music, and yet did not explore paying the photographer who shot the cover image. But I do have some sense of the disparity.
And the way it has all played out seems to be less a critique of Baio’s thinking process, and more a critique of just how broken our copyright system is, and of the financial threat that hovers over individuals who wish to take the culture around them and make something of it. As I’ve said before: the laws as they’re currently enforced protect the interests of companies (and individuals) who actively territorialize our memories and then charge us to access them.
(Animated GIF image of the American flag found on Tom Moody’s tommoody.us website, where he writes frequently on electronic music, pixel-intensive art, and copyright.)
