Photo Attorney

Mar 10, 2007

Borrowing Copyrights

(Excerpts from an article posted at The Online Photographer)

David Segal, a writer for the Style section of The Washington Post, recently posted an article/slide show on Slate asking whether photographers can be plagiarists. Legally, the answer is no.

According to the Merriam-Webster Online Dictionary, to "plagiarize" means:

"to steal and pass off (the ideas or words of another) as one's own use (another's production) without crediting the source;" or

"to commit literary theft: present as new and original an idea or product derived from an existing source."

While plagiarizing may lead to a failing grade or a form of humiliation, the legal recourse available to creatives for the theft of their work is found in copyright law.

Some may be surprised to find that the purpose of copyright law is not to protect the work of creatives, but, as stated in Article I, section 8, clause 8, of the United States Constitution, "to promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Copyright law attempts to achieve a balance between public interest and the rights of authors/artists so that artists will be encouraged to create and the public will be the ultimate beneficiary. In many ways, the priority leans towards public concerns when there is any conflict in those interests. As a result, the law may not seem fair or just to the copyright owner.

All photographers are inspired by other artists, including photographers. That is how art develops. But when a photograph is so similar to another work that it appears to be the same expression of the idea, it may be difficult to believe that it was an accident. Imitation may be the sincerest form of flattery, but no one is grateful when work is stolen. However, courts don't always find infringements in those cases despite there appearing to be obvious copying to the outsider's eye. For instance, artist Jeff Koons was found to have infringed the German shepherd puppies' picture in Rogers v. Koons but not when Andrea Blanch sued him for a similar appropriation.

Law and ethics don't always take the same path. Does infringement have the same social stigma as plagiarism? It might if photographers continue to educate others about their rights. While photographers may not have the same social sword as authors do to fight plagiarism, at least we sometimes have a mightier legal sword to battle infringements.

Take my advice; get professional help.

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