It’s been discussed before and it will be discussed again: at what point does a derived idea become sufficiently removed to be called an idea of its own? This is seen in music in the form of remixes being considered derivative works of the original song even if they sound nothing alike. In visual art, the progression of ideas between artists is prolific and has contributed to artistic movements and motifs. In literature, fanfiction and historical fiction commonly are derivatives of other books (and recorded history in the case of historical fiction).
Today, we see another example occurring right before us. BMW hosted a contest to promote their MINI line and asked users for submissions of work that promoted MINI. After the conclusion of the contest, the winning entry was a photograph:
The work was no doubt chosen for it’s aesthetic qualities and elegant presentation. Soon after the winner was declared, however, the second place winner informed the contest administrators that the image was actually a derivative from another image. Although, the original was published under a creative commons license, the stipulations of the license were that derivative works had to be attributed to the original, which this was not. In this instance, the derivative artist is clearly in the wrong for not observing the original’s fairly relaxed CC license. Luckily this factor made the case fairly cut and dry. If it weren’t for this, the judges would have been forced to decide if the derivative work was creative enough to be called a work of its own or if they had to disqualify it. The original, below, is slightly different.
Now, it’s easy to see the striking similarity between the two images… so what should be done? While I don’t have that answer, I do know what shouldn’t be done. If you were talking to a philosopher or lawyer, they might tell you that in order to solve this problem it would make the most sense to standardize a formal definition of what makes a derivative work “different enough”. This, however, is exactly what I think shouldn’t be done. While it may be a pain to work through this gray area and decide on a case-by-case basis, it really is the only way. If the courts were to make a formal definition, it would likely be as broad and underspecified as their other definitions (such as piracy). Even if it weren’t, it would still be up for constant interpretation, negating its usefulness.
Just imagine what kind of formal definitions wouldn’t work based on this example. If one were to say a certain percentage of the image had to be modified, this derivative work would be standalone. Because the image is flipped and cropped, the percentage of the original image (pixel by pixel) present in the modified version is going to be limited to parts of the white backdrop that overlap. If one were to consider percentage after taking into account basic transformations (flips, rotations), then one would have to declare a certain list of basic transformations that didn’t count. This would certainly bring about problems when the simple rotation of an image changes the content entirely (a la those illustrations of people’s faces that are another face when turned upside down to a lesser extent). The complexity just continues to rise the more one thinks about the situation.