I will always remember my first photography lecturer telling my class;
“ As students you should not be original but copy the work of those that have gone before and learn your craft. When you are professional you can then create original work.”.
I agree with him, as a student to try and emulate images of those that have gone before is a way of learning how to create a certain type of lighting, depth of field, techniques like panning and long exposure as well as editing (analogue and digital). Once mastered over time you own style takes over and your work starts to become original. It can be argued that there is no original thought now since everything has been done before, and similarly in photography there is no original image.
Originality is can be hard, if we see an image we like, subconsciously we are likely to covert elements of the image (composition, toning, focus ect) in the future. This is part of the collective unconsciousness.
Original thought is like original sin: both happened before you were born to people you could not have possibly met. – Fran Lebowitz
A US court ruled that Copyright law protects artistic expression not ideas. The ruling was in relation to photo by Donald Harney, of a man who had abducted his daughter and was famously used as wanted poster during the manhunt. Recently Sony made a film about the story and recreated the photo as part of the movie.
Harney claimed infringement due to Sony copying several key elements of the photo, including; film stock, colour and type of coat the girl was wearing as well as the paper the man is clutching to his chest. The court ruled against Harney claiming too much of the image was spontaneous and therefore the core subject of the image is not a protected element, unlike the lighting, the tree, church tower and the blue sky that are part of the composition.
“Harney’s creation consists primarily of subject matter — ‘facts’ — that he had no role in creating, including the central element of the photo: the daughter riding piggyback on her father’s shoulders… Harney’s difficulty in alleging infringement is that almost none of the protectable aspects of [his photo] are replicated in the [Sony image].” Court Judgement
The image was a copy to make the film a realistic adaptation. What sort of copy, an Inspired copy or a direct copy?
Most people I think would be happy to have someone take inspiration from their work. It would make them feel pleased that they are so talented that someone wants to emulate their work. Imitation is the highest form of flattery after all.
Rodney Smith (photographer) even said the same thing and also added in February;
“…… I am not sure what I feel, and what I’m really not sure about, is why someone would applaud or even hire a vision that is by it’s very nature “second-rate.”
Smith was talking about an image that seems to have been lifted straight out of his portfolio onto the front cover of PDN in March 2013.
The March issue of PDN was covering Cade Martins advertising work that he had done for Tazo Tea and Starbucks. A campaign that Smith said he was approached to do but he can’t remember when.
Smith contacted PDN to make his case pointing them to his blog post. PDN made replied via their blog stating;
“We hadn’t seen Smith’s image. We know a lot of Smith’s black-and-white work, but hadn’t seen—or at least didn’t remember—the work that Martin’s resembles. So, if we had seen Smith’s images first, would we have asked Martin to explain the lighting techniques he used to create another model-with-teacups image? Probably not.”
PDN see a huge amount of images every day including a large number of projects, works and images that have similarities to ones they have seen before. PDN says that comparison is inevitable and they privilege the work that they see first. Companies and agencies are wary of running any campaign that is not tested, this is why there are so many images or products that look similar because, if it works for one why not all. PDN continues saying that if a photographer manages to create images that are fresh and innovative on similar themes then these images will grab their attention.
The similarity in the concept between Smith and Martin’s images is striking; both images show a lady drinking tea surrounded by tea cups. This is the only similarity, as both images have different settings, one in a grand room and the other on a stair case, in Smiths the light comes from the right, in Martin’s image the light is coming from the left. Using the court judgement in the Harney case there is no infringement.
Has it been copied? Possibly but also maybe inspired.
The US supreme court rules that; “copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work.”
What this means is that copying is ok, as long as you adapt the image and build on it with your own ideas. This has been seen time and time again in the history of art, photography and technology. Somebody creates something people love it and want more, another person then takes it to the next level.
I do feel in both cases that the images have been copied/inspired. In the case of Harney his image was an inspired copy similar to film the image was going to be used in. They could not have used his image as they bared no real resemblance to the actors.
With Smith and Martins images there is such similarity in the model and placing of cups that they are near copies of each other, yet both images are very different in tone and lighting. Yet are so similar they could be mistaken as being part of the same campaign.
Strong similarities between images can cause problems for photographers in the digital world we live in. Andreas Gursky is a renowned German architecture and landscape photographer. His images are often taken with large format cameras from a high vantage point. His image “99 cent diptychon” a two part photograph taken 2 years apart in a 99 cent store, is famous for being the most expensive photograph in the world; sold for $3.34 million in 2007.
Lyza Danger is a Flickr user who added a photo to her Flickr account of her local supermarket in 2004. She set the image rights to creative commons. Since being uploaded the picture has received 94,000 views. Her image shares some striking similarities to Gursky’s image, both taken from a high view point of supermarket aisle with colourful produce on the shelf. Although the big difference is in the tone of the image; Gursky’s is much redder, with the tilt shift of the large format correcting the perspective.
The problem comes for when you search for Gursky’s image you will in fact find Lyza Danger’s image attributed to him, which has led to some internet confusion and accusations of theft. Even reverse image searching Gursky’s picture brings up Dangers work.
Danger has done nothing wrong and the problem lies with the laziness of people on the internet not properly sourcing and researching pictures they find. Since the internet is a big web once the ball of misinformation starts it soon becomes fact.
This asks the question of what rules do we follow?
The law allows copying of the subject as long as you tweak the image to create a new work, or do we follow our moral law knowing that copying is not right.
As I mentioned at the beginning my tutor told us we must copy to learn. Do we ever stop learning? Seeing new ideas and melding them with our own artistic view.
I do copy ideas, I am even working on an image which was inspired by another. I don’t feel bad about this, because I am trying to create something new and learning how to create this style of image.
This week I saw a PetaPixel article on my Facebook feed that made me jump straight to the main image. It was of a penguin with a cats head. I was shocked, mortified; someone had stolen my image and was getting praise for my work on a large photography blog. I quickly found the blog post with my image and relaxed.
The pictures looked similar and actually had the same concept but were different enough for me to unwind. Did I Inspire this photographer? I don’t think so. Was my idea unique? No.
Sometimes great minds think alike.
Originally Posted in April 2013, Updated with information of Andreas Gursky and my own shock this week. Replacement of the featured image and removal of a graphic which was no longer needed.
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