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With regard to the editorial, the point is not whether some measure of ART and subsequent dialogue is initiated by Fairey’s work. The issue is that Mr. Fairey did not solicit and obtain the legal rights to use the photograph from the photograph’s owner in accordance with current copyright law – whether he intended to do a derivative work or an exact copy.
In my opinion your referenced editorial used the type language and double-talk that one would use when trying to justify a circumvention of the law. Especially when in this case, the evidence is so obvious that any resulting “debate” is almost ridiculous. Unless, of course, one’s intent is to use the current subject to again, for the gazillionth time, instigate debate on the copyright laws themselves.
With regard to the editorials desired excuse for infringement by the use of the word “referenced”, it seems to leave room for me to get an on-line copy of “Pride and Prejudice”, move a few words around on each page, title it “Prejudice and Pride” and upstage Miss Austen.