We can certainly disagree on what constitutes social commentary, art, and fair use. Attorneys spend many years and millions of dollars hashing these kinds of cases out in court. From my perspective, we’re having a conversation and I’m sharing my point of view…which obviously conflicts with yours. Fortunately, I’m not the ‘final arbiter’ of anything.
My opinion can be summarized this way: I think Rosea’s piece qualifies as Fair Use. I don’t think Curvy Kate’s does.
I used the word ‘derivative’ for two reasons.
1) As stated in the post, I don’t know who came first, the tights or the artist’s work. This is in sharp contrast to the Curvy Kate incident, which obviously came last.
2) Rosea Posey’s photograph, even if it was inspired by these tights, could be considered social commentary and art. Transformative use (such as that which offers commentary or criticism) falls under Fair Use provisions. In the same way the popular Buffy vs. Edward video is derivative of two larger works, but exists as a work protected by Fair Use under it’s own right (as it’s very clearly social commentary). Curvy Kate’s use of the image was not transformative and made no social commentary. It was lifted directly from the photograph. That’s roughly equivalent to copying an article from Wikipedia to publish as your own, but claiming it’s original because you changed a few words.
As far as your claims that I’m biased…yeah, I am. I don’t like plagiarism. I don’t like copying. I don’t like when large corporations steal from independent artists and designers because they think they can get away with it. All of that bothers me. And if that kind of ‘obvious bias’ is a problem for you, I’m okay with that.
It’s funny. You call say CurvyKate had the AUDACITY TO STEAL, but you say Rosea Posey’s is just derivate. Hello obvious BIAS.
Yes, because someone stealing from a small designer is any better. Or when there is no Fair use in international, or Spanish law (and considering it’s a spanish copyright, Spanish copyright law applies, not american). Or when you think you are the arbiter of what “social commentary” is. So Rosea steals the idea, uncredited (Plagiarism much? Worth getting expelled from school much?), from a small overseas designer, changes it’s meaning. But not really. Look at the original spanish version. The meaning of the words are different, and has obvious social commentary purposes. So Rosea’s work is NOT transformative either. It’s just another student blindly stealing an idea and expression, that’s probably going to get her in trouble with her school now (yes, they can retroactively pull a diploma).