And then what would happen if the photographer sued EMI and Coldplay, and won a $32K settlement? I'm guessing the Internet would either be satisfied or angry that $32K is too little for such deep pockets.
I understand and agree that Jay was too vicious in this, but how is he in the wrong again?
The case is especially interesting because no large faceless corporation was involved, it was one (very wealthy) artist going after other (not very wealthy) artists.
Is there a point at which those values of money make it acceptable to take some one else's work, alter it, and re-sell it? If Maisel had settled for $10,000 would we be having this issue? What about $1000? Nothing at all?
Litigation is unfairly tilted towards those with money. Fortunately for Jay he has some. He obviously felt that Kind of Bloop's cover unfairly used his art, so he sued. I am assuming that the settlement will cover _his_ legal costs. My wild-ass guess is that $32.5K would be about right to cover filing, and negotiating a settlement with a good NY attorney.
So, if an artist feels that their work was ripped off (whether or not that is ACTUALLY the case), and they have the means to do so, do they not have the right seek litigation against the offender?
Regardless of the merit (I believe it's fair use), Maisel was not harmed by this remixed album. Purely sending a cease and desist would have done the trick, there's no reason to try and squeeze cash out of it. That's why I think he comes out looking like a dick.
The derivative examples he provides below are copies of truly iconic images, while Miles Davis cover is a pretty mediocre photo by a commercial photographer.
To your second point; the original photograph on the Miles Davis cover has absolutely become an iconic piece of American culture - I take it you're not a jazz enthusiast?
And then go search for "morrison".
And 20th for "Miles Davis": http://images.google.com/search?hl=en&biw=1400&bih=9...
"Kind of Blue" the album is incredibly famous and respected (http://en.wikipedia.org/wiki/Kind_of_Blue#Reception_and_infl...), and its album art--though not the best I've seen--is therefore a Big Deal by association, if nothing else.
Given the circumstances, an album with a very limited audience, available primarily for electronic download (there was only a physical version with this cover for Kickstarter backers), I think the commercial and legal aspects should be considered moot.
Let a thousand of these tiny suns bloom. The world would be better, not worse and that is the only criterion that needs to count. All analogies are off, because we don't need to be arguing the general case. They all fail to consider that this is a work by an accomplished artist whose reputation or commercial interest are in no way threatened by this use of his work. That is the specific case under consideration and that is why he is utterly wrong.
And that's just one tiny element.