Every now and again, I find myself explaining photographic techniques to younger photographers. Recently, one of these conversations prompted me to recall a few of the photographers who helped me gain an understanding of those techniques and even the context in which I learned them. Often, those skills were learned as a result of seeing how other photographers had used them and then trying the technique for myself.
This sort of learning process is hardly new, and in many ways, it finds its origin in how artists learned their craft in the days long before film. As historian David McCullough detailed in his book, The Greater Journey: Americans in Paris, aspiring American artists in the 19th century were commonly found in the galleries of the Musée du Louvre copying works of the masters and hoping for the opportunity to be accepted into an established artist’s atelier where they would begin to refine their skills.
All of this begs a larger question, however: If the way that we learn as artists is from other artists, where does one draw the line between inspiration, plagiarism and copyright infringement, and does such a line even exist? Or stated differently, is imitation the sincerest form of flattery (as Walter Colton suggested) or simply an excuse for infringement?
In order to consider whether a line exists, it’s important to begin with a framework for understanding plagiarism. In simple terms, plagiarism involves taking someone else’s work and passing it off as your own. As Judge Richard A. Posner characterized the concept in his book The Little Book of Plagiarism, "[p]lagiarism is a species of intellectual fraud." However, as Judge Posner points out, the fraudulent aspect of plagiarism isn’t merely that one claims the work to be original, but that the "claim causes the copier’s audience to behave otherwise than it would if it knew the truth." In this sense, plagiarism is more about intellectual honesty and attribution than it is about the act of copying itself.
Contrary to what some may think, the law doesn’t recognize plagiarism, standing alone, as a crime. Since plagiarism often involves some sort of copying or borrowing of ideas and/or expression of ideas, it’s understandable that some may equate plagiarism with copyright infringement. As Judge Posner has observed, "Obviously, not all copying is plagiarism—not even all unlawful copying, that is, copyright infringement. There is considerable overlap between plagiarism and copyright infringement, but not all plagiarism is copyright infringement, and not all copyright infringement is plagiarism."
Some, like Judge Posner, have suggested that the confusion between copyright infringement and plagiarism may have to do with the fact that the line between idea and expression is often blurred. More likely, however, the confusion may be attributed to a lack of understanding as to what constitutes plagiarism, which in character, is very different from copyright infringement. Indeed, one may avoid plagiarizing—but not copyright infringement—when one discloses the source of the ideas and expression copied. "The law does not excuse copyright infringement," writes Posner, "no matter how fulsome the infringer’s acknowledgement of his copying; but the acknowledgement will exonerate him of any charge of plagiarism." Likewise, one may avoid liability for copyright infringement by copying only nonprotectable ideas of existing works, although doing so without disclosing the source of those ideas may result in plagiarism.