Duncan Davidson (404’d sadly):

As a photographer, I’m a very strong supporter of a photographer’s right to profit from their work. For example, if you want to make money by using my work and I’m not willing to gift you that use, I believe that you should pay me. On the other hand, as a lifelong creative that’s fascinated with the process of making creative works, I believe that allowing creative transformations of artistic work is necessary and essential for culture.

Which of these points should take precedent over the other in this case? That’s a good question. I think the work is transformative enough that it would qualify as fair use. Look carefully and you can see that it’s not just a derezzed image. It was crafted in a creative way, down to the pattern in the tie. Do you agree? It’s OK if you don’t. We could talk about it over beers. Only a judge’s opinion would really matter.

I think that in this case, probably everyone involved was wrong at some level.

Here’s what I bet happened. Andy didn’t think to clear the rights to the picture, a troubling oversight considering he thought enough to clear the rights to the music. Is photography less of an art than music? Anyway, big mistake. Jay gets lawyered up when maybe a phone call would have worked. Andy gets lawyered up when maybe he should have asked for forgiveness. With lawyers, things got outlandishly expensive and everyone looks bad.

(Via Daring Fireball again)