Copying of images has been making the headlines again in recent weeks. The estate of Bob Carlos Clarke perhaps appears to be claiming rights on any close-up of lips and a tongue, and preparing to take Pepsi to court – you can judge for yourself the validity of their claim on the Amateur Photography web site.
For me, such originality as exists in Carlos Clarke’s image is in the biting down of the teeth on the lips, the particular upthrust of the curled tongue, the slight dynamic tilt and the grainy black and white tonalites, all absent from the Pepsi offering, which – as one might expect from the US giant – is bland, pink and ugly.
It is after all, subject matter we all have to hand (or at least mouth) and probably many of us are wondering if in turn we can sue the estate if Mr Carlos Clarke given that we’ve been photographing people with mouths since the 1960s (or whenever.)
Another case over a similar issue has been decided in the Paris courts, and you can read about it on EPUK (Editorial Photographers UK.) The court ruled that a picture used by the “French National Tourist Office Federation (FNOTSI) was a deliberate copy of a Getty Images stock photograph” by Ian Sanderson.
Here there seems to me little doubt about the visual similarity of the two images – and you can compare them in the EPUK feature, which lists the similarities. As Getty argued in court, you cannot copyright the idea of a couple kissing on a roundabout, but this was an obvious attempt to recreate the image, including the appearance of the models, clothing, pose, background and viewpoint.
Sanderson’s image is widely known, and the only surprising thing about the case appears to me that the agency concerned didn’t just put up their hands, say its a fair cop guv, apologise and then negotiate over the fee. I suspect they may well have tried to do so, but found that Getty were intransigent. The court settlement, including costs, is said to be well below the five times the normal fee that Getty demanded, and given that it took 4 years to reach a settlement one suspects the real costs involved, including all the time of the people concerned, may actually leave Getty out of pocket, though the photographer should be in the money.
FNOTSI have of course lost out – and deserve to on various counts. They had to scrap the campaign and replace it – at an estimated cost of 60,000 euros, as well as paying the fine and damages. And apart from the deliberate breach of copyright involved, they only paid the photographer concerned a miserly 1750 euros for the work, expenses and licencing – when getting the original legally from Getty would have cost around five times as much.
This pair of images is just one of those featured earlier in an earlier feature on Visual Plagiarism on EPUK, now updated, which I’ve written about previously elsewhere.
One vital point to make is that it isn’t sufficient for two images to be visually very similar to cry plagiarism. Your original has to really be original in the first place; there can be plagiarism in copying a cliché. And by my reckoning there are several images featured in the EPUK feature that would be disqualified by that test.
Another problem is that of coincidence. I wouldn’t for a single moment accuse Fay Godwin of either plagiarism or producing clichés, but when I opened one of her books some years ago, I recognised one of my pictures, taken at Chatsworth. One that had actually been hanging on my wall for several years at the time. I made my image in 1984, while hers, in the book ‘Landmarks‘ is dated 1988. (The two pictures are not quite identical, and hers is taken or cropped to a square format.) And although I knew Fay and on various occasions we enjoyed going around exhibitions together and sharing our often similar prejudices, I’m sure neither of us had seen the other’s image when we made our own.
There is a big difference between this case and that of the couple on the roundabout. Neither Fay nor myself arranged anything for the photograph, it was simply a matter of being in the same place within a few inches and using a lens with a similar angle of view (mine was I think a 35mm on an OM body) pointing in more or less the same direction in similar lighting.
I think this was my second picture of the sleepy lion and it was made in May 1984. I’ve put the two pieces of sculpture a little closer together, but the resemblance is fairly striking. (C) Peter Marshall, 1984
Strangely enough, looking through my contact sheets later, I found that I had actually made a very similar photograph on two occasions myself, although I’m fairly sure I didn’t remember the first when I was making the second image. Although I’ve generally got a pretty good memory for images, it is something that has happened to me on a number of occasions.