Tuesday, June 19, 2012
Where’s the line between inspiration, plagiarism and copyright infringement?
Troszczynski denied having seen Taguchi's image prior to creating his own. "Just to clarify," wrote Troszczynski, "it's not plagiarism. I haven't seen [Taguchi's] shot before taking mine. I think it's shameful and hurtful to jump into such conclusions, trying to diminish someone's reputation without knowing the facts."
Interestingly enough, Taguchi could just as easily have been accused of plagiarism as was Troszczynski. London-based freelance photographer Jamie Gladden commented in his blog, 3 Songs No Flash (www.3songsnoflash.co.uk), that Troszczynski's image "looks remarkably similar to one of my own photos." The catch, however, is that Gladden created his image in 2007, a year before Taguchi created his version.
Unlike Taguchi, Gladden took a somewhat more introspective approach to the matter. "I was trying to figure out how I felt about this. Should I be shocked that someone could steal my idea? Should I be concerned that it's hard to come up with something original and I'm just being derivative like everyone else. Or (most likely) should I be thinking, Damn! Why didn't I enter that myself?"
Rather than accusing Troszczynski or Taguchi of plagiarism, Gladden contacted the WPO. In response, Astrid Merget, creative director of the WPO, wrote: "Plagiarism is a very complicated issue in the world of photography and one that the [WPO] (which organises the awards) takes very seriously—especially as we have so many photographers entering the competition each year, and thousands who make their living from photography. WPO has investigated the claims made, consulted the judging panel for this year and been in touch with both the photographer making the claim and our winning photographer. The result of the investigation shows that the claim is unfounded and at this point there is no evidence of intended plagiarism, thus the matter is closed. WPO supports their winning photographer Marek Troszczynski and is delighted to have awarded him the prize."
Ultimately, Gladden concluded that the fact that the images were similar wasn't enough to support a claim of plagiarism. "[Taguchi] complains that since he took his photo first, [Troszczynski] must have copied him, and he must have seen it because it's been published. So, does that also mean that since I took my photo in 2007, and uploaded it to Flickr, that I can also accuse [Taguchi] of plagiarism? No. If I did that, then you know there will be 10 people who complain to me, saying that they've got a similar shot, taken years before I got mine.... I don't think you can expect to go to any tourist attraction in a major city and take a photograph that isn't in some way similar to what's been done before. Does that mean we're all guilty of plagiarism? No, it doesn't."
Punishments That May Or May Not Fit The Crime
One significant difference between plagiarism and copyright infringement is that copyright infringement is a tort (and, at times, a crime). The law doesn't define plagiarism itself as a crime. That said, the reality is that society often, but not always, imposes significant sanctions upon plagiarists. According to Judge Posner, "[b]y far the most common punishments for plagiarism outside the school setting have nothing to do with law. They are disgrace, humiliation, ostracism, and other shaming penalties imposed by public opinion on people who violate social norms whether or not they are also legal norms."
In extreme circumstances, the punishment for plagiarism may even result in loss of employment. In 2005, the Richmond (Va.) Times-Dispatch terminated a photographer for what it described as visual plagiarism. The article, headline and image at the heart of the controversy featured a Richmond-area confectioner and were similar to those appearing some eight months earlier in Style Weekly, a publication self-described as Greater Richmond's alternative newsweekly. Initially, when commenting about the similarities between the two articles, Times-Dispatch Managing Editor Louise Seals said, "[a]t the very least, credit should have been extended to Style [Weekly] for having the idea." Several days later, Seals' tenor had changed. "We learned that the photographer had seen the Style photo while at the candy company, and was told of the similarity, but submitted the picture anyway as original work," wrote Seals. "That is visual plagiarism and that is why we have dismissed the photographer." Seals also indicated that the paper's investigation of the incident "raised questions about several news-room practices."
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