I think I can understand Baio's logic: Photographs & Music are two very different mediums. A music composition is made to be played. And part of that is that

I think I can understand Baio's logic: Photographs & Music are two very different mediums. A music composition is made to be played. And part of that is that multiple people will probably be playing it. The fact that the instrument choice used on the album was unique did not make it any different from any other cover album. And thus permission was sought. A photograph on the other hand is made to be viewed & that's not how it was being used in this case. It was being used as the inspiration for a new derivative work of art which played off the concept of the music. I can totally see why Baio was not worried about licensing the original. I can also totally see how this was a mistake in practice.