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June 23, 2011 06:05 pm

Expense and Uncertainty Plague 'Fair Use' Defense

Andy Baio of Waxy.org recently organized a chiptune tribute project for Miles Davis' acclaimed Kind of Blue album. What was intended as a creative labor of love turned into a nightmare for Baio when a copyright claim demanded exorbitant sums while glossing over fair use. He writes, "I went out of my way to make sure the entire project was above board, licensing all the cover songs from Miles Davis's publisher and giving the total profits from the Kickstarter fundraiser to the five musicians that participated. But there was one thing I never thought would be an issue: the cover art." Despite strongly believing that his pixelated version of the original cover art fell under fair use, Baio eventually decided his cheapest option was to settle out of court, paying the original photographer $32,500. "Anyone can file a lawsuit and the costs of defending yourself against a claim are high, regardless of how strong your case is. Combined with vague standards, the result is a chilling effect for every independent artist hoping to build upon or reference copyrighted works."

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