There are people that look like Miles Davis in that picture. If I take a picture of one of them, in the same looking clothes (although certainly not exactly the same) holding a similar trumpet, with similar lighting, would that violate copyright? At a quick glance maybe indistinguishable. At closer side by side inspection, any amateur investigator could spot the differences.
I'm not really convinced that would be sufficient; if you paint a duplication of an existing painting you are really stealing the likeness and profiting solely by distributing someone else's creative work. I think if someone did your example, if they could prove that your intent was simply to reproduce your creative work you would still be infringing even if you don't simply copy paste it.
If you paraphrased Harry Potter and published it, it would probably still be copyright infringement even if no single sentence in the novel remains unchanged.
It seems to me that it comes down to whether the work you made is a derivative work of someone else, particularly if you are directly taking their creative vision and adding nothing. Reproducing something in another medium easily could be the same thing as photocopying a book or selling prints of someone else's painting.
I suspect you are probably right. What this leads me to believe more and more is that there is no natural right to art. I'm really feeling more like copyright needs to just go.
It has nothing todo with what is 'natural'. There is no natural right to land ownership - it's just the system we choose democratically because we believe that the advantages it brings outweigh the certain misery it causes the impoverished. Few of us believe that abolishing the right to Private Property would, on the whole, bring about a net gain for the majority. Personally, i don't believe that the Maisel case has much to say about abolishing Copyright. That doesn't mean i'm not in favour of doing so, but Maisel is an edge case.
Actually, the most prominent scholars in this field often do include land ownership as a natural right. John Locke, the modern father of natural law, described natural rights as, "life, liberty, and estate". I think its largely settled philosophy now.
Copyrights are still much more debatable. The main defense for pro-copyright activists are that they're necessary for the economy. I tend more and more to the belief that the economy will change as a result -- a freer economy, but a different one.
It was explained to me that big companies can't simply copy ideas/concepts. Example: They ask for an expose of work and then don't hire the original artist but reproduce it inhouse. Also think publishers or even Hollywood: Scripts are advertised by their authors to many producer (like the proverbial taxi driver who tells every prominent passenger of his movie idea) but this only can work if manuscripts are protected. The other example is something like GNU: If you kill copyright the GNU Public license would cease to exist.
There is probably at least one person in the world that not only looks like Miles Davis, but wears the same type of clothes, plays the same kind of instrument and can be photographed in the same posture. People in real life tend to duplicate each other: you don't even need to try to recreate the situation: it already exists multiple times.
I don't doubt that, and photographs of that person aren't infringing unless you are deliberately reproducing the original work. I think the burden would fall onto the copyright holder to prove that the elements of the new work are lifted from the original work beyond reasonable doubt that it was just a coincidence.
The burden of proof would be on the photographer to prove that it was a "copy" of their work rather than an independent creation.
At a certain point it comes down to this intangible idea of intent and process.
The Moe's burritos in Tallahassee has a series of photos on the wall that appear to be famous photos of musicians (eg. John Lennon, Slash, Bob Marley), but if you look closely it's a lookalike and there's a small caption beneath that says something like "Bob Smith, from Denver".
I remember that a rap band had to make a studio re-enactment of George Benson's "give me the night" to use as a sample in a song because Benson simply would ask to much. However using the cover version went OK.
