The main argument, that would likely pass in court, is that this use can in no way be mistaken for the original image, nor can it replace it or have any effect on its market value. It's a bit more complicated than that, but that's the gist.
The main argument, that would likely pass in court, is that this use can in no way be mistaken for the original image, nor can it replace it or have any effect on its market value. It's a bit more complicated than that, but that's the gist.
This is why it's OK to sell your own performances of Beethoven's music (which has long been in the public domain) without paying anyone, but you can't freely copy a Vanessa Mae CD and hand it out to people on the street. There's no copyright to the song itself anymore, but the modern recording is still protected.
A photograph is more like a recording than it is like sheet music. If I happened to be standing right next to the photographer and intentionally snapped an almost identical shot half a second later, he couldn't sue me for infringing on his copyright.
If he had significantly transformed the tune itself, he wouldn't have even needed to pay for that, but AFAICT he produced faithful Nintendo-style performances of the original songs. That's why he needed to pay the rightsholder for the song.