A reader of this blog, Gary Schubert posed a really good question in our comments section. It is one that we feel is a bit too complex for a short answer there, hence this piece. He asked why celebrity photographer Tyler Shields can get away with the often alleged copying of the work of others. He referenced this article http://tinyurl.com/z5h63rp , about photographer Tyler Shields.
A simple question which requires a complex answer. Are the kinds of work referred to in the article and performed by all too many photographers, just copying?
The simple answer is sometimes “yes”, sometimes “no” and most often “maybe”. Each image pair needs to be judged on it’s own merits. There have been many cases with similar facts and/or imagery. Lawyers and the courts have had lots of cases to refer to when seeking answers – typically in connection with a case brought alleging copyright infringement.
First and foremost, you have to understand that an idea is not copyrightable, but the expression of that idea is possibly protectable – meaning you can register it and receive legal protection under the copyright law. You need to have “protectable elements” in your work, be an illustration or photograph. You cannot take an actual photograph, that physical image, and alter that photo by any particular percentage or degree and declare it a “new” photo which is entitled to its own protection. The old adage of, “If you change the (original) 30 or 40%” – or whatever percentage strikes the fancy of some non-lawyer – is a myth. There is simply no basis in truth, fact or law but like cockroaches, all attempts at eliminating this pesky myth ultimately fail.
You can take the essence of an idea or photo that you have seen: ie. Two kids throwing water balloons at each other at a pool or even two Asian kids throwing water balloons at each other at a pool and photograph it yourself in a unique or different way distinctly different from that of the original – or – you might enter an often confusing and grey legal principal known as “scenes a faire”. The term refers to a scene that can only be photographed in one or a very limited way. Or in similar words: The term refers to situations in which there is essentially no other way to express a particular idea except by using certain elements and in such instances, those elements will often be termed “scenes a faire.” If the “new” image qualifies it will not be treated as an infringement.
It’s all in the deciding the idea, the expression and the relationship (if any) to an image whose creator believes has been infringed. The key question is deceptively simple: Is that the only way to express an idea? In our book, The Copyright Zone, we use the time-honored example of two hands shaking to show an example of “scenes a faire”. IF however you were to photograph two distinctly different bionic hands made by two different manufacturers, one cherry red the other sky blue (the companies’ respective colors) to use in an ad announcing that the two bio tech firms had merged – well that is an image likely to contain sufficient copyrightable elements for a proper registration.
One case on the books regarding scenes a faire is about a photo of a man giving his daughter a piggy-back ride. The original photo was of a criminal and murderer, Clark Rockefeller (an alias) and when a photo of him and his daughter was recreated using, actors for a movie publicity image on “Rockefeller”, the photographer of the original image sued. He lost as the courts ruled that it would mean any photo of a father giving a little girl a piggy back ride could get the creator of that image sued.
Another notable case was that of Penny Gentieu who sued Getty over having photographers shoot images similar to hers where babies were placed on lit, white Plexiglas so as to appear “floating”. She lost, which was no surprise to Jack as he’s been photographing babies like that (as many others have), for a long time, predating that lawsuit. Peter B. Kaplan sued in another case regarding a POV image of a man’s feet at a building ledge seemingly about to jump onto the street far below. He sued over a similar image and again the principle of scenes a faire came into play. Ed’s favorite example is a photograph of the scoreboard at the Orange Bowl in Miami showing the final score (Jets 16 Colts 7) of Super Bowl III. Which in case you haven’t heard, was the last time the Jets were in a Super Bowl. Multiple photo of that specific scoreboard would be difficult to allege and establish infringement. Point being is that photos of an inanimate scoreboard taken at an exact time on a specific day are generally not going to vary very much.
Many/most of these type cases that were filed with Federal Courts were settled because they were much weaker or much stronger cases. These things tend to get settled before they end up in courtrooms and the settlements are nearly always confidential. Yet another reason why you need to hire an attorney who by experience is acutely aware of the realistic range of settlements of such cases. The settlement amounts are almost never made public.
Some artists have been sued for using images in their art and settled. Like Andy Warhol and Robert Rauschenberg. Rauschenberg appropriated an image was sued by photographer Morton Beebe and settled. Photographers Fred Ward, Patricia Caulfield, and Charles Moore sued Warhol and he settled with them. After that he only used images he simply asked for and received permission or where he purchased a license to use them. Many critics and writers in the art world seem to overlook these cases often due to their ignorance of the facts.
In Tyler Shield’s images, we see “colorable” (legalese for, “disputable”) issues depending on the image. Like his “copy” of Sally Mann’s smoking girl. Does it mean that any photo of an underage girl with attitude smoking a cigarette “belongs” to Sally Mann. I’m sure the late Mary Ellen Mark would have a word to say about that and she would likely be joined by many other urban photographers or even Martin Scorsese (recall his young Jodie Foster in “Taxi Driver”). Anywhere from 25 – 65% of the American public regularly or occasionally smoked cigarettes in years gone by and lots of those people were young girls.
The image of the girl being chased by an airplane, as pointed out in the article would have Alfred Hitchcock and Cary Grant raising an eyebrow. And some examples like the father and daughter to Jack is a real stretch to say it’s a copy. But some like the lipstick image do at first look appears to be a copy. Then again there have been are many iconic lipstick shots used in advertising – Mel Sokolsky’s comes to mind among others. But it’s not for us or any other commentator to say, but rather for a judge and/or jury to determine. Judging it on social media is just an exercise in debate, opinions fly especially when facts are in short supply.
So where is the line between influence and illegal copying? There is a line, but it can be fuzzy or wavy and it most often drawn depending on the specifics of that image, access to the “original”, proof of intent to copy and in Tyler Shields’ images we feel some appear actionable, some do not, and many are in a grey area (or gray, depending on your spelling preference). We can’t possibly be sure unless we are privy to all of the facts and circumstances behind the creation of the images at issue.
One last item in all this is the fact that some photographers do not or cannot sue. Sam Able was never able to sue Richard Prince over the Marlboro photos that Prince copied the photo directly (not just take a similar image but use the ad image itself). The reason is that Mr. Able sold the copyright to Marlboro, so he had no rights to the image he took. In reality, too many photographers who do have the copyright do not sue and so the beat goes on. (Another reason not to ever give any agency the right to pursue your copyright claims),
We do cover a lot of this in our book, The Copyright Zone, but this is sort of a taste about some of these complicated issues. It’s worth much more discussion, but this is the “short” answer. We are reminded of what famed illustrator/friend Anita Kunz tells her students, “Be original, be truly creative and you will never have to worry about being accused of stealing from anyone”.