The flowers are arranged identically. The folds of fabric and hair are identical aside from a few trivial changes. It looks like a lightly photoshopped version of the original. Far too similar for chance.
It's not photoshop. It's an oil painting of a photograph, so of course it looks similar to the photo, but it also has several changes and it clearly took skill to paint. In fact it won some kind of award for how skillfully it was painted.
It's a combination of the changes and the new medium that make it transformative.
I can't agree. The changes are trivial[1]. An oil painting reproduction of a photograph is a derivative work, which makes this an unauthorized derivative work. The amount of skill involved in creating the reproduction is totally irrelevant, and a derivative work being transformative does not remove the original creator's rights over the distribution of derivative works.
It's worth noting here that the court in question did not address whether the painting is a derivative work, but whether the photograph itself was creative enough to earn copyright protection. The idea that it isn't is even more outrageous than the idea that the painting isn't a derivative work.
I don't personally don't feel that the changes are trivial, since I find that I have a strong preference for the photo over the painting, but that's subjective.
Either way, legally at least, you're right that many places wouldn't consider making artistic changes to be enough. I feel that artists should be free to create new derivative works however. All art is derivative and the purpose of copyright should be to protect artists from unauthorized reproduction, not prevent the creation of new artistic works. Copyright's original goal was to encourage the creation of new works, it's just been twisted over time into something that too often does the opposite of what it was created for.
I agree that it's crazy that they didn't think photo should have any protection under copyright. It shouldn't matter how unoriginal it was, it's still clearly a work of art. It could get a little more complicated when you're talking about a photo of a very common thing (like a popular landmark) where it might be hard to tell the difference between two people's photos of the same thing, but a photo taken of a specific model at a specific time under specific lighting etc. that seems plenty unique enough to me.
