Copy Cats – Innocent Inspiration or Illegal Infringement? A Look at “Substantial Similarity”

Recently, popular fashion photographer and teacher, Lindsay Adler, posted on Facebook asking fans if another photographer who had published a fashion photo similar to one Adler had previously published had been “inspired” by Adler’s original image or if that other photographer had blatantly copied Adler.  The image in question depicted a close crop of a female model’s face with pale skin, blue eyes, pink makeup, blonde eyelashes and large pink flowers covering half of her face with other flowers framing her head.  The link to the Facebook post is here: https://www.facebook.com/photo.php?fbid=10153075129130344&set=a.10150391059595344.619461.277487930343&type=1&theater

The image is almost identical to an image Adler had published.

Normally, I would have scrolled right past the post as this issue is rehashed again and again by photographers on Facebook.  But when I saw the images at issue, I was quite shocked at how similar they were and became curious as to how Adler handled it and how her fans reacted.  I was quite surprised to see the lack of support for Adler in the comments following her post.   Many photographers chastised her as petty for worrying about the copying.  Others told her to be happy that someone copied her, calling what I saw as blatant plagiarism “flattery.”   These comments troubled me.  But most troubling were the comments that contained incorrect information about what is protected by copyright laws and what constitutes infringement.  And since my job is to help people understand these issues, well, I figured it was finally time to blog again (yes, it has been a while).

Is Copying Another Photographer’s Image Illegal?

When someone copies an original work of another, the risk of copyright infringement is high.  But copying does not always constitute illegal infringement.  Courts encourage inspiration – after all, not much is original in our high tech world centered on “share and share alike.”  So when does “inspiration” cross the line into plagiarism and unlawful infringement of copyrights?  Well, the law says that infringement exists when the copying of an original work is sufficiently extensive that the original work and the copying work are “substantially similar.”  OH, OKAAAAYYYYYY.  Got it?  Yeah, me either.

Once again, as is the case with every situation involving copyright issues, we have pretty vague language to go by and a fact-intensive analysis to conduct.

How Do You Determine “Substantial Similarity”?

         1.         What is protected?  Expression vs. Facts

To start, when a court is asked to determine whether a work copies another to the extent of it being illegal, the court has to determine what is actually protected.  Copyright laws protect an artist’s expression of ideas, emotions, thoughts and feelings.  Copyright laws do not protect facts or things that are not unique to the artist.  So, the first thing one needs to ask is “What are the protected original, expressive elements of the work and what are the non-protected factual elements?”   In other words, what in Adler’s image makes her work unique to her?  Obviously the fact that she photographed a woman is not an expressive element.  The fact that the subject is a woman is more factual.  Likewise, that flowers are in the image is likely not an expression of an idea in itself.  As many of her fans pointed out, photographing a headshot of a woman with flowers has been done.  However, what about the placement of those flowers over one eye and framing the head and chin?  Is that unique?  What about the color of the flowers and the fact that they match the model’s makeup?  What about the specific lighting the photographer chose?  The composition and crop?  The pose and expression of the model?  Those are exactly the types of elements that express the photographer’s creativity and thoughts and that convey a message to the viewer.  These are not “facts” based in reality.  These are elements specifically created by the artist intended to evoke emotion and interest.  As such, these are all elements that a court would likely deem original to the creator and thus protectable.

         2.         How much of the protected elements were copied and how important to the overall work are those elements?

The second question to ask is “Did the copying work substantially appropriate the protected elements of the original work?”  This is a factual determination and thus would be a question for the jury.  To determine the answer, the jury would need to determine how many “original” elements were copied and to what extent.   With respect to Adler’s image, the composition in both was a close crop of the face, taken straight on with a pink background.  The lighting was the same – all the way down the catch lights in the eyes.  Both artists chose models with pale skin, blue eyes and blonde brows and lashes.  Both used makeup in shades of pink only.  Both artists placed exactly three large pink flowers in identical positions on the model’s face.  Both artists instructed the model to stare, unsmiling into the camera.  Frankly, there really wasn’t anything different about the images except that the models were different people.  These images conveyed the exact same ideas and evoke the same emotion and response from the viewer.  In my opinion, this is exactly the type of copying against which copyright laws are intended to protect.

BUT, what if the other photographer put flowers on a model’s face but the flowers were purple and the angle of the photo was different and the lighting was different?  What if the model was laughing and looking off camera?  Would any of those changes affect the overall emotion and “story” of the image?  If so, a jury may not find that the protected elements were copied sufficiently to render the image “substantially similar” and thus no infringement.  The determination would be made by weighing the number of elements copied and determining their importance of the role each element plays in the final image.  In some cases, that might be a pretty tough job for the jury.  In this case, I’m pretty sure the jury would be home in time for lunch.

 

Now, I realize that Ms. Adler is pretty famous in the photography community and that she makes a lot of money holding workshops, appearing on CreativeLive and other venues teaching her skills and sharing her vision with a worldwide audience.  Many of those commenting on her post felt that this somehow justified the copying or at least stripped her of her right to complain.  That issue is interesting and should be discussed.  Let me just ask this:  If the prevailing view is that working photographers who also teach are somehow removed from the protection of both laws and the rules of decency, are we discouraging working talent (those who actually make a living as photographers) from sharing their visions and knowledge?

Just sayin’…

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