When is a Copy Plagiarism and Not Copyright Infringement? (Update 2)
Jörg Colberg asks about the difference between plagiarism and copyright. He points in particular to the ongoing disagreement between Vancouver photographer David Burdeny and photographer Sze Tsung Leong. Jörg has written about this before, but his exact question was more in line with “what recourse does the first photographer have against the second?”
In this case, probably not much. Keep in mind we don’t have many facts to go by, so assuming that Burdeny, or any other photographer, decided to take their own version of Leong’s photographic image, the only claim that could be brought against Burdeny would be one of plagiarism, but perhaps only if Burdeny claimed this image/idea as his own, and perhaps if he did it for commercial reasons. However, if Burdeny, or anyone else, simply took an exact image of a pyramid in Egypt, for personal reasons, the only claim the first photographer would have against Burdeny would be one of flattery. Just think of all of those Kodak Picture Spots at Disneyland. They’re there for a reason; so that every person who visits Disneyland has a pre-framed and pre-selected version of Cinderella’s castle. Nothing wrong with that, and no copyright infringement. Keep in mind also that in this particular case, both photographers are photographing factual not fictional landscapes.
If, however, we were to discover that Burdeny copied Leong’s photographs by printing straight from a digital file, by scanning, or negative, then we have a different can of worms. Also, if Burdeny re-photographed an original Leong, well, then we have an all together different ball game. Now we’re in Richard Prince territory, and although an artistic claim could be made (post-post modernist perhaps), just see what a headache Patrick Cariou has become for Richard Prince.
Don’t forget that I’m talking about this in relation to current U.S. laws. Canadian law may differ and may grant Leong other alternatives. The LA Times today quotes Leong’s attorney, Clayton Caverly, “Without knowing all of the evidence at this preliminary stage, Leong believes that there is a basis for inferring that the gallery owner and the artist engaged in a civil conspiracy to infringe copyright and appropriate his artistic expression.”
One last thing to note is that Burdeny’s gallery’s decision to remove Burdeny’s photographs from the gallery may be a business decision and not a legal one.
UPDATE: March 10, 2010
Jennifer Moss of the Vancouver Sun writes, “In short, by intentionally — or unintentionally — creating work that is too similar to another artist’s, without offering an artistic explanation for the overlap, both artists may have exposed more than just their film.” She quotes me at length as well. I’m very honored.
UPDATE: March 15, 2010
Michele Martinez sends us this other post dealing with plagiarism.