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Visual plagiarism: when does inspiration become imitation ?

17 November 2007 - EPUK

There may be no new ideas, but some ideas are less new than others. So where is the line drawn between genuine accidental similarity, homage, and wholesale copying ? Our case studies show the law is not as straightforward as we may think. (Updated, November 2007)

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.


Leibovitz takes inspiration from the past

Acclaimed celebrity photographer Annie Leibovitz is apparently no stranger to giving a gentle nod to her predecessors. The Online Photographer pointed out her Vanity Fair cover (above) of Suri Cruise and parents bore remarkable similarities to Linda McCartney’s portrait of husband Paul which she once described as “one of my favorite pictures of a father holding a baby”.

Other bloggers also noticed the deliberate similarity between Leibovitz’s Vanity Fair cover of Roberts, Clooney, Gore and Kennedy and Irving Penn’s 1948 “Ballet Society” (both shown below). In both cases, the similarity can almost certainly be down to a deliberate ‘nod’ to the visually aware reader.

Tony Stone vs Stephen Arscott

In 1994, Tony Stone Images took both Corel Corporation and Canadian artist Stephen Arscott to court over Arscott’s winning entry “The Real West” in that year’s Corel Draw World Design.

While Arscott had stated on the competition entry form that his image was original, the central image was clearly based on a photograph taken by Tony Stone photographer Nick Vedros featuring a Native American wearing traditional headdress in side profile. The winning entry was also scheduled to appear in Corel’s worldwide marketing campaign.

Arscott, a professional graphic designer at the Arscott, Ticar and Kobli Integrated Communications advertising firm, claimed the image had been created using CorelDraw’s freehand drawing tools.

When initially contacted by Tony Stone, Arscott, who had received $25,000 cash and prizes in excess of $75,000, conceded that he had copied Vedros’ photograph, but that he had not infringed the copyright as he had transfered the medium from a photograph to a painting. In a letter he sent to Vedros, Arscott admitted “I used your photograph of the Potawatamie Indian as a reference for the creation of my piece”

Arscott refused to return the prizes, and instead submitted to Corel a modified version of his original entry, in which the Native American was altered slightly, but which still infringed Vedros’ original work. He also claimed that Vedros had suffered no injury or damage from the infringement.

The Canadian court found in favour of Tony Stone, who had sought $400,000 in damages from Arscott.

Milla Jovovich, pictured (above) in Besson’s film “The Fifth Element”, and (below) in a television advertisment for mobile phone company SFR

Besson vs Publicis

In 2004, film producer Luc Besson was awarded €2,750,000 by a French court in a case brought against advertising agency Publicis and mobile phone company SFR. A series of television adverts for SFR had featured actress Milla Jovovich playing a futuristic redhead in a white vest; Besson had argued that the character was based on his character Lilou from “The Fifth Element”, an orange haired white vested character also played by Milla Jovovich.

Lawyers for Besson argued that the use of the character in the adverts went beyond mere homage, but plagiarised and was ‘parasitical’.

While the Tribunal de grand instance ruled that the companies were guilty of “piggy-backing” on the film – that is, benefiting both creatively and economically from the goodwill from another creative work – it crucially found them not guilty of copyright infringement on the basis that there were not substantial similarities between the film and the advert. The court ruled both that just two physical characteristics were not enough to define a distinct fictional character, and so could not be protected by copyright, and that the set styling belonged to already extant science fiction genre.

During the case, the defence never sought to deny that both the character pictured in the advertising campaign, and the choice of Jovovich to play that character, was inspired by Besson’s work.

Glen Brown vs Tony Roberts

Top:Turner prize nominee Glen Brown’s work “The Loves of Shepherds”; and below, Tony Robert’s work “Dark Star”

In 2000, Turner Prize nominee Glenn Brown was accused of plagiarism by the Times newspaper in what was described as a “stroke by stroke” copy of a work by Anthony Roberts for a science fiction novel cover. Roberts who was originally paid £180 for the work in 1974, confronted Glenn Brown at the awards ceremony. According to the Times, Brown said: “Do you think I would spend six months painting it just to make money out of it?” to which Roberts replied “Of course. Why else would anyone spend six months painting anything?”

Many of Brown’s works are originally based upon works by other artists from masters like Rembrandt to modern science fiction artists which are then altered in colour, tone or cropping.

Photographer Wolfgang Tillmans won the Turner prize that year, and a legal case brought by Roberts against Brown was settled out of court.

Jack Vettriano and The Illustrator’s Figure Reference Manual

Vettriano’s £750,000 “The Singing Butler” with the sketch from the £17 “Illustrator’s Figure Reference Manual”.

In 2005, graphic designer Sandy Robb noticed a number of similarities between some of the hundreds of sketches from the 1987 “Illustrator’s Figure Reference Manual” and much of the early work of Scots painter Jack Vettriano.

Vettriano defended himself by arguing that he used the book for its intended purpose. ““At the time, in 1991, I was sitting in Edinburgh in a small studio. I didn’t have money, I didn’t have access to models and I was using whatever material I could find from reference books, from magazines, from anything.”

“The manual was only a part of the process. I just wish people would look at the figures in that book, compare them with that painting and then tell me honestly that the guy who painted it isn’t creative.”

Not so sweet: Richmond Times-Dispatch

The US Richmond Times-Dispatch fired staff photographer Cindy Blanchard over what its managing editor described as “visual plagiarism”.

The incident hinged on a cover story for the Times-Dispatch’s Metro Business section in which the cover photograph, cover headline, and parts of the written article were almost identical to a similar piece in the rival Style Weekly published nine months earlier.

The original Style cover right, with the subsequent Times-Dispatch cover left.

According to Times-Dispatch managing editor Louise Seals said that Blanchard had submitted a cover image after being told by the confectionary manufacturer of the similar and previously taken photograph.

In a front page apology, Seals did not explain on how the other similarities with headline and article occurred, and refused to elaborate further when contacted by Photo District News.

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