Mike Johnston of The Online Photographer favors Jay Maisel’s cause against Andy Baio:
I side with Jay in this one. That is, I think the Kind of Bloop cover is indeed a case of infringement and does not qualify as Fair Use … the issue hinges on “derivative” vs. “transformative” works of art. You’re allowed to transform (create something new on the shoulders of the old); you’re not allowed to derive (copy, even loosely—even in another medium). Sometimes it does take a jury to decide which is which. Sad but true.