Thanks for the thoughtful reply.

My thinking is that this still misses the issue — we don’t need to resort to substantial similarity (or being virtually identical) in order to presume the defendant had access to the original work, because we can use software and common sense to prove the defendant *actually copied* the work and made a derivative work out of it.

If the steps towards making a derivative work are meaningful enough, then either the image won’t be similar anymore or the new work will be transformative or something else that would help it win on fair use.

It’s certainly a thin copyright. But if you showed me the two images, say, one at a time, then on the following day you showed me only one of them and asked me to say whether it was plaintiff’s or defendant’s, I would not be able to recall because they are so similar.

Something that I find puzzling is the different attitude in the Fairey case re the Obama Hope poster. The judge warned him that he was about to lose (despite the fair use defense) and that he should settle ASAP. https://www.wired.com/2011/01/hope-image-flap/

To me, Fairey’s version is much less similar to the base photo than the two here. It’s arguably transformative, and definitely does not compete in the same markets as the original work.

Lastly, a photo of the president feels more artistic at first . . . but given that there are so many photos of the president during every single public appearance, it feels like they also ought to have a somewhat thin copyright. But maybe it’s not fair to say that someone has diluted their own copyright “thickness” by being prolific!

They didn’t just mirror and crop the image. They mirrored the images, increased the negative space between the two illustrations, selectively cropped out the spring that was the focus of the original, removed the descriptive text, and added in measurements. That’s more than enough to defeat the virtually identical standard necessary to enforce a copyright this thin.

So not only was defendant copying the image, we can surmise that he knew that it wasn’t permitted because he took (crude) steps to avoid detection!