There’s a fable that is told in many different versions around the world. In some European versions the hero is a wandering clown, but in the version I first read as a boy it was Ōoka Tadasuke, the 18th century Japanese magistrate who has many folktales attached to him. The story goes: an innkeeper overhears a poor student tell a friend that he always eats his rice as the innkeeper is preparing his fish, and thus the smell improves his meal. The angry innkeeper brings the student before Ōoka, demanding payment for the stolen smell. Ōoka responds by having the student spill his pocketful of coins from one hand to another, and tells the innkeeper that the smell of fish has been repaid by the sound of money.
The popularity of this story speaks to a deep, common-sense understanding that there are some things of value that are beyond commerce. The value of these things lies in part to their having no ownership, to the way they float in the air, literally or figuratively. Unfortunately, this doesn’t mean that indignant, entitled, or greedy individuals won’t try to assert their claim.
Making the Internet rounds today is this disturbing piece on Waxy.org. Andy Baio, a tech enthusiast, made a series of chiptune versions of Miles Davis’s tunes on Kind of Blue; when he distributed the files, he included a version of the Kind of Blue cover that had been highly pixelated. The original photographer of the Davis portrait, Jay Maisel, sued Baio for copyright infringement. The case settled out of court for $32K.
I’m not going to go into the legal issue here—I have strong feelings about the stupidity of the current state of intellectual property law and I’ll bore you all some other time—but I do think that the story poses the question, what motivates an artist to take such disproportionate and vindictive action against a fan? It’s not money—Mr. Maisel is one of the most successful commercial photographers in the world. In Baio’s account, he quotes Maisel’s lawyer:
“He is a purist when it comes to his photography,” his lawyer wrote. “With this in mind, I am certain you can understand that he felt violated to find his image of Miles Davis, one of his most well-known and highly-regarded images, had been pixellated, without his permission […]”
With all due respect, I’m certain I can’t understand how Maisel’s hurt feelings are worth $32K. What’s being referenced here is the noxious concept of Moral Rights, the idea that an artist’s right to preserve the integrity of a piece of work can and should prevent anyone else from editing them in any way—including, apparently, using the original work as a springboard for something new. The American system of copyright does not, in fact, recognize Moral Rights (it’s mostly concerned with people getting paid), but the romantic ideal that somehow the artist’s intent should trump future artists’ intent forever and ever is anti-Art. Everything is derivative. That’s the way culture happens.
I make a part of my living as a designer and illustrator. I have used existing works of art as inspiration, as reference material, as grist for the mill. Maybe some other artists have taken bits and pieces from what I’ve done and made something new. I don’t know of transformative works, but I have found places where my art was used unaltered without attribution or payment. If someone were to use one of my illustrations commercially, I would ask for payment; if they were to use it in a way I found offensive, I would ask them to stop.
But really? Most of the time, it just makes me smile—because I know my work is floating out there along with all the other smells.
