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.