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. 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." 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." By the time the Times-Dispatch completed its investigation, the intern who wrote the article containing what Seals described as "trouble-some similarities between the Metro Business article and Style‘s" had already left the paper and returned to school. There were no other reported firings, notwithstanding that the photographer didn’t have any input into the text of the article or its headline.
Zigging And Zagging In The Flickr Era
More commonly, the question of visual plagiarism is going to find itself intertwined with claims of copyright infringement. When such claims are pursued in court, the penalties available relate solely to copyright. That said, it’s not uncommon to find the concept of plagiarism coming up in connection with copyright infringement cases.
The issue of plagiarism came up in connection with David LaChapelle’s case against Rihanna and others relating to her S&M music video. In an interview with NPR, New York University professor Jason King discussed whether Rihanna’s video crossed the line from remix to plagiarism. According to King, pop stars "borrow images, in a kind of grab bag aesthetic from anywhere they want. There’s a kind of ubiquity of unsourced images out there in the kind of Flickr era that we live in." However, King explained that while there may be a borrowing of ideas, there’s also an expectation that the ideas simply won’t be copied. "There’s a sort of unspoken idea in the making of popular culture," says King, "that if you’re going to copy something, at least the copy should zig where the original zags."
There’s a sort of unspoken idea in the making of popular culture," says King, "that if you’re going to copy something, at least the copy should zig where the original zags.
LaChapelle has now settled his action again Rihanna for an "undisclosed sum," and according to his publicist, LaChapelle is "happy with the settlement." However, it seems that the legal issues involving the S&M music video, and the question of whether aspects of the video involve visual plagiarism or copyright infringement (or both), are far from settled.
In June, German fashion photographer Philipp Paulus announced his intention to take legal action, alleging that the S&M music video included images from his fashion series "Paperworld." A press release that posed the question, "[t]alent borrows, genius steals?" indicated that settlement efforts had failed and that Paulus will be taking legal action.
Paulus, in the press release, denounced the lack of originality associated with the S&M video. Says Paulus, "[t]o create new things within the creative cosmos, you can only expect this to come from a real genius, there is no doubt about that. However in this case there are no real [geniuses] who created their own work[;] instead they stole ideas from a creative talent. Furthermore every other creative professional should realize how supremely embarrassing it is to copy the work of colleagues from the artistic world and then to be praised for it."
Not everyone, however, shares Paulus’ view. Michael Masnick, CEO and founder of the Techdirt weblog, was critical of Paulus’ announcement. "I’m at a loss to see how this might be infringing," wrote Masnick. "At best, it’s an homage, for which the artist should be happy."
Inspiration And Improper Influences
One of the problems that photographers face is that, like any other visual artist, we’re all influenced by the works of others that we’ve seen. While some may view the distinction between being influenced by another’s work and re-creating another person’s work as being indistinct, for others, the distinction is far more black-and-white. Photo editor Stella Kramer, writing in her blog Stellazine (blog.stellakramer.com), suggested that "[t]here is a difference between [being] ‘influenced by’ and ‘copying of’ and we all know it. We are all a sum total of everything that we experience, see and consume. But the whole point of being a creative person is to digest it all and come up with your own individual expression." Or as she put it more succinctly, "Picasso was influenced by Matisse. But you would never confuse the two."
However, Kramer also acknowledged that photographers may be subject to less-than-benevolent influences. Writes Kramer, "I guess one of the dirty little secrets in the industry is that photographers are asked to copy other photographers, they agree to copy other photographers, and photo editors/art directors see nothing wrong with doing this."
In May 2011, Kramer addressed an instance of visual plagiarism. Fast Company magazine hired photographer Matthew Mahon to shoot an advertisement in the signature style of Jason Florio. After her first post described Mahon’s images as a rip-off of Florio’s style, she received some rather pointed feedback. At least one photographer who contacted Kramer on a condition of anonymity suggested that "it was irresponsible to point a finger at [Mahon] without getting feedback from Fast Company. As it is now, everywhere that that Mahon guy goes, there’s now a black cloud over him. That’s all that anyone remembers. No matter the truth, ‘the Mahon guy ripped off someone else’; that’s all that anyone remembers."
Kramer caught up with Fast Company Creative Director Florian Bachleda, who admitted the error. "We screwed up and got careless and sloppy, " said Bachleda. "There was no intent to harm Jason intentionally."
Florio’s own comments regarding the situation are particularly insightful. "As photographers we want to be known for our voice, our vision…that is what makes us unique as artists and makes us not just mere widget makers…. Legally as photographers we don’t have much to go on as far a[s] recompense. In this instance, although the damage is done, I was able to get some insight and closure by talking directly with the photo and art team at Fast Company. They admitted that they had seen my work in Resource magazine and directed the photographer to copy it."
Fast Company magazine’s willingness to take responsibility for its actions may have spared Mahon more serious consequences.
Too Many Shades Of Gray
Where does one draw the line between inspiration and influence, or between plagiarism and outright copying? In a world where a variety of media constantly bombard us with images, and where genuine originality represents a constant challenge to anyone involved in the creative process, the distinction is often too subtle and nuanced to be susceptible to any sort of bright-line test. Like so many things in life, there are simply too many shades of gray to support a black-and-white judgment.
Samuel Lewis is a Board Certified Intellectual Property law specialist and partner at Feldman Gale, P.A., in Miami, Fla., and a professional photographer who has covered sporting events for more than 25 years. He can be reached at [email protected] or [email protected]