Bialobrzeski vs Zielske: “a senseless act of imitation.”

After he won the top prize in the Arts Stories category in the 2003 World Press Photo awards for his dense and unreal dusk cityscapes of Asian cities, German photographer Peter Bialobrzeski became used to other photographers asking him for advice. But one phone call, from father-and-son team Horst and Daniel Zielske stuck in his mind for the specific detail they asked for, including the type of film, exposures and vantage points used.

“I wasn’t very suspicious [until] they were asking me specifically about this one photograph of the Nanpu Bridge. At that point I stopped the conversation and said ‘You have to find something out for yourself.’ “

However, when Bialobrzeski later saw the Zielske’s photograph of Shanghai’s Nanpu Bridge which was almost identical to one of his winning entries for the World Press Photo awards, he described it as “as if someone had burgled my house”, calling their photographs “a senseless act of imitation”


Left: Bialobrzeski’s photograph of the the Nanpu Bridge, Shanghai, with (right) the Zielske’s version

Last September Bialobrzeski asked the Hamburg Museum für Kunst und Gewerbe, who were about to host the Zielske’s “Megalopolis Shanghai” exhibition, to remove several images which he claimed bore significant similarities to his own earlier work.

The museum refused to do so, and told Photo District News that their lawyers had advised “…that the photographs in question are independent of each other, each of them being an image in its own right.”.


A second of Bialobrzeski’s Shanghai photographs with (right) the Zielske’s version

Bialobrzeski himself concedes that the issue is one of ethics, not of copyright. “It’s not a legal issue. It’s a moral issue,” he says. “I don’t want to live in a world where this happens all the time. There should be respect for intellectual property and ideas.”

In a press release, the Zielske said: “There are innumerable moments – but only a few good ones. To see that one moment coming which counts, that is the secret of Horst und Daniel Zielske.”

William Klein vs John Galliano, 2007

Celebrated photographer and French icon William Klein was surprised to receive a call from a friend asking him: “William, why did you create this mess for Galliano?”

Klein’s friend was referring to a series of advertisements for Galliano’s fashion house which had run in numerous fashion publications worldwide, and which featured Klein’s trademark contact sheets covered with bright diagonal brushstrokes. But Klein was not involved in the adverts at all, and raised an action against Galliano.

Klein’s work is seen left, with the Galliano advert at right

Galliano’s fashion house denied any infringement, but stopped the advertising campaign. In April 2007 a Paris court ruled that Galliano had breached Klein’s “intellectual and moral copyright”, and ordered Galliano to pay Klein €200,000. Galliano was also ordered to run an apology in each of the magazines which had published the advertisement.

Getty Images vs FNOTSI and Prisme, 2007.

When photographer Ian Sanderson first saw an advertising campaign for the French Tourist Federation FNOTSI, he was convinced that the photograph featured was one that he had taken a decade previously for Athena, and which was available to use through Getty Images.


Ian Sanderson’s original photograph, taken in 1991 is pictured left, with the photograph used in the FNOTSI campaign on the right

It was only when he looked closer at the image that he realised that it was not his work but just a very similar photograph: and both he and Getty believed that the similarities were down to outright copying of the original, rather than just chance.

While the advertising campaign was cut short when Getty contacted FNOTSI, both they and their advertising agency Prisme denyed any infringement, claiming that their photographer Laurence Frappa was working from a designers sketch, rather than Sanderson’s photograph, and any likeness was coincidental.

A Paris court initially ruled in favour of FNOTSI and Prisme in 2006, stating that Frappa’s photograph was a new expression of the underlying idea of Sanderson’s photograph, rather than a copying of the photograph itself. An appeal court overturned this decision in November 2007, ruling in favour of Getty.

FNOTSI and Prisme are estimated to have saved around €6,000 in commissioning their own photographer rather than licensing Sanderson’s photograph from Getty. However, it is estimated that this decision subsequently cost them over €100,000 in legal fees, damages, and the scrapping of the original campaign.

EPUK’s story on the appeal victory can be seen here.

Art Rogers vs Jeff Koons, 1992

What happens when a two-dimensional photograph is used as the basis for a three-dimensional work, such as a sculpture ? In 1992, a New York court ruled that artist Jeff Koons had infringed the copyright of photographer Art Rogers by doing just that.


L: Art Rogers’ 1980 photograph “Puppies” with R: Koons’ sculpture “String of Puppies”

Koons bought a postcard of Rogers’ black and white photograph “Puppies” from a souvenir shop, and used it as the basis for a sculpture (which was actually constructed by artisans working for Koons) called “String of Puppies”. Through the process, Koons insisted that the sculpture should be as near as identical to the photograph as possible, with written instructions to his workers such as “work must be just like the photo”, “Details -just like photo!” and “Girl’s nose is too small. Please make larger as per photo.”

These notes proved crucial in the subsequent New York court case brought by Rogers against Koons. The court ruled that Koons had not just copied the idea behind the photograph (which would have been permitted), but had copied the photograph itself. Although Koons had added small details to the sculpture which were not present in the original photograph, these were not enough to stop the sculpture being “substantially similar” to the original work, and so infringed Rogers’ copyright.

The court rejected Koons’ defence that the copying of Rogers’ photograph was allowable because the sculpture was a parody of the underlying work, because the photograph itself was not the subject of the parody.

Reece vs Colucci and Island Treasures Art Gallery, 2007





In 2006, Hawaiian photographer Kim Taylor Reece raised an action against an artist and an art gallery over a 1998 stained glass window entitled “Nohe” which he claimed was a copy of his 1988 photograph “Makanani”.

While Reece’s image, which showed a Hawaiian dancer in a traditional pose bears significant resemblances to the artwork, artist Marylee Leialoha Colucci claimed that her work was not based on the photograph, but was inspired by the traditional dance. Colucci’s artwork also contained several elements which were not present in the original work.

An out of court settlement was reached in 2007 in which both Colucci and the art gallery agreed to pay damages without any admission of guilt. The settlement also stated that the window could be publicly, but not commercially, displayed.

Reece’s lawyer Mark Bernstein told the Honolulu Advertiser “Kim Taylor Reece’s claims have never been other than someone had copied his copyrighted photograph. It’s the photograph. It’s the angle of the photograph. It’s not the pose.”

Elliott Erwitt and Heineken


Erwitt’s original photograph for the French Tourist Board, with the Heineken spoof

Elliot Erwitt’s poster campaign for the French Tourist Board produced an already classic image. At the time, Heineken’s advertising agency, Lowe Howard-Spink were producing a series of spoof of other advertisments, and art director John O’Driscoll called Erwitt, asking him if he would be interested in plagiarising his own photograph.

“Generally, people just steal your ideas”, said Erwitt, “but in this case, they had the decency to ask me to do it”

In most European countries, the idea of parody can mitigate against charges of plagiarism since successful parody relies on recognition of the original. Indeed, the French Code de la propriété intellectuelle explicity states that an authors copyright is generally not infringed by parody.

However, it seems likely that Heineken had both the budget to hire the world-famous Erwitt, but also the foresight to realise that hiring another, lesser, photographer while trading off the goodwill of a more famous work could be a public relations disaster for the brand.