I have to disagree. If a work is produced by copying another then it is copying - irrespective of whether the result is regarded as indistinguishable, similar, derivative, or transformative.
Let's not redefine words in an attempt to undermine copyright.
The principle is that our right to cultural liberty, to share and build upon published works, is natural and to be protected, that reproduction monopolies that derogate from this right are unethical - however much we'd wish to incentivise the owners of printing presses to invest in the production of cultural works.
I still think that Fairey's poster is not a copy, but derivative from the photo. Crosbie seems to see the distinction but then implies that the poster is a copy, not a derivative.
This is a basic problem with copyright. The Congress and the Courts (the government) get to define what the words mean. They are slowly killing creativity as a result. They keep extending what started out as a seemingly simple distinction so that it becomes the plaything of lawyers and judges who get to change or modify what the words mean, depending on the case.
That seems to me to be a strong argument for ending copyright completely and allowing the market to decide whether the copy or the derivative work is worth paying for.
Sherwin Siy has a provocative slant on fair use, suggesting a different term to describe exactly the distinction I was thinking about in the case of the Obama poster link here
. The word he proposes is transformative, which seems to me to be a pretty fair description of what happened in this case. It is not the same thing as derivative, or at least not in all cases. Not only that, but Siy notes that the term has been used in copyright cases as being fair use.
John, there's a distinction that needs to be made:
There's making a copy (in an attempt to make the new work as similar as possible to the source work).
There's copying a work (in whole or part, even one bit) as part of the process of producing another work (that may or may not be similar).
Copyright covers the latter case (given printers would copy each other's works in whole or part). Patent on the other hand operates on similarity rather than copying - probably because the manufacturers that lobbied for monopolies knew that most inventions were obvious and easily arrived at independently (and thus copying difficult to prove).
I'll leave the arguments as to what copyright should or should not cover to those who think it has a future.