Can You Plagiarize A Photograph?

from the questions,-questions dept

Fri, Feb 9th 2007 3:26am — Mike Masnick

We've had a few very interesting articles on rethinking plagiarism lately -- with part of the point being that just about all new creations and ideas are built on the work of those who came before them -- and it seems silly to prevent all of that with overly aggressive worries about copyright and plagiarism. In the Jonathan Lethem article we linked to earlier he discusses (or, rather, he plagiarizes a discussion) on how there were concerns when cameras first came about, as to whether or not taking a photo of a person or a building was stealing from them. Luckily, people realized this was kind of silly... but it seems that the matter isn't totally settled yet. Slate is running an online slideshow questioning whether or not photographs can be plagiarized. Apparently there's a bit of controversy, as an art exhibit includes a bunch of photographs by a pair of photographers that look quite similar to ones taken by a different photographer (who says the pair had asked for advice on "exposures, film, and vantage points"). The photographs are clearly different -- but of the same composition. If anything, they are an homage to the original, and it seems silly to accuse them of plagiarism, especially since they are absolutely different shots. And, if you could claim plagiarism on shots from a similar vantage point, just think of all the fights over family photos at various tourist locations?

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51 Comments

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Protoplasm, 9 Feb 2007 @ 4:00am

If you "rethink" you are plagarizing already :P
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magicdiablo, 9 Feb 2007 @ 4:19am

If I take a picture of the George Washington Monument, and then a person stands in the same spot, with the same kind of camera, film, etc. and takes the same photo, that is plagiarism......seems silly to me.
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- uialtum, 9 Feb 2007 @ 4:29am
  
  Re:
  no, but if take a picture of the George Washington Monument and put it on an internet gallery and a kid prints it off for his own work, that definatly is plagiarism
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  - Anonymous Coward, 9 Feb 2007 @ 4:35am
    
    Re: Re:
    that's not what is in question here. obviously that's plagiarism, but we're not talking about copying an actual photo. we're saying if you take a photo in a very similar fashion or just take the same picture.
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PhysicsGuy, 9 Feb 2007 @ 4:35am

Re: Re:
that's copyright infringement :P

jeez, this is techdirt, i'd hope you'd have plagiarism, copyright, and trademarks well defined to yourself by now... :P
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Gary LeDrew, 9 Feb 2007 @ 4:38am

plagerism
As Picasso once said, Good artists copy, great artists steal. What is really original If you change something it's yours
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- emmie, 15 Apr 2007 @ 11:03pm
  
  Re: plagerism
  That's TS Elliott who said that and the exact quote is:
  
  "Immature poets imitate; mature poets steal"
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Sidney, 9 Feb 2007 @ 4:51am

Duh, what'd you expect from an artist
The vast majority of artists never do anything truly original or meaningful in their lives, yet most have brainwashed themselves into believing they and their creations are the only truly worthy, truly meaningful, gifts from God to humanity. Most spend their lives worshiping mainstream, modern, artists who are actually nearly skillless no-talent hacks who lucked into fame by virtue of a bored millionaires wife or a sly gallery owner selling to suckers.

I know. I am one and I know legions, including many truly educated, skilled, and creative older artists who sit back and laugh or shake their heads at the herds of morons making, selling, and buying art.
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- Blue Velvet, 9 Feb 2007 @ 5:08am
  
  Re: Duh, what'd you expect from an artist
  The vast majority of artists never do anything truly original or meaningful in their lives, yet most have brainwashed themselves into believing they and their creations are the only truly worthy, truly meaningful, gifts from God to humanity.
  I couldn't have said it better. Right on!
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Anonymous Coward, 9 Feb 2007 @ 5:24am

Copying inspiration
I think this is more like what they're talking about...

Seeing a photo of a ladder leaning against a mirror, then take a picture of a different ladder, painted a different color, leaning against a different mirror on the other wall (mirror image - excuse the pun).

Now is THAT plagiarism?
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Jeff R, 9 Feb 2007 @ 5:28am

Artistic?
What makes sense to me is that copyright should only apply to something created by the artist using some creative process. The skillful use of the camera, using the right techniques to get the best shot to me is not a creative process.
A photo of a landscape is a recording of something the photographer did not create.
If a photographer uses the photo to create an artistic creation by modifying and manipulating the photo than the result should be copyright.
Putting a photo of a landscape or a landmark should be considered the same as making it public domain.
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_Jon, 9 Feb 2007 @ 5:29am

What if I take a picture of a picture, then crop it so that it looks like the original?
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MDG, 9 Feb 2007 @ 5:32am

Had this Happen
I had to go through this appx 5 years ago - I sold a photo for a book cover. Photo was of a canyon in a Nat'l Park. The publisher called and said my photo had been challenged, by whom I don't know - that it was the same as a photo the "challenger"? had taken. I scanned the photo next to the negative, sent them on to the publisher, and heard nothing for a few months, until they notified me that they couldn't use a photo I didn't have the copyright to. Totally bogus. I shot the pic from the same vantage point as 1,000s of others have...the publisher saw it on my photojournal website and tracked me down...but I ended up losing the sale (a whole $250) because of this type of insanity.
Can you copyright a view of a public place, from a public place? Insane, I tell ya....
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Greg Lastowka, 9 Feb 2007 @ 5:41am

Plagiarism, Copyright, Photos, etc.
Hi Mike --

You've got to be careful with your terms here. Plagiarism is more akin to trademark infringement or false advertising than it is to copyright infringement. I've got an article on this issue here that lays out the legal issues:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=656138

Bottom line: the Supreme Court has recently said that there is no law against plagiarism. So the question to ask here is really whether taking a photo of a painting is copyright infringement.

With regard to that, you've also stumbled on a very odd little corner of copyright law. The leading case on this is Bridgeman, which you can find here:

http://www.law.cornell.edu/copyright/cases/36_FSupp2d_191.htm

Bottom line: if a photograph is a "slavish copy" of a painting, it should not qualify for copyright protection.

And, fwiw, Judge Posner has a new book out on plagiarism that I have not yet read, but the LA Times has a review here.

http://www.calendarlive.com/books/bookreview/cl-bk-kirsch28jan28,0,5130367.htmlstory
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- Mike (profile), 9 Feb 2007 @ 11:22am
  
  Re: Plagiarism, Copyright, Photos, etc.
  Hi Greg!
  
  You've got to be careful with your terms here. Plagiarism is more akin to trademark infringement or false advertising than it is to copyright infringement.
  
  Yes, I agree with you... but the point is that the people involved were the ones who cried plagiarism... Part of the point is to highlight how people think about these things, to the point that they no believe something like this could be plagiarism.
  
  Thanks for the links...
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Anonymous Coward, 9 Feb 2007 @ 6:09am

what's the difference between copyright infringment and plagiarism?

they both include copying work that isn't yours.

it does seem funny that pictures are ok to copy, yet the printed word isn't.
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Sanguine Dream, 9 Feb 2007 @ 6:18am

Oh dear...
This sounds too dangerously close to a future battle of copyright/trademark/patent.
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Marc Moss, 9 Feb 2007 @ 6:20am

Appropriation vs. Plagiarism
To take a direct copy and attempt to pass it off as one's own is plagiarism. Any change made to the work, however, and the artist can call it his own by way of "appropriation".

via Wikipedia: "To appropriate something involves taking possession of it. In the visual arts, the term appropriation often refers to the use of borrowed elements in the creation of new work. The borrowed elements may include images, forms or styles from art history or from popular culture, or materials and techniques from non-art contexts. Since the 1980s the term has also referred more specifically to quoting the work of another artist to create a new work. The new work may or may not alter the original. "

http://en.wikipedia.org/wiki/Appropriation_(art)
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Rod Burch, 9 Feb 2007 @ 6:23am

Photo Plagirism
I can't imagine how any photo could be plagirized. It is a moment in time that will never come back. The lighting will never be precisely the same, camera angles and lens choices, even film emulsions will differ.
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Stephen, 9 Feb 2007 @ 6:55am

What about Xerox?
Is taking a picture of a document plagiarism?
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- miranda, 15 Apr 2007 @ 11:17pm
  
  Re: What about Xerox?
  #18,
  If you are using your documentation in a way that could be considered commercial it is a grey area and I recommend staying away. With new media changing the way people share information, the laws have become unclear and each case is handled individually. Consider the owner of the document.
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vuxes, 9 Feb 2007 @ 7:12am

Clearly pligiarism
Thousands of people can take a photograph of a building and this is obviously not plagiarism.

But when someone "creates" a photograph with the right angle, waiting for the right time of day, the right light, and creates a stunning masterpiece that brings him or her fame and recognition, that picture is his/hers.

Anybody can "copy" the picture by taking it in similar conditions. They can even sell it and display it in an art gallery. But ethics says to to give credit where credit is due.

To copy such a famous picture and claim it's your own photographic ingeniosity that made it possible is plagiarism.

In paintings, it will even get you into prison if you copied a famous painting and claim it to be your own -- never mind the ridicule that will be piled on you.
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JaneWithersteen, 9 Feb 2007 @ 7:44am

how about a building?
An Introduction to the
Legal Aspects of Travel Photography

"...Works of art - sculptures, paintings, and even toys - are protectable by copyright. Furthermore, buildings created on or after December 1, 1990 are protected by copyright. A copyright owner has the exclusive right to reproduce a copyrighted work, and photographing a copyrighted work is considered a way of reproducing it. Thus, you may need permission to photograph a building or an art work.

Fortunately for photographers, the copyright in an architectural work does not include the right to prevent others from making and distributing photos of the constructed building, if the building is located in a public place or is visible from a public place...."

I do recall several years ago confusion over this was preventing tourists from taking snapshots of some governmental buildings because it was thought to intrude on the copyrights of postcards in the gift shop!
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rodda, 9 Feb 2007 @ 7:58am

endless
my wife is a professional portrait photographer so this is an important issue for us. sometimes a family will show up for thier shoot and they will bring a camera with them. the look of shock on thier faces is classic when we ask them to put it away. My wife has gone through all of the work to find the location, make sure the natural lighting is good and to compose the shot. Its a mess. same thing happens at weddings. this to me is plagiarism. why would they want to order prints from us if they have almost the same picture on their 6 megapix cameral? it is the fruit of someone elses labor. and dont even get me started on how many clients steal from us by scanning images at the local grocery store.

on the other hand my wife will often look through fasion magazines for inspiration. she pays attention to how the models are posed, lighting, and even the setting. sometimes she will take a shot with an all white background using the same ligthing and posed nearly the same as you would find in a fasion magazine. is this plagiarism? s
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- Bumbling old fool, 9 Feb 2007 @ 8:11am
  
  Re: endless
  I'd fire your wife on the spot.
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- PhotoPro, 9 Feb 2007 @ 9:36am
  
  Re: endless
  If your hired photographer is so unskilled that they are concerned that their ability with framing, composition, exposure-length, developing, post-picture editing, etc. will be shown up by your point-and-shoot shot then you should fire them on the spot.
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- Sawyer, 9 Feb 2007 @ 11:41am
  
  Re: endless
  Wow, this seems like a massive double-standard to me. In one breath you say it's not fair for the family to take a picture because it would copy your wife's hard work, yet she will "take inspiration" from a magazine? Pot, meet kettle... =)
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- Gregg, 10 Feb 2007 @ 3:24am
  
  Re: endless
  Someday, someone will explain to me why wedding photographers, who are HIRED TO PHOTOGRAPH SOMEONE ELSE'S WEDDING, think they should control the resulting photographs. Hello, you've been paid already, what are you still doing in their life? If your wife was like a freelance sports photographer, going to weddings and taking the pictures for free in the hopes of selling prints later, that's a different story, but in this case she is clearly just being greedy. If she isn't making enough on the shoot, then she should raise her prices, not hold the pictures for ransom.
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Anonymous Coward, 9 Feb 2007 @ 8:05am

So, playing devil's advocate here for a minute. Why should a photograph be any different than a book, for example? A books copyright is protected, which includes protection against plagiarism. Another author cannot simply use the same storyline, characters and general construction of the book and simply change the names of the characters in it. So why should a photographer be allowed to do the same thing? What is the fundamental difference between a photograph and the written word that should make one subject to plagiarism and not the other? Both are artistic works.
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picSnapper, 9 Feb 2007 @ 8:36am

re: anonymous coward / devil's advocate
I'd say your argument isn't valid due to the very different natures of writing and photography.

True, you can't just rewrite someone's elses book and use the same characters, storyline, etc.. However, in photography, you are merely forming an image of something else that was already created, something already existent.

My opinion is unless you copy an actual print, negative or digital file of someone else and then claim it as your own work, it isn't plagiarism. It might not be ETHICAL to nearly duplicate another photograph, but I just can't see it being plagiarism. I'd prefer to see this specifically and legally ruled NOT plagiarism.

Another theoretical situation: what happens when two photogs at a major, history-making sporting event are standing side-by-side and grab a shot of the game-making play in the same moment? One sells his shot to Sports Illustrated, the other to a rival publication. Do we do thousands of hours of analysis to find that photog A seems to have taken his shot 1/1000 of second before photog B, so photog B is liable? I don't think so. I know it's an extreme example, but hardly unlikely.
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;lk, 9 Feb 2007 @ 9:28am

i like the momemt in time thing..
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Fotograferer, 9 Feb 2007 @ 9:30am

My take
I'm a photographer. I post my photos on the web and try to sell them. If somone sees my shot of a lighthouse and attempts to take the same shot, they're paying homage to me; thanks and more power to them. If they sell their photo, more power to them, I should've marketed mine better. Anyone who has EVER went to any art school has tried to immitate some other artist.

My dad was a farmer. He sold veggies. I saw how he did it. I buy the same seed and grow mine the same way. I sell mine down the road from his. Is that plagarism? Is that copyright infingement? NO! It is me honoring the master he taught me how to do it.

The only way you plagarise a photo is to steal that photo (not taking your own) and reproduce in some way and not give credit for it.
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Sanguine Dream, 9 Feb 2007 @ 9:40am

I don't know...

Another theoretical situation: what happens when two photogs at a major, history-making sporting event are standing side-by-side and grab a shot of the game-making play in the same moment? One sells his shot to Sports Illustrated, the other to a rival publication. Do we do thousands of hours of analysis to find that photog A seems to have taken his shot 1/1000 of second before photog B, so photog B is liable? I don't think so. I know it's an extreme example, but hardly unlikely.

With the way that the major league sports are getting these days about trying to control every aspect of the sport they are in I honestly think this could happen in the not to far off future.
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korry, 9 Feb 2007 @ 10:07am

and still
anna nichole plagirized marliyn monroe...sue her death...
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Terces, 9 Feb 2007 @ 10:13am

Re: My take
Well said Fotografer... and that really should be the end of discussion.
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Mr. Lucas Brice, 9 Feb 2007 @ 10:23am

Stupid
The only way one could plagiarize a photograph is if one were to reproduce an existing photograph and claim it was one's own, or if one took a photograph that was similar to an existing photograph and claimed it was by the photographer of the existing photograph. Other than that, the discussion is ridiculous.
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SATAN, 9 Feb 2007 @ 12:44pm

dumb
that's just dumb
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Matt Bennett, 9 Feb 2007 @ 1:10pm

So, apparently only one person could ever photograph the white house from the front, and then ouen the copyright on photographing the whitehouse?
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1st Computer, 9 Feb 2007 @ 1:11pm

re: what do you expect from an artist
why stop with an artist...most people never do anything oringinal....not even stealing or sitting on the couch. nothing
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Tim, 9 Feb 2007 @ 2:54pm

Eiffel Tower at night photos can't be published
Since 2003 you can't publish photos of the Eiffel Tower taken at night. You can photograph it, but you can't publish or sell them.

http://blog.fastcompany.com/archives/2005/02/02/eiffel_tower_repossessed.html
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ScytheNoire, 10 Feb 2007 @ 12:43am

Reason #233,863
Reason #233,863 why America is screwed up
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rodda, 10 Feb 2007 @ 6:35am

endless
Iteresting responses you guys had to my delima around this issue.

Profoto
No we are not affraid that we are going to be shown up by a point and shoot. Its the reality that my wife did most of the work already. Lots of people have photo editing tools that can make a picture look really good these days even with a point shoot. If these programs did not work so well they would not be marketable.

Sawyer:
Not sure what the fine line of being inspired by someone elses work and plagiaring is... so thanks for answering my question with name calling, that was pretty productive.

Greg:
For events my wife does release the a CD or DVD with all of the images untouched if the person wants the images printed by us or retouched then we negotiate that seperately. For portrait customers we do hold the images hostage due to all of the touchup work that goes in to it. Honestly i am not sure how else to do it and still pay our bills.
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Danno, 10 Feb 2007 @ 8:12pm

Intellectual Property is a fundamentally flawed concept.
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Rodger Aiken, 11 Feb 2007 @ 10:25pm

Not Plagiarism
You cannot plagiarize a photograph. Why should photographs be any different than written works? For the simple reason that a photograph is static recording of an event in shared reality; It does not matter how much work or preparation you go through to take a photograph, you've only recorded a single moment in time from a single point in space. That photograph is unique because it is a record of a moment which will never occur again. Even if someone set up everything exactly as you did, and photograph it they have not plagiarized you, because the moment they have recorded was not the moment you have recorded. Time moves in one direction; photographs are recordings of one single moment in time, thus no two photographs are exactly the same regardless of the objects in them or the vantage point.

I too am an artist, and an avid photographer and potography enthusiast. Is this plagiarism? NO. Get over it. Is it tacky? kinda.
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Freelance, 12 Feb 2007 @ 2:05pm

Potographer's ownership of photos
Dear Endless,

Your wife does not "own" another persons wedding. If hired to shoot a portion of the photos shot that day, she should do her job and charge whatever the market will bear for her photos. Asking another person, particularly a member of the wedding party, to put away a camera at a wedding is clearly out of bounds to the professional photographer's relationship to the event.

In the photographer's studio, no other cameras... makes perfect sense. In a location/setting/lighting that the photographer researched and provided, no other cameras, fine. At a location that has nothing to do with the photographer... specifically including MY wedding... I'll bring all the cameras I want.

By the way, I feel somewhat "extra" qualified to comment on these issues as I made my living for years as a freelance photographer.

I predict we'll see the day when "custom" photographers, such as wedding and outdoor portrait, are paid for their expertise, not for their media.
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- endless, 13 Feb 2007 @ 9:14am
  
  Re: Potographer's ownership of photos
  Freelance,
  
  We have never asked a person to put their camera away at a wedding... actually my wife very rarely ever shoots a wedding. The problem with cameras at weddings is more about logistics then profit. First their flashes used to set off our slave flashes, which we dont use any more. Second is that they get in the way and often slow the process down. Especially if the photos are taken after the wedding and before the reception. As I think about it there still is a little bit of a frustration about shots that my wife might compose and then have someone shoot over her shoulder. When it comes to the photo journalism aspect of shooting a wedding then i have no problem. let people shoot away. Heck we would even be glad to help develop all the film from the disposable cammeras that end up on all of the tables and such.
  
  Honestly most of our profit comes from marking up the photos. What we wish we could do is to bill for our time (expertise) rather than our media so that we do not have to worry about scanning and other forms of theft. It is just such a hard sell to a non comercial client.
  
  This dialogue has been really good for me. Its helping me to rethink some things.
  
  ben
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beth, 27 Feb 2007 @ 10:42am

that is so unfair i need them for school and we cant even get them
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Ms Tuscany, 5 Oct 2008 @ 7:15pm

plagerism
What if you can't even get close to popular bands or movie stars to take pictures? I like to reproduce them into acrylic negative paintings.
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Anonymous Coward, 12 Jan 2010 @ 10:31am

can you see a photograph
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Anonymous Coward, 12 Jan 2010 @ 10:32am

can you see a photograph
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Anonymous Coward, 5 Feb 2014 @ 9:43pm

kfodpgfpdoajvifeohothidohncikecn jk jk but I have a project and I want to use this clip art pic is that playgurisme
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