The copyright Q&A symposium got me thinking about the use of album art, and I came across an interesting case where the creator of a pixel art album cover for the 8-bit reworking of Miles Davis’ Kind of Blue was threatened with legal action.

Andy Biao settled, paying photographer Jay Maisel US$32 500, however he believes given his transformation of the photograph, as well as his intentions and effect on the original’s market, he was covered under the American principle of Fair Use. Obviously this doesn’t apply in Australian law, however the principle of ‘fair dealing’ makes room for consideration on the purpose and character of the use as well as the effect on the potential market. Given it was the album art on an 8-bit tribute to an album released over 50 years ago, Biao’s argument still stands up.

Biao said he settled because it was the most financially sensible thing to do. It’s scary how someone who created a jokey tribute album had to pay $32 500 because it was cheaper than voicing his defence in court. I think the main point in this is what Biao concludes with, and what was touched on in the symposium – it can turn out a lot cheaper to seek permission, even for works you believe might fall under the “vague standards” (as Biao called them) of fair use and fair dealing, rather than risking it.