So, let's imagine that the Statue of Liberty in Manhattan was copyright, such that you couldn't take (or at least benefit commercially from photos) of it...
The author of the original article used a photo of a very similar statue, but one that is based in Tokyo. I don't know whether they're identical, but let's assume not, and that there is no similar copyright.
(I appreciate this is very hypothetical, but so was your "let's say I ran a random number generator" argument.)
The author of the original article used a photo of the Tokyo statue with the intention that readers would interpret it as the Manhattan statue.
Would the author be deemed to have infringed the copyright on the Manhattan statue?
By your "if your goal was to come up with something that looks like it, and you stop when you have something that resembles it (doesn't matter if the match is good or bad), you will be deemed to have copied it" definition, it seems they would.
> Would the author be deemed to have infringed the copyright on the Manhattan statue?
Possibly. You hit the nail on the head when you say "with the intention that readers would interpret it as the Manhattan statue". It's all about the court's interpretation of the intent of the parties involved.
I don't think anyone can predict what a court would decide. Perhaps the court would say that because any statue would have done, and what the reader interpreted it as was immaterial to the content of the article, it wasn't an infringement. I wouldn't be at all surprised if this is what would happen.
All I'm saying is that if you try to "work around" copyright using "parallel reconstruction", the courts are entirely able to see through this if they so wish. The courts are never going to say "you got us there". I'm not making any claim as to whether they actually will or not in a particular hypothetical case, since that depends on the circumstances of the court's interpretation of the bigger picture (intent, appropriate interpretation of the law, etc), which is far more subjective.
So, let's imagine that the Statue of Liberty in Manhattan was copyright, such that you couldn't take (or at least benefit commercially from photos) of it...
The author of the original article used a photo of a very similar statue, but one that is based in Tokyo. I don't know whether they're identical, but let's assume not, and that there is no similar copyright.
(I appreciate this is very hypothetical, but so was your "let's say I ran a random number generator" argument.)
The author of the original article used a photo of the Tokyo statue with the intention that readers would interpret it as the Manhattan statue.
Would the author be deemed to have infringed the copyright on the Manhattan statue?
By your "if your goal was to come up with something that looks like it, and you stop when you have something that resembles it (doesn't matter if the match is good or bad), you will be deemed to have copied it" definition, it seems they would.