Back in 2009, Waxy.org’s Andy Baio produced Kind of Bloop, a chiptune tribute to Miles Davis’ Kind of Blue. It was one of the biggest early success stories for crowdfunding platform Kickstarter.
Today, Baio announced he had paid $32,000 in a copyright settlement — not over the music, which he licensed from the publisher, but over the album cover, a pixel art version of the iconic Kind of Blue cover photographed by Jay Maisel.
Maisel sued Baio for copyright infringement, seeking “either 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 believed he had a “fair use” defense, based on the fact that the pixel art could be considered a “transformative work” that comments on the original. Unfortunately, proving that in court would likely have cost him more than 10 times as much as he paid in the settlement.
“My lawyers and I firmly believed that I was legally in the right,” he told Gizmodo. “But it doesn’t matter, fair use doesn’t protect you unless you’re willing to pay to defend yourself.”