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?”

Dahshur, Egypt. From "Horizons" by Sze Tsung Leong 2007

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.

Bent Pyramid. From "Sacred & Secular," David Burdeny, 2009

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.

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