Is There A Difference Between Inspiration And Copying?

from the I-think-so,-but... dept

We were just talking about the extremely fuzzy border between idea and expression, and how that leads to problems and the stifling of creativity. Well, how about a similar discussion between “inspiration” and copying? We hear this all the time. Whenever we show widely accepted pieces of art that are actually quite similar to something earlier, defenders of copyright insist that this is fine, because it was just “inspired” by the original, rather than a direct copy. But where’s the border between inspiration and copying?

Take this case, which was first called to our attention by Stephan Kinsella, in which photographer Janine Gordon sued photographer Ryan McGinley claiming that 150 of McGinley’s images were “substantially based” on her own photos. The site PetaPixel (linked above) has posted some of the “evidence,” which should immediately make it clear how ridiculous this lawsuit is:




Honestly, it’s difficult for me to even say that McGinley’s are “inspired” by Gordon’s, let alone copies. Yes, some of them cover similar subject matter, but is Gordon seriously claiming that only she has the right to show “a couple kissing passionately” if the “girl on the right has long silky straight brown hair and her eyes are closed”? Separately, in that one, she highlights that the girl has high cheekbones, but I don’t quite see how the high cheekbones are part of Gordon’s copyright at all. And the one of the guys jumping? She’s really claiming a copyright on the fact that arms are curving, and the legs are in a v shape? I don’t know if Gordon has looked at people’s legs in a while, but they’re all pretty much “in a v-shape” quite a lot.

Gordon is apparently seeking $30,000 per infringement, which is the maximum statutory rate… though, to be honest, I’m surprised she isn’t going for the full $150,000 by claiming these are “willful” infringement. Either way, it’s yet another example of how the state of “ownership culture” today leads people to think that they can lock up ideas, and anyone who does anything even remotely (perhaps very, very remotely) similar, somehow must owe them money.

It’s a sad statement on the state of culture today.

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Comments on “Is There A Difference Between Inspiration And Copying?”

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57 Comments
ken (profile) says:

Without the Consent of the King.

What copyrights and patents essentially are is the old idea of consent of the King. No one can produce except for those with the King’s favor and all others are subject to it and forbidden to offer up competing wares. Those who dare to buy or sell without the King’s consent are labeled pirates and imprisoned or made indentured servants.

Nothing has changed…

Anonymous Coward says:

Re: Not even close

Also, is Gordon saying that the couple he photographed can never have anyone else take a photo of them kissing? Because that photo would probably be more similar than the one shown here.

If this lawsuit holds up, you’d better not use two different photogrpahers for your family in different years. The first could claim copyright, since he has all these similar pictures of you!

ChurchHatesTucker (profile) says:

Re: Re: Not even close

If this lawsuit holds up, you’d better not use two different photogrpahers for your family in different years. The first could claim copyright, since he has all these similar pictures of you!

Pshaw. I’m hoping he wins. I’ve got a box full of old family photos that I can use to nail his infringing ass! “Kid returning to the beach from a swim?” MINE!

Greevar (profile) says:

This is a repeat of the Rhiana video fiasco.

So who owns the copyright to a photo of a family grouped together and smiling? If subject matter is suddenly under copyright now, then all of those family photos out there are infringing on someone’s copyright. How about wedding photos? Or maybe birthday photos? Who holds copyright on that subject matter?

This culture of ownership is getting stupid. They aren’t even copies. If they were to suffice to be called copies, they would have to be a pixel per pixel duplicate. That would be a copy and that might be infringement. Two photos shot by two different photographers with different subjects in different places that have different lighting, costume, and makeup are not copies. Even if the other photographer attempted to duplicate Gordon’s work manually, it still wouldn’t be a copy because it’s an entirely new photo created to look like the other, but it’s still not a copy.

McFortner (profile) says:

Imagine this:

Time: 2020
Place: Anywhere on Earth
Subjects: An average citizen, his family, and a police officer

It’s just another average day. People are out with their families on vacation. As one citizen prepares to take a few shots for the family homepage, a police officer approaches, his hand on his sidearm.

“Move your hands away from the camera!” The officer calls out. “Let me see your permit!”

That Anonymous Coward says:

Question – While Janie is tied up in this tempest in a teapot, is she actually creating anything new? Or has she decided that, after consultation of a lawyer, she has a solid grip on every possible image in the world and now just need to exert her dominance.

From the small sample of images, it is hard to tell if others might actually be “copies” and these other images are just being added to increase the potential profit.

I understand that sometimes “arteests” are sometimes a little to full of themselves, but given the current atmosphere of it costs nothing to sue, and you can just out spend them to win it should become much more clear that the law is broken.

This is how intellectual property works now.
I own this image and anything I say that looks like it is infringing and you should settle because I will win trillions in court.
I own this idea, it does not matter I’ve never done anything with it and its so vague I could sue God for creating light, but it is infringing and you should settle because I will win trillions.
My clients own this movie and your IP address shows up on a list, you should settle because its less than a trial would cost.

Intellectual Property is our most important asset!
It exists to keep lawyers busy, and money changing hands with nothing created in the process.

Mike should we take up a collection to purchase a patent on a system of registering ideas, not using them and then using them to sue people who had similar ideas reached with or without knowledge of our vague patent? We could get rich.

Intellectual property laws need reform in this country, move outside of the weird place law makers live and look at a real life example of regular people being screwed.

A grandmother had died. The daughter wanted to make a poster out of a photo to put up at the wake for people to remember grandma. The fear of the corporation running the store being liable for copyright infringement meant they “trained” employees to be able to tell a copyrighted photo from a noncopyrighted photo in 1 second and stop these evil scofflaws. And this has happened multiple times with family photos or “professional” family portraits. Now in a perfect world this is just to keep people from ripping off a professional photographer by just copying their wedding album rather than purchasing overpriced prints. But when the law causes more distress to someone suffering a tragic loss one is left to wonder if it is not time to review the laws. Maybe it is time to change the model professional photographers use, and assign the copyright to the families.

These cases are just the newest symptoms of a broken system, and if these 4 photos are the damning evidence… its much more broken than any one of us “freetards” ever imagined.

Zot-Sindi says:

Just a typical example of copytards… I mean, people using copyrights to fuel their “special snowflake” addictions.

Y’know, cuz it’s not just enough that they are a unique snowflake (Or artist, or photographer, or whatever) like everyone else, they’ve gotta be an *especially* unique snowflake with special privileges to their *especially* unique snowflake-y business, anyone else is just a brainless un-creative scum of the earth copycat freetard riding off their *especially* unique uniquenss

Zot-Sindi says:

Re: Re:

Unless you get their permission to ride off their *especially* unique uniqueness

then it’s OK, your intellect suddenly increases by leaps and bounds, creativity and originality shoots forth from the sky like a rainbow down on your head, holy flowers pop outta the ground your feet and you suddenly rise to the level of “chosen of the special snowflake”

and they say that these people are “cool” when you get their permission, hehehe… Well, even bitter old misanthropic hermits like me can be pretty cool too, if you jump through the hoops i want you too, it’s not rocket science

jimbo says:

before there is any change at all with the copyright laws, two things have to happen.
1) one of the morons that keep voting new stuff into law or keeps extending the present laws needs to experience what it is like to be accused of infringement, whether guilty or not
2) the story needs to be leaked, not kept under wraps of any kind, so the public have the opportunity of saying ‘told you so. now you know what it’s like. now you know how we feel. hope life as you know it is taken away. all for the sake of a photo or music track etc. serve your rights and up your arse!! no sympathy from us!’

Nicedoggy says:

Quote:

Is There A Difference Between Inspiration And Copying?

Source: http://www.techdirt.com/articles/20110718/02490115124/is-there-difference-between-inspiration-copying.shtml

I guess that depends on the judge you are in front of.
That matter is so subjective that there is no wrong answer.
With the understanding we have today is impossible to make out a distinct line between inspiration and copy when there is no direct copy involved and to make things worst there is the “derivative” thing, so you can’t be inspired by anything, your only defense is to say it is original.

Those laws lead to absurd situations, because they are absurd rules that were stitched together along the way and not thought through, is like trying to build a straight fence at night, you could try but in the morning it won’t look so straight.

The law is a jack-hammer is not a surgical instrument even though some claim otherwise, so it should only be used to regulate things that are really, really necessary or else we go back to medieval times where there was such laws government how you should kill others in duels, where and when you could fornicate and so on. We laugh at those laws today and people probably laughed at them too at the time, the same will happen to IP laws, they are so incongruent, so unrealistic that nobody in their right minds would take them seriously and trying to force people to abide by those set of rules can only result in one outcome, revolution.

People will loose respect for the law and that is bad, because we need some laws.

NotMyRealName (profile) says:

I admit I don’t know how these cases are run (is there even a jury in something like this?) But I would love serve my jury duty on a case like this. Verdict: not guilty – also the plaintiff has to pay the defense’s lawyer fees and a % of defendant’s last income tax gross based on how long the trial lasted as lost wages, and a punitive fee of half of what they were “seeking,” + court costs which should be rather absurd seeing as how I got hit for $60 for about 30 seconds for my last speeding ticket. The punitive fee could be waived by releasing all the plaintiffs photos in question to the public domain.
The above seems absolutely fair to me.

DandonTRJ (profile) says:

Re: Re:

It -can- go to a jury, but judges often deal with copyright infringement cases on motions to dismiss or through summary judgment to save everyone time, and if the verdict is particularly obvious, attorney fees and costs can be awarded under Section 505 of the Copyright Act. This seems like an excellent case to make such an award if the prerequisites for it are met.

Jinkles (profile) says:

Is There A Difference

Everyone should start rummaging thu their old photos and anyone who has photos older than Gordons with similar poses start suing his ass off. According to him you should stand a good chance of getting $30,000, maybe.
The whole problem is some judge may have just got out of the wrong side of the bed, or his wife gave him hell last night for leaving his cigar ashes on the carpet and he is hell bent on terror to rips somebody apart the next day in court. To really piss everyone off because he is so mad…he sides with Gordon.
That’s really all Gordon is hoping for, to get a judge with an axe to grind and maybe side with him. Sounds crazy, but judges are human and some of them are crazy.

The Devil's Coachman (profile) says:

Speaking of intellectual property........

I do not see any evidence of intellect in her largely mawkish, maudlin, and meaningless “property”. A one-eyed Rhesus monkey with macular degeneration and Parkinsonism could have produced similar, if not superior results using a pinhole camera. People who would pay good money for such devoid of artistic value crap such as hers should have a guardian appointed by the courts.

Anonymous Coward says:

Except for a few snippets here and there in the comments, it is nice to read comments that for the most part focus, not on copyright law, but on an individual who apparently has a strong dislike for another individual that dates back over the course of many years.

The law is not “broken”, though I am not sure I can say the same for the animosity between the two persons.

Anonymous Coward says:

Re: Re:

I’m not so sure…I suppose you could say the law itself is not broken, but the system by which this woman can abuse it is not efficient enough to keep her from filing frivilous suits in the first place.

As with patent cases, and even more literally, I’m sure there’s plenty of “prior art” that would blow this suit out of the water at first glance. She’s trying to skirt it, but her pictures aren’t anything we haven’t seen before in other people’s work.

She’s full of shit, but has an indulgent lawyer I guess.

collier (profile) says:

So lame

I am a photographer, relatively widely published, and frankly, the woman who brought this suite is really “guilty” of two things here. #1 she does not appear to be a particularly skilled or talented shooter, I am saying this based on my initial impression after looking at the “evidence” above and realizing the “infringing” photos are much better photos than the “original”.

#2, her work is kind of mediocre and I would guess her only chance of making a living from photography is by trying to claim a genuinely good photographer is copying her and suing them.

Her name is definitely one I will remember to mention to EVERY editor I know. The simple reality, is the less talented photographer is trying to shake-down the better photographer, instead of producing better work. After all, creating good images takes time and effort, why do all that work when you can just pick a better artist, and try to claim they are infringing because a limb is poised at an angle similar to that in one of her shots. This is one of the lamest things I have ever seen. I am just appalled!

Anonymous Coward says:

Re: So lame

I’m glad you said this. I’ve got some visual art training under my belt, but I’m no professional, and I also found the “infringer’s” art to be more interesting.

I know it’s subjective in the end, but the subtleties of composition can make all the difference sometimes.

Ha! I love the description on the last pic up there: Three boys fill the frame…All three boys are bending their arms.

That is just precious! She should be penalized for this nonsense.

Josh King (profile) says:

Make them pay

What’s needed is some sort of “anti-SLAPP for copyright” or loser pays system so that people who bring meritless suits like this have to think twice before filing.

If she were at risk for paying the defendant’s legal fees (and perhaps a stiff fine, as with some anti-SLAPP laws), maybe we’d see less crap like this.

Ken (profile) says:

Re: Make them pay

I could not agree more. There have been court decisions that say copyright holders MUST consider fair use before taking any action but they increasingly are ignoring that and taking action no matter what. There needs to be a risk in filing lawsuits.

The burden of proof needs to be on the copyright holder and they should be required to explain why the use of their work does not fall under fair use.

If they cannot meet their burden they should be made to pay ALL attorneys fees plus ALL expenses incurred by the victim as well as punitive damages. Filing a frivolous copyright claim should carry just as high a penalty as copyright infringement itself.

Collier (profile) says:

Re: Re: Make them pay

Such an insightful statement.These kind of lawsuits are simply a shake-down that ultimately, is stifling to everyone including the idiot who tries to bring the suite in the first place.

Earlier in my carrier, I was browsing through a gallery of digital art, photos that several people had compiled, which was what they thought was the best digital art and photography on the web. As I browsed the amazing images laid out before me, I kept thinking to myself, “this is amazing stuff. At some point, I want my work to be good enough so people I don’t know are saying this kind of stuff about my art, and displaying simply because the viewer thinks the art is great.” Two pages later, I cam across an image that I thought was really cool, and looked oddly familiar. I realized it was lifted from my portfolio page on highend3d.com. I was stunned, flattered and simply blown away. As I read the comments, and looked at variations of my original other artists had created, I was almost moved to tears. The work that other artists developed from my original was simply stunning. In many cases, it was hands down better than what I had created.

Sadly, this website disappeared about 5 or 6 mos. later after a number of ass-hats freaked-out over their work being displayed and used with-out permission.

There is an old adage in the art world. “Good artists copy, GREAT artists steal” What this means, is that an artist who is incapable of building on what comes before and making it even better, is in many ways just a technician. It has all been done, what really good artists do, is, do it again, but with their own spin on the idea.

Any artist with the balls to actually try and say they have never been inspired by the work of another artist, or created something after looking at a magnificent image, is just not being honest. They are also missing out on the opportunity to truly develop as a creative person and as an artist. This is the kind of development that will ultimately allow the artist to take their work to the next level and is a powerful catalyst for creative growth.

fogbugzd (profile) says:

Basically, humans have their legs joined at the top. Therefore you could probably describe just about any leg position as “V shaped.” If you want to describe leg position, the term “V shaped” is just about meaningless.

How could you distinguish between leg positions? Well, the angle of the V would be the angle of the legs. In one picture the legs are at an acute angle, and in the other it is obtuse. In fact, you could probably describe the man in one picture as doing the splits. Another way to describe leg position would be the angle at the knees, and knee positions are clearly different.

Of course, the whole thing is meaningless. It looks like the general methodology for “proving” copying is to draw colored lines on each image and then say that the lines are the same, even if they aren’t.

Anonymous Coward says:

Copies???

Someone in a show I was watching, or something I was reading (you’re lucky I can remember even a paraphrase!) said, “So I make a chair. Does that mean I have to pay money to everyone who’s ever made a chair?” The scenes depicted are common enough scenes in advertising and real life (kissing couples) for that matter. Every time someone takes a picture of the bride kissing the groom, she’s in a wedding dress; he’s in a tux, they’re in a church, at a courthouse, they’re gay, straight, black; he’s tall she’s short or she’s tall he’s short – you see where this is going?

Anonymous Coward says:

http://en.wikipedia.org/wiki/Mona_Lisa

-Subject is centered in the frame

-Clouds slowly thin near the top

OMG INFRINGEMENT

WAIT, THERE’S MORE

http://en.wikipedia.org/wiki/Ginevra_de%27_Benci

-Light is mostly bouncing off the girl’s face

OH MAN, HOW DEEP DOES THIS RABBIT HOLE GO?

http://worldsfamousphotos.com/wp-content/uploads/2007/03/745px-ww2_iwo_jima_flag_raising.jpg

-Subjects are centered in frame
-Clouds start thick near the bottom and thin near the top

WE MUST GET TIME LAWYERS TO SUE BACKWARDS IN TIME TO STOP THIS PRE-INFRINGEMENT.

John Nagel says:

Mistakes by Gordon

The “Couple Kissing” was produced by McGinley in 2004 – 2 full years before Gordons…She also cropped her photo… + she does not have the market on females wearing blush in photos!

The photo of the 3 men vs 3 men… McGinley is in the picture and was photographed by a photographer for the New York magazine…Nice research!

I could continue but I am quite bored with Janine Gordon.
I am a photographer and she is giving our industry a bad name in her quest for 15 minutes!

steve davidson (profile) says:

Seriously?

This just confirms my position that there are too many hungry lawyers that’ll take a lawsuit for something to do. I am hopeful that the judge in this will refuse to allow the suit to go further, and will make them pay the defendant’s fees, court costs, and client’s time….but since judge’s are all lawyers, my guess is the judge will find on the side of the lawyers since they are generally the only ones that win.

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