It’s easy to write off Heello as a Twitter clone. Created by the founder of Twitpic, the shameless knockoff looks and behaves like a stripped-down version of Twitter, down to the tweetspings, followerslisteners, and retweetsechos.
But it’s shaping up to be more than that. Creative fakesters are using the blank slate to turn Heello into the parallel-universe version of Twitter.
A world in which Heello was cofounded by Ev Williams (@ev), who acts as CEO and gives away free iPads to Heello users.
Where CNN Breaking News (@cnnbrk) reports all the news in ALL CAPS, including breaking news reports like “JUSTIN BIEBER” and “I JUST UNLOCKED THE ‘I’M ON A BOAT’ BADGE ON FOURSQUARE.”
A world where Mark Zuckerberg (@MarkZuckerberg) is a profane, sexist womanizer.
And where major web services (past and present) flirt and snark at each other, like @Tumblr, @Color, @4chan, and @Pownce.
Of course, Heello wouldn’t be complete without its own Social Media Experts. “Please Check Out My Blogpost ‘How To Drive Qualified Traffic To Your Blog Via Heello.'”
Heello is like a blank-slate Twitter with no moderation or verification. I doubt the Heello team wanted or expected this behavior, but they inadvertently created a perfect playground for parody and meta-commentary, like Uncyclopedia or Encyclopedia Dramatica‘s parallel world versions of Wikipedia.
It should be fun to see how they respond.
Update: Marshall Kirkpatrick, lead writer of ReadWriteWeb, comments, “They told me they were going to remove any of these that weren’t clearly satires. That’s a real shame and shows a lack of sense of humor.” The first casualty was @ev, which was deleted shortly after this post was published.
Marco Arment just linked to this great article about how everyone plays Monopoly wrong. If you read the actual rules, it’s a completely different game than the one you likely grew up with — one that moves much, much quicker.
Five things I never knew about Monopoly’s official rules:
1. If a player decides not to buy a property, it immediately goes up for auction by the bank and is sold to the highest bidder. This blew my mind.
2. Houses must be built, and sold, evenly across a color-group. For example, you can’t build three houses on Park Place without having two houses on Boardwalk first.
3. It’s the property owner’s responsibility to ask for rent. If you forget to ask for rent before the end of the next player’s turn, you’re out of luck.
4. Rent is doubled on properties without houses in a monopoly.
5. Income tax is calculated from your total net worth, including all properties and buildings, not just your cash. And you have to decide whether to pay 10% or $200 before you add it up.
While these official rules gradually disappeared from common play, other unofficial “house rules” came to take their place. We always put funds collected from Chance/Community Chest cards into a “kitty” that was given to whoever landed on Free Parking. Many others gave $400 when landed on “Go,” or didn’t allow rent to be collected while in jail.
Many of us learned Monopoly like we learned the rules of dodgeball or rock-scissors-paper — spread by word-of-mouth from family and friends.
It’s interesting to see a commercial game see the same sort of cultural variation as other children’s folk games.
But maybe that’s appropriate for a game that was itself derived from another board game. Contrary to popular belief, Charles Darrow didn’t invent Monopoly in 1933 from scratch. It was heavily based on The Landlord’s Game, an innovative board game patented in 1904 by Lizzie Magie, to be a “practical demonstration of the present system of land-grabbing with all its usual outcomes and consequences.”
The Landlord’s Game and its variations like “Auction Monopoly” and “The Fascinating Game of Finance” spread by word of mouth throughout the early-20th century with evolving rules and hand-drawn boards, popular among the Quakers and used as a teaching aid for university students.
In 1933, Charles Darrow played a homemade version of The Landlord’s Game printed on oil cloth, saw the market potential, and tried to patent the new “Monopoly” as his own. After finding great success selling handmade versions, he sold the rights to Parker Brothers. Parker Brothers bought Magie’s patent for $500 to have an undisputed claim to the board game, but was threatened by other popular competitors and homemade variations. Through a process of litigation, acquisition, and quiet settlements during the late-1930s, Parker Brothers wiped all the other derivative versions of The Landlord’s Game off the map.
By the 1970s, Parker Brothers’ revisionist history was canon — the official Monopoly rules and a 1974 book on the history of the game stated that the game was created solely by Charles Darrow.
So, when someone says you’re playing Monopoly wrong, tell them you’re playing your own version… just like Darrow did.
I’m a regular at Meat Cheese Bread, my favorite sandwich shop in Portland. Even though I’m sick and feel like hell, I ventured out to pick up a to-go order today, because their egg salad sandwich makes everything better. John, the owner, was working the counter.
Me: Can I make a suggestion?
John: Sure.
Me: You guys should make a sweet tea.
John (emphatically): No.
Me: Why?
John: Because it’s disgusting. I make all the iced tea myself. Simple syrup’s over there. If you want to ruin it, go ahead.
Some people would get turned off by this, others would be downright pissed. But this is exactly what I like in a business, and it’s why I eat there at least once a week.
John’s singular, uncompromising vision is why the food is so damned great. He’s not trying to make a restaurant that makes everyone happy; he built a place that he’d want to eat at, and if you don’t like it, piss off.
The same goes for the web. I’d rather use a service that has a strong, single-minded vision, even if some of the decisions aren’t exactly how I’d want them, than a washed-out, milquetoast service created by committee, designed to meet market demand, that tries to make everybody happy.
Another way to put it: if someone out there doesn’t hate your product, it’s probably not worth using.
Over at the Expert Labs blog, I did some digging into the unusually large response to the President’s first tweet on @whitehouse during the Twitter Town Hall. In the process, I played around using Twitter Lists as tags, some phrase analysis, and more fun with charts.
I’m cross-posting it below, for posterity. Hope you enjoy it!
During the Twitter Town Hall collaboration with the White House, President Obama posted a single tweet to @whitehouse, asking this question:
This was historic for two reasons: it was the first time that a President has ever posted directly to a social network from the White House. Second, it was the first time the President’s directly asked for feedback from users of a social network.
There was some great analysis of the Twitter Town Hall activity, including TwitSprout’s infographics and Radian6’s detailed postmortem on Wednesday. Both focused on the #askobama questions that were asked before and during the Town Hall. Using ThinkUp’s data collecting responses to the President’s first tweet, I’d like to focus specifically on responses to the President’s question above.
We’ve been using ThinkUp to archive and analyze the White House’s Twitter account since May 1, 2009 and, as we’ve shared before, have gathered a pretty amazing corpus for analysis. With that, it’s useful to see how people responded to this new kind of personal, inquisitive behavior relative to past activity.
The short version: the response to the President’s tweet drew more than three times the number of responses as the nearest runner-up, and more than six times more replies than anything posted in the last year. There were over 1,850 responses to his deficit question, topping the two Grand Challenges questions from April 2010 combined. You can see them all on the White House’s ThinkUp.
By comparison, the chart below shows the top ten most-replied tweets since the White House started using Twitter.
Replies
Tweet
Date
1,857
in order to reduce the deficit,what costs would you cut and what investments would you keep – bo
It’s worth noting that eight out of the top 10 most replied were all posted in the last six months, suggesting that the White House’s New Media team is increasing its effectiveness in engaging its audience on Twitter, even as that audience grows.
This tweet was the most effective the White House has ever been at drawing a behavior response from its followers. This is interesting, because it differs from typical tweets in two ways:
It is personal (using the President’s “- bo” signature)
It asks a concrete question
While some of the response could be attributed to the focus on the Twitter event, it’s likely that continuing this question-answer process with a personal touch leads to deeper and richer engagement.
Who talks to @whitehouse?
To help determine the subject expertise for each of the respondents, I used the Twitter API to retrieve the lists that each person belonged to. My hope was that the list names could act as tags, like on Delicious or Flickr, to help group and categorize individuals.
Because lists are often used for personal use, the most frequently-used list names include some unhelpful ones like “friends” and “people,” but many can be used as useful categories like “politics,” “writers,” and “tech.” Here’s a Wordle of the top 100 most frequently used.
Lists that @whitehouse responders belong to
These lists let us examine the responses from different facets. Here are the top five responses from people most tagged with “politics” or “political”:
mommadona
mommadona
.@whitehouse War, as a political tool, is no longer an option in the 21st Century. Make it so. #ASKOBAMA #dem #p2 #p21
lheal
Loren Heal
@whitehouse Investments? You mean spending. When the government spends, it crowds out private investment rather than encouraging it.
tlanehudson
Lane Hudson
@whitehouse Fair tax based on ability to pay. End war spending.
SeamusCampbell
Seamus Campbell
@whitehouse Police forces for each cabinet-level department #askobama
lisalways
lisalways
@whitehouse Peacetime defense should be cut, minimize war in Afg & end soon. Stop Bush Tax cuts. Push hard for advance on infrastructure
Compare that to people tagged with “tech” or “technology”:
colonelb
David Britten
@whitehouse Eliminate the federal department of education and return education to the states. #askobama
sharonburton
Sharon Burton
@whitehouse Health and education are the conditions for prosperity. Cut tax benefits to corporations. They benefit from the conditions.
TotalTraining
Total Training
@whitehouse less international support and wars more focus on domestic concerns like education for the young and old
atkauffman
andrew kauffman
@whitehouse costs need to be those that citizens do not need, loopholes, high costs of congress etc investments in learning and CHILDREN
As you’d expect, the responses are very different from people tagged “green”:
LynnHasselbrgr
Lynn Hasselberger
@whitehouse cut defense, big oil subsidies, tax extension on wealthiest, corp tax loopholes. Invest in teachers + cleanenergy #AskObama
CBJgreennews
Susan Stabley
. @whitehouse Will you support the end of government subsidies for oil and energy companies, esp. those that have record profits? #askObama
ladyaia
Susan Welker, AIA
@whitehouse Money given to farmers of GMO products and more support of organic farmers. Our health costs would be reduced by better food.
SmartHomes
Daniel Byrne(Smarty)
@whitehouse jobs and budget fix: massive release of oil from strategic reserve to lower oil price. Effect: No cost stimulus package 4 every1
dcgrrl
DC Grrl
@whitehouse I would definitely cut subsidies to energy companies, and I’d keep infrastructure and education investments. #askobama
It’s surprising how useful these results are, considering how limited Twitter Lists are exposed throughout the interface. This suggests that Twitter List memberships can be a useful measure of determining a user’s authority in subject areas, which we’ll be looking into for ThinkUp.
The Answers
When asked where to reduce spending, 479 people (about 25%) included some variation of “war,” “defense” or “military.” Other popular suggestions included raising taxes/ending the Bush-era tax cuts (11%) and tax subsidies for oil companies and farming (6%). People seemed to be evenly split between those who want to protect Medicare and Social Security and those who want to see it overhauled.
With regards to where to invest for the future, the most popular was education, with about 17% of responses including terms like “education,” “school” or “teachers.” 6% want to see renewed investments in energy, 5% on infrastructure projects, and 2% in health care. (Surprisingly, only 15 people mentioned decriminalizing marijuana.)
For the full set of responses, you can browse them all on ThinkUp. Or, if you like, the entire dataset is available on Google Docs or embedded below.
Conclusion
For us, it’s been fascinating to see an American President use social media to directly ask questions and get answers. We hope other government agencies are taking note of how powerful the combination of a direct question, authentic voice, and an audience can be for democracy. And these lessons extend to the private sector, as well: every company can learn how to better interact with their community from this national experiment in democracy.
The next step, of course, is to make sure those answers are useful enough to inform decision-making. If our representatives are listening, and people feel they’re being heard, everyone benefits.
We’re happy for people to reuse our findings. Any questions about these results can be addressed to [email protected].
TL;DR version: Last year, I was threatened with a lawsuit over the pixel art album cover for Kind of Bloop. Despite my firm belief that I was legally in the right, I settled out of court to cut my losses. This ordeal was very nerve-wracking for me and my family, and I’ve had trouble writing about it publicly until now.
Note: I posted this on Twitter and Maisel’s Facebook wall before it was deleted, but I’ll repeat it here: I understand you may have strong feelings about this issue, but please don’t harass him publicly or privately. Reasonable discussion about the case is fine; personal attacks, name-calling and abuse are not. We’re all humans here. Be cool.
Still want the full story? Read on.
(Note: This post was reviewed by both my and Jay Maisel’s legal counsel.)
The Long Version
Remember Kind of Bloop, the chiptune tribute to Miles Davis’ Kind of Blue that I produced? 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.
Before the project launched, I knew exactly what I wanted for the cover — a pixel art recreation of the original album cover, the only thing that made sense for an 8-bit tribute to Kind of Blue. I tried to draw it myself, but if you’ve ever attempted pixel art, you know how demanding it is. After several failed attempts, I asked a talented friend to do it.
You can see the results below, with the original album cover for comparison.
In February 2010, I was contacted by attorneys representing famed New York photographer Jay Maisel, the photographer who shot the original photo of Miles Davis used for the cover of Kind of Blue.
In their demand letter, they alleged that I was infringing on Maisel’s copyright by using the illustration on the album and elsewhere, as well as using the original cover in a “thank you” video I made for the album’s release. In compensation, they were 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.”
After seven months of legal wrangling, we reached a settlement. Last September, I paid Maisel a sum of $32,500 and I’m unable to use the artwork again. (On the plus side, if you have a copy, it’s now a collector’s item!) I’m not exactly thrilled with this outcome, but I’m relieved it’s over.
But this is important: the fact that I settled is not an admission of guilt. My lawyers and I firmly believe that the pixel art is “fair use” and Maisel and his counsel firmly disagree. I settled for one reason: this was the least expensive option available.
At the heart of this settlement is a debate that’s been going on for decades, playing out between artists and copyright holders in and out of the courts. In particular, I think this settlement raises some interesting issues about the state of copyright for anyone involved in digital reinterpretations of copyrighted works.
There are a lot of myths and misconceptions about “fair use” on the Internet. Everyone thinks they know what fair use is, but not even attorneys, judges, and juries can agree on a clear definition. The doctrine itself, first introduced in the 1976 Copyright Act, is frustratingly vague and continually being reinterpreted.
Four main factors come into play:
The purpose and character of your use: Was the material transformed into something new or copied verbatim? Also, was it for commercial or educational use?
The nature of the copyrighted work
The amount and substantiality of the portion taken, and
The effect of the use upon the potential market
For each case, courts take these factors into account and render a verdict, occasionally contradicting the opinions of past judges and juries.
The crux of our disagreement hinges on the first factor — whether the Kind of Bloop illustration is “transformative.”
Transformative Works
John Taylor deconstructs iconic movie posters at Film the Blanks. Many are available for sale in poster form.
In his influential paper on fair use, Judge Pierre N. Leval wrote, “Factor One is the soul of fair use.” Stanford’s Fair Use Center asks, “Has the material you have taken from the original work been transformed by adding new expression or meaning? Was value added to the original by creating new information, new aesthetics, new insights and understandings?”
From the beginning, Kind of Bloop was a creative experiment. I was drawn to the contradiction between the textured, subdued emotion in Kind of Blue and the cold, mechanical tones of retro videogame music. The challenge was to see whether chiptune artists could create something highly improvisational, warm, and beautiful from the limited palette of 1980s game consoles. (I think we succeeded.)
Similarly, the purpose of the album art was to engage both artist and viewer in the same exercise — can NES-style pixel art capture the artistic essence of the original album cover, with a fraction of the resolution and color depth of an analog photograph?
It reinforced the artistic themes of the project, to convey the feel of an entire album reimagined through an 8-bit lens. Far from being a copy, the cover art comments on it and uses the photo in new ways to send a new message.
This kind of transformation is the foundation of fair use. In a 2006 verdict, the court found artist Jeff Koons’ use of a fashion photo “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”
I don’t think there’s any question that Kind of Bloop’s cover illustration does the same thing. Maisel disagreed.
The second fair use factor is the nature of the copyrighted work. Works that are published and factual lean towards fair use, works that are unpublished and creative towards infringement. While Maisel’s photograph is creative, it’s also primarily documentary in nature and it was published long before my illustration was created.
With regard to the third factor, although the illustration does represent the cover of Kind of Blue, it does so at a dramatically reduced resolution that incorporates few of the photograph’s protectable elements. Courts routinely find fair use even where the entirety of an image is used.
The fourth factor considers the impact on the market value of the original work. It’s obvious the illustration isn’t a market substitute for the original: it’s a low-resolution artistic rendering in the style of 8-bit computer graphics that is, at best, of interest to a few computer enthusiasts.
And it’s worth noting that trying to license the image would have been moot. When asked how much he would’ve charged for a license, Maisel told his lawyer that he would never have granted a license for the pixel art. “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, and used in a number of forms including on several websites accessible around the world.”
Back to Reality
The AP sued Shepard Fairey for basing his famous Obama Hope poster on a news photo. He faked evidence in the ongoing case, damaging his fair use defense, leading to an out of court settlement.
In practice, none of this matters. If you’re borrowing inspiration from any copyrighted material, even if it seems clear to you that your use is transformational, you’re in danger. If your use is commercial and/or potentially objectionable, seek permission (though there’s no guarantee it’ll be granted) or be prepared to defend yourself in court.
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.
The End
Mike Stimpson recreates Malcolm Browne’s Pulitzer-winning 1963 photo of a Vietnamese monk’s self-immolation.
It breaks my heart that a project I did for fun, on the side, and out of pure love and dedication to the source material ended up costing me so much — emotionally and financially. For me, the chilling effect is palpably real. I’ve felt irrationally skittish about publishing almost anything since this happened. But the right to discuss the case publicly was one concession I demanded, and I felt obligated to use it. I wish more people did the same — maybe we wouldn’t all feel so alone.
If you feel like it, you’re still welcome to buy digital copies of Kind of Bloop (without the cover art) at kindofbloop.com. Donations can be made to the EFF, and you’ll get a rad 8-bit shirt for joining. And if you have any ideas for an alternate album cover that won’t land me in court, bring it on!
Special thanks to my lawyers (Chris, Erica & Ben), the EFF, Fred von Lohmann, and the team at Kickstarter for moral support.
More Fun with Art Appropriation
I’m collecting examples of reinterpretations of copyrighted works, like the ones interspersed in this post. Here’s some more I found:
Kirby Ferguson’s Everything Is A Remix is a thought-provoking and entertaining demonstration of how remixing is fundamental to all creativity, with hundreds of examples from Star Wars to Apple.
I’ve turned off comments, but I’d love to hear your thoughts and any more relevant examples. Send me an email or instant message, or find me on Twitter.
