CryptoPunks are a set of 10,000 Ethereum-based NFTs, each token corresponding to a unique 24 x 24 pixel cartoonish figure. They have been automatically generated from human generated components representing traits and types of characters. They are quite valuable, for example CryptoPunk 1886 sold for $1.06M in July last year. It had only 6 colours:
The creators, Larva Labs are somewhat litigious and have sued CryptoPhunks, who made versions that have been “hand-flipped” (ie. look the other way), as well as being a different size and having a border.
Suppose one was to take this idea a bit further, and generate many small images with vaguely face-like features. Because of the limited number of colours distinguishable to the human eye, and with only 576 pixels in a 24*24 image, many are going to be more similar to CryptoPunk 1886 than CryptoPhunks 1886. With a large enough set it is quite possible that an identical image could be produced (there are less than 10^10 combinations for a 24 x 24 8 bit RGB image).
If Larva Labs claimed these similar images were derivative works, and it was demonstrable that they were generated independently, would it be legally justifiable to claiming that they were derivative works?