What the law has to say about copying

Yesterday, I made a Facebook post that caused quite an uproar. The majority of those upset by it, however, were upset either because of misinformation on the subject matter itself, or by the fact that I used the actions of a particular photographer as a case study. So, I am writing this blog post to thoroughly discuss the matter in a different manner.

 

What does the law have to say about copying another photographer’s work?

 

Photographers are used to thinking about copyright in terms of protecting the images they’ve taken from being used without permission. Photographers get very upset when another photographer, or a company, or a client, uses their work without the photographer’s consent, and understandably so. We know that it is illegal. We expect our clients to understand that they cannot scan the prints they purchase and make more of them.  We are good at protecting our work and our wallets.

 

But copyright doesn’t just include unauthorized use. It also prevents photographers from being able to publish or sell works that are a direct, intentional recreation of another artists’ work.   Let’s look at the law, which I am quoting from an excellent article by attorney Carolyn Wright, which you can read in its entirety here: http://www.photoattorney.com/copyright-infringement-for-substantially-similar-works/

 

Substantial Similarity

To establish a claim of copyright infringement, courts require that a plaintiff prove, first, that he owns a valid copyright in a work and, second, that the defendant copied original elements of that work. Id. at 340, 111 S.Ct. at 1296.  The plaintiff can prove copying either directly or indirectly, by establishing that the defendant had access, and produced something “substantially similar,” to the copyrighted work.  Original Appalachian Artworks, Inc. v. Toy Loft, Inc., 684 F.2d 821, 829 (11th Cir.1982).  Access to copyrighted material, as element of copyright infringement, simply requires proof of a “reasonable opportunity to view” the work in question.  Herzog v. Castle Rock Entertainment, 193 F.3d 1241, 1249 (11th Cir. 1999).

Substantial similarity “exists where an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.” 

 

Let’s talk about what this actually means.

 

Let’s say you see an image on Facebook that you absolutely love. It’s unique and you really want to try to make the image yourself. So, you get very similar props, location, model, use similar light, and do everything you can to replicate that exact image. Well, the law says that is an infringement on the originating photographer. You can certainly do it as a learning tool specifically for your learning purposes, but if you publish or sell that work in any way, you can successfully be sued.

 

What the law does not protect is style and general aesthetic. I may dislike it when someone’s style looks far too much like mine, particularly when I know they’ve had access to my work, but I can’t do anything about that. I hear very often the defense that people who mentor and teach their techniques can’t complain when other peoples’ work looks like theirs, and that is absolutely correct. Nobody has a corner on the “hazy processing” market. I cannot sue a photographer for generally producing work that has my techniques and aesthetic. The law covers very specific images; I have to prove that somebody saw my particular image and deliberately set out to recreate it in every detail.

 

Now, the argument I hear most from photographers is “there’s nothing new under the sun.” Others phrase is as “everybody takes ideas from others” and “the person I copied it from wasn’t the first to do it.” Here are some problems with that argument.

 

–       First of all, the law doesn’t care about justifications. If you do replicate a photographer’s specific image, and you tell a judge, “Everybody’s doing it,” you are not going to get very far.

 

–       Secondly, not everybody does take ideas and directly duplicate them. For some reason, it has become acceptable to many photographers to do so, but there are many out there who do not learn and profit by directly recreating others’ works.

 

–       Third, the law requires the photographer who is suing to be able to provide proof of copyright of the original image, as well as proving that the infringing photographer had access to the original. You are welcome to tell the judge that the image is a very common one and not owned by that photographer, and the judge can decide whether that is the case. However, I certainly wouldn’t put myself in that situation.

 

So, the law says it is illegal to purposefully recreate that image you saw and loved, and publish or sell your version. You may feel that law is unfair and ridiculous, however our opinions of the law do not change it. Am I saying that if you recreate an image, you’ll get sued? Of course not. What I am saying is that you could. It is your choice whether you want to take that risk.

 

How close is too close?

 

This is where I often hear the emotional responses such as, “Oh, so, what, I can’t put a baby in a basket without getting sued? So, I can’t take a maternity image in a field?” That is not what the law is saying. You cannot copyright a concept or a genre, only a specific image.

 

You have to consider the complexity and the uniqueness of the image being copied. A newborn wrapped in a blanket is very hard to prove as “your” image. A newborn wrapped in a blanket surrounded by cigar-smoking Rat Packers a la Mad Men is probably going to be pretty easy to prove as “your” image. A maternity image in a field is pretty generic. A maternity image in a field on a unicycle is not.    

 

I’ll give you an example from my own work.

 

This image of Chalita is most certainly mine, but there’s not much about it that’s unique. I could never prove that anybody copied this image. Far too generic.

 

Image

 

However, this second image featuring Chalita is far more complex. The set has been specifically designed down to the last detail. The characters are playing out roles I assigned them, the lighting was done quite intentionally. The mood and aesthetic of it are very identifiable as mine. If someone were to see this image and say, “I love the concept. I would love to play with this idea, do something along these lines, maybe do something in a speakeasy or a café, create an image that looks vintage or nostalgic…” and used my image as inspiration, there is no problem. On the other hand, if someone were to set out to exactly recreate the poses, the set, the light, the mood, the overall aesthetic, and try to make THIS image, I would have a solid case against them, provided I could prove that they had access to the original image. (Facebook and forums makes this quite easy, so buyer beware.)

 

Image

 

 

Inspiration versus recreation

 

A common reaction to this discussion is to insist that the photographer being copied either has it coming (she teaches her techniques in workshops, so she can’t be upset when someone copies her work) or shouldn’t be so touchy about it (she’s famous and I’m just small potatoes, so she shouldn’t care if I copy her image.)

 

This is where we have to separate inspiration from recreation. Or, if you will, art from craft.

 

You may sign up for a workshop designed to teach you someone’s processing techniques. A logical outcome of that is that you will, at least for a while, very likely produce images that are processed similarly to that photographer’s. That’s natural, logical, and at least in part unavoidable. However, that does not mean you can specifically copy an image down to the last detail (subject, pose, background, lighting, processing, props, environment) in an attempt to fully duplicate the specific image. That photographer taught you techniques for you to use in your own work; he or she did not sign away their image copyright to you as part of your tuition. That’s not my opinion; that’s what the law says.

 

Inspiration is a wonderful thing. I see things that inspire me every day. They’re rarely photographs; instead I’m inspired by things like light, music, movies, unusual or funny moments, every great now and then by a photograph. But when a photograph inspires me, it is my responsibility to myself as an artist, and to that photographer out of respect for him and for the law, to use that inspiration to create my own unique work. I have to engage my heart and my mind, to identify what it is about the image that moves me, to process why it moves me, to sort out how to relate that to my work, and myself and to create something that is an expression of me. If I simply set out to make that image I am infringing on their copyright – and I am also letting myself down as an artist.

I am robbing myself of an opportunity to grow, to use my unique voice.

 

Learning how to be appropriately inspired is an art. It takes time, effort, and a lot of frustration at times. And it takes self-discipline, in spades. If you know that you are a natural mimic, I would highly recommend refraining from constantly filling your head with other peoples’ images. I speak from personal experience; when I got serious about photography, I intentionally isolated myself from the entire photographic world. I knew that I would end up making copies of someone else’s work, and I knew that I could not copy my way into being a unique, honest artist. I learned to seek inspiration elsewhere. I avoided the trends. It worked for me.

 

What does this means for the industry?

 

There are an awful lot of photographers these days. It’s a constant battle for most photographers to try to stand out, either because of a desire to be recognized for unique work, or because of a need to succeed financially. Staying in business is not easy these days. Everyone wants to rise above the rest.

 

And yet, the direct recreation of another photographer’s work is largely defended as inevitable and frankly, no big deal. And so, we have turned into an industry that embraces copying while seeking recognition as an artist.

 

Therein lies the rub.

 

It is certainly not easy to come up with your own ideas. It’s very tough. Creativity is not inherently easy for all of us. I don’t consider myself particularly creative, or at least my creativity usually comes in the form of how I capture a scene rather than setting out to create a novel idea. It’s a difficult process, but it’s very worth the hard work. Allowing yourself to give in to the notion that “nothing is new under the sun” will stifle you, and allow you to stagnate. There is always a new way of doing things. There is always something new to be said. If you do your own thing, follow your own drummer, and every now and then something happens to resemble an image of someone else’s? It’ll probably happen, but you’ll know it was pure coincidence. That’s fine. When I had my first gallery show after isolating myself as I mentioned above, I heard tons of comments about how much my work must have been inspired by Sally Mann. I had to actually Google her. But it was the general tone, mood, and subject matter that drew the comments, not specific images of mine designed to recreate specific images of hers. Nothing wrong there.

 

So, photographers, go do your thing, and I do mean your thing. It is so much more rewarding, and a lot better way to spend your time than having to worry about whether you’ve changed that image enough to not get sued. Do your own work, have your own ideas, and you’ll never have to worry about it.