I suggest we follow the question, “Has it been transformed by the borrower?” Did the remixing, the mashup, the sampling, the appropriation, the borrowing—did it transform the original rather than just copy it? Did Andy Warhol transform the Campbell’s soup can? If yes, then the derivative is not really a “copy”; it’s been transformed, mutated, improved, evolved. The answer each time is still a judgment call, but the question of whether it has been transformed is the right question.
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