Copyright or Copycat?
September 19, 2007
“If I have seen further (than other men), it is by standing upon the shoulders of giants,” is a quote attributed to Isaac Newton in reference to his dependency on Galileo’s and Kepler’s work in physics and astronomy. There is certain nobility in giving credit to the great thinkers that went before to clear the mental pathways enabling clearer reflections in science or math. But there is no nobility in COPYING work. I often suggest photographer websites to illustrate how top professionals have handled different projects. It goes without saying, I would hope, that you are not meant to copy the images you find there; but to study them as examples of really good work in a particular genre against which you can measure your own.
How do the US courts decide if an image has been copied illegally? When should you concern yourself with whether or not your image is copying someone else’s? When you think someone has copied yours? I’m not an attorney and thus not qualified to give advice on copyright. Nevertheless, I’ll point out some general observations based on the excellent book, The Professional Photographer’s Legal Handbook by PACA attorney and my friend, Nancy Wolff. If these issues interest you, and they should, I highly recommend the book available on Amazon. If you have specific issues surrounding copyright, please see the references below.
Use common sense. Here’s an example. You are planning a trip to Florence, Italy. You review guidebooks and other sources to get a shot list for your trip. You note images of several lovely historical spots that you too would like to photograph. You might even want to photograph them in a similar way, during the same time of day from the same lookout. (You discover upon your arrival that the place the images were shot is readily available on the tour bus route.) You climb on the bus and set out to create your scenic shots of Florence. In the end you feel very successful because your images are as good as or better in your opinion as the ones in the guidebook and very closely resemble those very images. Have you violated anyone’s copyright? Probably not. All four of the images of the Duomo in Florence shown here are by different photographers.
For our second example let’s say that you see a very unique photo in an ad campaign. The image illustrates an unusual concept and does it in an extremely unique and distinctive fashion. You figure out how it’s done and create your own copy. Your image is so close that the average person would think it was almost an identical image on casual review. Now you have crossed a line. You are violating the copyright on the image. (Don’t be confused: its not because the image is in an ad but because you have so closely copied the execution of a very unique image.)
According to Nancy Wolff’s book the following is the two-part test used to determine if a work that looks similar to another could be violating the copyright of the first. First if you think your work has been copied, you will have to prove that the person copying the work had access to the work in the first place. Obviously if your work is posted on a public website such as Dreamstime, access is easy. The second requirement is that “the copied images must be substantially similar to the original.’ Nancy mentions the “Ordinary Observer Test”. This means that the images should seem substantially similar when viewed by the average person.
But wait! Don’t the images of Florence meet the two tests? Access to the images is available to anyone that looks at a copy of the guidebook and your photos look very much like the ones in the book. So why would it be very difficult to prove infringement? Because the subject is so common. I watched at least ten people photograph the Duomo in Florence out of the same window within 15 minutes of each other during a luncheon at CEPIC in June. Most of those photos will look very much alike because they are of a common subject that is photographed hundreds, if not thousands, of times annually from the same point of view.
You can’t copyright an idea but you can copyright the expression of that idea. The two images that return in a search for face/map are based on the same idea: a woman’s face and a world map. But to me the execution of the concept is different in each image. (But then remember I’m not an attorney; I’m also not judge nor jury.)
Be honest with yourself. You know when you are copying a distinctive image. Just don’t do it. Build on the images that you admire and create your own unique vision. And if someone is copying you, take him or her to task for it…but don’t bother the courts with it unless your image is truly unique.
The ten copyright commandments
Everything you’ll ever need to know about US copyright and a silly cartoon show (skip the cartoon)