[fenomas]

> He's the rights holder of a famous image and they used it

Begging the question - they made their own image, and then Maisel claimed it infringed his. You can agree with that claim if you like, but if someone made a directly comparable claim about a software license I think most of HN would rightly find it absurd.

[jakelazaroff]

It’s not begging the question. The pixel art image is unambiguously at least a derivative work of the photograph. The issue is whether it was transformative enough to count as “fair use”. I personally think the lawsuit was kinda dickish, but it was definitely Maisel’s right to do so.

[fenomas]

They didn't put a copy of Maisel's photo on their CD - they asked a pixel artist to draw it, and put that on their CD. Whether doing that qualifies as a commercial use of Maisel's photo is precisely the point under contention, so "they used [his image] commercially" is what I meant begs the question.

[unfocussed_mike]

It's not begging the question, because it was _very_ recognisably a derived work of his image.

> they made their own image, and then Maisel claimed it infringed his

This is obtuse.

The question at issue was whether it was *fair* use -- to make a fair use claim you are stipulating it is a *use*. I am not convinced either way.