Whether the Defendant's copying of the Plaintiff's photograph for the purpose of making sculptures intended as social commentary on the photograph’s image was fair use?
Substantial similarity is the standard used to determine whether the reproduction right of a copyright has been infringed or not. The standard arises out of the recognition that the exclusive right to make copies of a work would be meaningless if copyright infringement were limitless to making only exact and complete reproductions of a work.
Content that is thought to be protected by copyright, makes an exception for the doctrine of fair dealing. It is a legal principle that allows someone to use any work that is protected with a limited amount of usage of that work in order to preserve the uniqueness and sanctity of that work as well as the registered owner of the work.