Before I go any further, I want to address a minor point in this debate. Arguing that “The law is the law because it’s the law.” is circular and pointless. I haven’t seen anyone here put forth the idea that the legal rights don’t exist, only that they are outdated, unenforceable, or unethical. If you truly believe that the law is the sole arbiter of ethical behaviour, then say that and have done with it. I’ll happily abandon my efforts in this thread if that is the case, as we really have nothing further to say to one another on the topic. Law is malleable and changes with the times and standards of the people it governs. Many of us believe that ethics exist independently of whatever legal standards may exist.
Let’s talk about a photograph then, and set all other examples aside.
Access: A photo is visual media. Presumably, that means that any person with functional eyes who stumbles across your image is capable of viewing it. That logically dictates that if you want to control access to* viewing* your image (rather than reproducing, we’ll deal with that later) then you must restrict the places it is available. Now, understanding that, you still want to profit from your image, and know that people generally won’t pay for visual content they haven’t viewed; you put up your image on Banquet Bear.com as an example of the book or digital set you are hawking.
Now stop.
The moment you put that image up, you just contributed to our shared culture. You just freely disseminated* access *to that specific content to anyone who accesses your page. You may have done so as a necessity, but nonetheless that specific image is now accessible by anyone who chooses to view it. I’m not arguing that in doing so you abdicate all your rights to controlling that image; but it is equally ludicrous to claim that after freely disseminating access to an image to the world at large that you still maintain complete and total control over said access). Understand? The cat is out of the bag and cannot be put back in. Even IF you were somehow able to control every “copy” of the image that was viewed, it still exists outside of that physical media in peoples’ minds. So the right of “access” is really nothing more than a pipe dream now, left over from a time when physical media made such things easier.
*Reproduction: * This is an entirely different kettle of fish from access. I believe that the point of copyright is to protect an artist from the THEFT of their work by others who intend to use it for profit. It is reasonable then that an artist should be able to control unauthorized reproduction of their work where money is being exchanged. So let’s use our standing example of a photo set. Suppose that you control access to the content by keeping it behind a paywall. To view the set one must pay Banquet Bear.com for their “copy”. If I hacked that paywall and took your photos I was certainly stealing from you. This is comparable to pirating films; the content and access is directly paid for by the consumer, and accessing it without paying is theft. We agree on this point.
Now let us consider a slightly different example: The photo *single *you gave away promotionally on the website to get me interested in the set. In the old days, if I wanted my very own copy, I’d have to pay you. Unfortunately, technology has rendered that model extinct, so we should then determine a new definition of “fair use” for content that is freely disseminated to the public at some point; if only to reflect the reality of the world. This example is comparable to TV shows, or songs played over the radio to anyone who might be listening. I think on this point there is room for discussion by both sides to come to a compromise. At a minimum I would suggest that license for personal use is conferred by the model.
That brings us to derivative work. I would agree with you that the example you provided is infringement. Simply taking the exact same image, coloring it funny, and slapping a sticker on it is not a legitimate new work. (it is the exact content being used) OTOH, what about a painter who paints an original version of that image? This is where it can get tricky. I also think there is room for discussion on this portion of the topic. What do you control? The right over any image of a man with dreadlocks standing in a forest? Some people argue their case that way. Others take a narrower view. I think that we need to create a model, (perhaps a sliding scale) that helps us to determine how much of a derivative work is unique. One idea might be that above a certain percentage the derivative maker must begin to pay royalties. Go into the next category and it is simply infringement, and whatever penalties are relevant should fall. We see a bit of this in music sampling, and I think that a good law should protect and benefit everyone.
Lastly, let’s talk a bit about orphaned, or mothballed content. In the former, the rights should simply become public after a reasonable search is conducted. In the latter, I would suggest a “use it or lose it” model in regards to content that was at one point available to the public. There is room for discussion on this as well.