In paragraph 67... I think you mean 68. There the judge explains that if the defendants hadn't put in as much effort, the resulting photo would be OK. That's

In paragraph 67... I think you mean 68. There the judge explains that if the defendants hadn't put in as much effort, the resulting photo would be OK. That's an assertion he's not really in any position to make, frankly. If the defendant had done as he suggests, and the picture turned out to be similar enough to the claimant's, why wouldn't the claimant still sue? Why wouldn't the judge find that alternate photo to be a deliberate imitation, and thus an infringement in that case, exactly as he did in this one? ...the output would have likely differed in many other ways... This judgment explicitly states that copyright infringement can occur even if the works in question don't look at all alike (30) and that the differences between the pictures aren't important but the similarities are (56). I half-suspect the judge is an amateur photographer and he's tying himself in all these logical knots because the defendants in this case are a bunch of jerks. But I also think (in my non-legal-expert way) that this is a really, really stupid decision with terrible implications, and I hope it's overturned or reversed in some way.