An interesting viewpoint, but I think the differentiation here lies in the degree of "artistic" creation. Put 10 photographers in a room with Miles Davis and you'll get 10 pretty distinct photographs of the man. Have 10 people create a pixelated version of a photograph, and you'll have 10 pretty similar results.
Creating a pixelated version of this photograph is more akin to taking a photograph of the Mona Lisa - sure you can get a cool angle or do it with infrared film to get a different color palate, but it's still a picture of someone else's original work. You wouldn't say that the Miles Davis cover photo is "based on a Miles Davis concert", but rather it was created _at_ a Miles Davis concert.
Similarly, in music, remixing a song can be a very creative process - but it is still a derivative work in that it wouldn't exist without the original which was created "from scratch".
(Disclosure: I am/was a photographer who used to earn a living solely from licensing my photos for editorial purposes)
Edit: I'm not attempting to discuss copyright laws (which are pretty clear), but rather the philosophy and justification behind the creation and copying of artistic works.
Creating a pixelated version of this photograph is more akin to taking a photograph of the Mona Lisa - sure you can get a cool angle or do it with infrared film to get a different color palate, but it's still a picture of someone else's original work. You wouldn't say that the Miles Davis cover photo is "based on a Miles Davis concert", but rather it was created _at_ a Miles Davis concert.
Similarly, in music, remixing a song can be a very creative process - but it is still a derivative work in that it wouldn't exist without the original which was created "from scratch".
(Disclosure: I am/was a photographer who used to earn a living solely from licensing my photos for editorial purposes)
Edit: I'm not attempting to discuss copyright laws (which are pretty clear), but rather the philosophy and justification behind the creation and copying of artistic works.