Bullet hole brushes by obsidiandawn.com
In at least one work on Maisel's portfolio site, the image is largely made up of someone else's sculpture. Perhaps he had the sculptor's permission; I doubt he bothered to secure the permission of every architect whose work he's photographed. Of course all these photos are transformative. But all these photos rely upon the existing work of other artists, some to a greater extent than they rely upon any choice Maisel made or technique he employed. Whether Baio's work was transformative is something we can argue about but not something that will ever be decided in court.
When I read discussions of this situation here and elsewhere I'm struck most by the type of comment that begins "Well, I make my living as an artist, and I think..." More often than not, the comment goes on to defend Maisel and any and all claims of the rights of the artist against an antagonistic world. The implication is that the interests of the artist—and by extension, of Art—are served best by the broadest interpretation and application of copyright holders' rights. But is this true? Are artists better really better off playing hardball? And perhaps more importantly, how does such behavior serve the culture at large?
One word that I've seen a lot in defenses of Maisel is "respect"—as in, people need to respect the work that photographers do. That would be a reasonable point if Maisel's approach had been proportionate to the imagined harm. As it stands, it's like supporting Old Man Potter at the end of the block who likes to take out neighborhood dogs with a shotgun when they enter his yard. He's only defending his property.
The word I'd like to stress is "humility." All arts are derivative, but photography especially relies on photomechanical processes for its production. As much art as the photographer brings to the process, she still depends on pre-existing subjects. These includes the myriad work of architects, fashion designers, engineers, and even other photographers that make up the scenes she captures. I would hope that photographers, perhaps more than other visual artists, would understand that art is fodder for art, and that if we make it necessary to contact, ask permission from, and pay every possible rights holder out there, we are pricing a lot of people out of making a lot of work, and that's also bad for artists—and everyone.