My gut reaction looking at it is to judge the quality of the art but that isn't really the point. We shouldn't only defend "good" art. So that does get into the

My gut reaction looking at it is to judge the quality of the art but that isn't really the point. We shouldn't only defend "good" art. So that does get into the fact that fair use is a "doctrine" and so it harder to quantify. Would anyone confuse the photograph with Warhol's version? No. Warhol's look was so distinct that regardless of the photo used, it still looks like a "Warhol." So on that grounds I would say it is a transformative work and therefore fair use.