Tuesday, June 19, 2012
Where’s the line between inspiration, plagiarism and copyright infringement?
Considering that plagiarism often involves copying ideas, which themselves aren't protectable under copyright law, it may be more appropriate to compare plagiarism to idea misappropriation. Some states have recognized this legal theory, although increasingly the theory is couched in terms of an implied-in-fact contract. In California, for instance, if one prepares a work, discloses the ideas behind the work to another with the intention of selling the work and discloses the ideas under circumstances from which it may be concluded that the work is being offered for sale and for value, the subsequent misappropriation of that idea may be actionable. These sorts of claims have served as the basis for screenwriters to pursue claims against the movie studios that review scripts submitted for consideration and then produce a movie based upon the script without compensating or crediting the screenwriter. Like the distinction between plagiarism and copyright, however, it's possible for plagiarism to take place without giving rise to a claim.
It's also important to note that plagiarism isn't limited to written materials. As Posner points out, "There can be plagiarism of music, pictures or ideas, as well as of verbal matter...." Thus, photographers aren't immune from claims of plagiarism. Claims of plagiarism even can involve multiple or different media. The difficulty, however, is identifying whether plagiarism has taken place.
Not Every Case Is Black-And-White
A recent example of the complex nature of plagiarism involves a photograph entered in the 2011 Sony World Photography Awards.
In 2008, London-based photographer Nobuyuki Taguchi created a black-and-white image with an Escher-like aesthetic of the interior of the Natural History Museum. Taguchi published the image on his website, together with technical information about the image and how it was made; the image was also published in Amateur Photographer and Digital SLR User magazines. Then, in March 2011, Taguchi opened his copy of Black + White Photography magazine to find what at first appeared to be the same image. However, upon closer inspection, it turned out that the image in the magazine was created by Marek Troszczynski. The same image was published on the World Photography Organization's (WPO) website together with other images from the Sony competition.
Taguchi expressed his outrage over the image in a comment posted to the WPO website, asserting that the image was "a re-creation" and "should not be  shortlisted for an award."
Other comments posted to the WPO website expressed similar sentiments. One commenter, identified as Hikaru, wrote, "I must tell you that this image is a copy of the work done by someone else. I have seen this image on the web and in a magazine from Amateur Photographer before. This image was the biggest influence on my photography. This kind of application should not be allowed and disqualified straight away." Another, identified as DawidBury, wrote, "I'm in shock that you could copy such a beautiful picture, this picture was taken by another photographer, and it's even been show[n] in a magazine called Amateur PHOTOGRAPHER... it's very wrong that you are copying concepts of pictures and then making them look like the originals, using the same effects, lenses and angles in which the picture was taken."
Taguchi also expressed his frustration over the situation in his blog: "If [Troszczynski's] work is not an imitation of my work then...plagiarism does not exist, and we are living in a society ignoring...creativity and creativity has no value." Taguchi also discovered another version of his image on Flickr. Jeremy Carter, an amateur photographer in Kettering, England, who identifies himself by the Flickr screen name "Nikon_nutter," published a similar version of the museum image together with a caption that read, "I saw a photo just like this by...Taguchi in Amateur Photographer a few months back. One Samyang fisheye lens and a GorillaPod later and I was taking my own version."
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