That doesn’t sound right. I mean, there was the Obama campaign poster case linked to above, and then there was this case where Jeff Koons wanted to make a sculpture based on a photograph.
I posted this example upthread, either it makes the case or it doesn’t, but I think it clearly presents original art as well as a side-by-side of GZ’s painting:
The standard may change a bit if you are crossing genres, but can definitely be derivative.
In CASTLE ROCK ENTERTAINMENT, INC. V. CAROL PUBLISHING GROUP, INC, they used a substantial similarity test to determine that a seinfeld trivia question book was derivative of the TV show.
Substantial similarity - requires that the copying [be] quantitatively and qualitatively sufficient to support the legal conclusion that infringement (actionable copying) has occurred. The qualitative component concerns the copying of expression, rather than ideas[, facts, works in the public domain, or any other nonprotectible elements]. . . . The quantitative component generally concerns the amount of the copyrighted work that is copied, which must be more than “de minimis.”150 F.3d 132 (2d Cir. 1998)
My personal opinion is that if taken to court, this would be copyright infringement and Zimmerman does not have a fair use defense.
Because it’s harassment? How would you like it if someone made a career out of portraying you bayonetting babies, slandering your good name?
Below a certain level, you cannot legitimately make a “substantial similarity” argument. If you draw a circle on white paper, you cannot then sue everyone who ever draws a circle on white paper. If you take a photo of a waving American flag, you cannot then sue anyone who uses a waving American flag.