Who Owns This Idea?*

- - copyright

Ok, sorry I’m now on a complete jag here, but someone sent me this Cass Bird cover awhile back that has a nice lineage of the exact same idea.

Cass Bird 2011


Josphine Mecksper 2003


Douglas Kirkland 1975


Melvin Sokolsky 1960


There Are 40 Comments On This Article.

  1. Great post following yesterdays. I wonder how much of the concept is the photogs or the P.E. or A.D. given that most appear to be editorial. Would a concern be the contract the photographers sign indemnifying the magazines for copyright violation?

  2. Who owns any idea in the photography world? People take, expand, modify and even replicate an idea to no end. Now that I’ve fanned that fire.

    But to answer your question…… It was Mr. Woodie Caliente the inventor of the mass production of the matchstick. He was photographed for a company portrait back in 1939. NOT.

    Seriously though….. here is another example of the “matchstick portrait”.

  3. Only the 75′ version really looks like a match to me :-)

    IMO (and others will disagree) the 75 and 11 images are the better executed but so what…. I understand your point but in the end nothing is new, so on that basis no one could do anything. I have no idea if any of the later photg ever saw the earlier versions – I have done shots that only after the fact I see have been done before. Does that mean the idea was not really mine and that I should have destroyed the images?

    Even if I had used as inspiration (the fluffy version of what we all do) or stole it outright based on something I saw earlier – we all do that at times in some ways even if we don’t realise it. Is the sunflower image a steal from someone who chopped off their ear??

    That means things like a mag hiring photgB to copy image from photgA but it’s that 100 guilty men must go free to try and avoid condemning an innocent man thing IMO. Grey area but we cannot stop it due to the collateral damage that would cause.

  4. All this buzz about copyright is starting to get annoying. Seems like the topic pops up once every couple of years, and of course the final answer is that there isn’t one. The line is gray and blurry — it’s not even worth debating.

    Maybe we could find the first portrait photographer who setup the traditional ‘fist-under-the-chin-pose’ and he could sue every photographer ever… but actually he’d probably then get sued by Rodin (The Thinker). See what I’m saying here?

    Everything is a remix.

    • True,
      Look at August Sander and then Penn’s portraits. Or Weegee and Diane Arbus.

    • Right!

      and wrong…

      They are each individually copyrightable, each artist has the rights to the image they created

      And this is why Jah Jah’s suit is so frustrating to me, her examples of “person centered in frame” etc. are NOT copyrightable, yet another person has to pay to defend against this kind of suit.

        • That’s why I said “right” to your answer.

          You brought up copyright in your answer and I was referencing that. A lot of readers of this forum are very confused about their rights as image makers. I am not a lawyer but I have an IP lawyer that I use, I make a living from creating and licensing my images and I am trying to add to the knowledge base.

  5. An awesome and famous-ish photographer I use to work for always said, conceal your sources, everything’s already been done.

    • DC-Photographer

      While there may be billions of images of buildings, people, landscapes, etc — even the same exact location/view, the context, time, and interpretation is never the same. The Zen masters say, “You can never step into the same river twice.”

      The legal issues are indeed real and complex, but I philisophically and artistically disagee with the idea that “everything’s been done.” If so, why do any art of any kind? It sounds like someone is rationalizing their own borrowing/copying other people’s ideas and vision.

      • Do the Zen masters say that? If so, they are stealing Heraclitus’ idea. Someone sue them for copyright!

  6. A few years ago I attended the ‘War Against Photographers II’ seminar sponsored by Editorial Photographers. It was there that I learned that, ‘you can’t copyright an idea, only your interpretation of that idea.’

    There was a photographer, and I can’t remember his name, who gave an example of a copyright violation case that he’d won. He’d shot an image of a man in a chair, silhouetted in front of a wall of tv or computer monitors. He found that some other publication hired another photographer to copy his image almost exactly.

    I would have to defer these examples to someone who knows a lot more about the qualifying factors of infringement, but I’d say that the first 2 images are very identical in their idea and interpretation of that idea. The others, I’m not so sure.

    my 2 cents…

  7. Alicia has it. You can not copyright nor (I maybe wrong about this) patent an idea. You can however stake a claim to ownership of how the idea is expressed.

    Even discounting the differences in lighting, overall execution & subject gender
    Douglas Kirkland’s portrait of Jack Nicholson uses the match as a prop to help express a radically different idea from the other three. It helped to establish Jack Nicholson’s wild man “Is he crazy like a fox?” persona at the time he starred as R.P. McMurphy in Milos Foreman’s film version of Ken kesey’s “One Flew Over The Cuckoo’s Nest”.
    I’d like to know the context in which Mr. Sokolsky’s 1960 photo-illustration appeared. Did it illustrate a piece of fiction or non-fiction ? Was it used for an ad? Was it a stand alone piece?

    Sokolsky and Kirkland are still around and active. Why don’t you query them as to where they got their idea from?

    In Ms. Bird and Ms. Mecksper’s portraits the match seems like a prop that used to no real point.

    • “You can however stake a claim to ownership of how the idea is expressed. ”

      No, not really. If you could then only one person could make centered, black & white portraits, there could only be one person writing love songs, or rock songs. Copyright protects the individual image you create from being taken and used by someone else, it is VERY unusual when it prevents someone from creating a very similar image.

      • ‘Copyright protects the individual image you create from being taken and used by someone else, it is VERY unusual when it prevents someone from creating a very similar image.”
        Owning your copyright doesn’t prevent anyone from copying one of your images. It gives you a legal tool to help you obtain compensation if someone else uses your work in an unauthorized manner. That can include the other party party basing a large part of their work on your work. look up Art Rogers vs. Jeff Koons for example — and in the music world there are many successful examples of an originator pursuing and obtaining compensation. George Harrison, ZZ Top and Led Zeppelin have all had to compensate the writers of various songs.

        The real issue is the balance between finding inspiration in someone else’s creation as a leaping off point for what you will bring to the party and just blatant copying.

        There are some aspects of photography that different courts have ruled to be so generic as not to be copyrightable. In commercial photography the one that comes most easily to mind is photographing someone or something against a white background. You can’t copyright that, but if I find a person who looks like the person you photographed centered against a white background and then dress, style, prop and direct them to pose in a very similar way to look like your photograph, then you might have a good case against me for infringement. One of the things you might be asked to prove is that I had actually seen your photo before making mine.

  8. /Users/jimwright/Desktop/Picture 17.png

    Call me guilty; Gerard Butler for Men’s Journal. However,we chose not to put them flame in.

  9. Given all of the examples shown here, another question to me, is, ‘when does an idea become a cliche’?’

  10. I used to work for Cass as an assistant. I have a tremendous amount of respect for her for being incredibly hardworking highly-focused and a true visionary. She’s also at the top of her game right now and being recognized for the talent that she is. With that said, I’ve been super curious about the origin of another image of hers for the past couple of years. The image in question is nearly identical to a scene from the El Guincho “Bombay” video. Not sure which came first…

    Cass Bird’s “FDR”:

    El Guincho’s “Bombay” Screen Grab:

    This discussion over intellectual property reminds me of alot of the stories that have come from the comedy world. I.e Carlos Mencia and Bill Cosby……Dane Cook and Louis C.K. ….Robyn Williams and whoever.

  11. We all would be much better of if we went out and did some photowork instead of sitting around here moaning, complaining and contemplating as to how many angels would fit on the head of a pin!

  12. Mike Moss

    Classical art had an “aura” because each object was a unique creation and could not easily be replicated. Valuable art objects often required extensive maintenance and also needed to be physically guarded against the possibility of criminal theft and vandalism.

    Then, the mechanical age made it possible to produce limitless copies and reproductions of art objects. Mass production shifted the “aura” from the objects themselves and onto the creators of the objects. The ideas behind the creations became more valuable than the actual creations. Artists could protect their ideas, and therefore their auras, by using Copyright to limit reproduction.

    Now, we in the quantum era and the digital age. The moment that an idea manifests itself in the form of an object of art within the digital realm then it’s reproduction can NEVER be limited. Copyright was effective at protecting artists during the mechanical era because it provided the legal means to control the reproduction of objects created by their ideas. But reproduction can no longer be effectively controlled in the quantum era and this means that artists will no longer be able protect or lay claim to their own ideas.

    The quantum era is destroying the aura of artists just like the mechanical age destroyed the aura of the art object. Copyright laws are a relic of the mechanical age and will prove to be totally ineffective in the quantum era. Artists working in the digital realm need to understand that they can no longer protect or lay claim to ideas because there is no possibility of limiting the reproduction of work created by the ideas.

    Bottom line: The era of the artist as “rock star” is over….Artists will try to preserve their previous status through the use of copyright, but it won’t work.

  13. A couple thoughts:

    1. We’ve pretty much established you can’t copyright concepts. While each of these examples employ the same concept, they’re all sufficiently different to be called derivative.

    2. With so many images now on the Internet, the potential that someone will catch you ripping off concepts is pretty high. If you clip images, stick them in a file and recycle them a couple years later, you probably want to try to bring a unique angle to the concept.

    3. What really concerns me is the osmosis factor. The volume of other people’s images we see in a given week is alarmingly high. The potential certainly exists to subliminally embrace concepts/ideas then present them as original work without even realizing the idea is virtually identical to something you saw on a Web site somewhere.

  14. Bill Jobs

    “The quantum era is destroying the aura of artists just like the mechanical age destroyed the aura of the art object.”

    You don’t spend much time in galleries and museums or talking with collectors and curators do you? Your argument is an old one and an invalid one. Just because there the means to infinitely reproduce an object doesn’t mean that it happens or that all copies are identical.

    Many if not most of the people who make the argument you make against the value of ownership of intellectual property are heavily involved with businesses whose major asset and product is intellectual property, of which copyright is a form.

    Finally, at its core the argument against copyright is an argument against the ownership of property by private individuals.

  15. “Nothing is original. Steal from anywhere that resonates with inspiration or fuels your imagination. Devour old films, new films, music, books, paintings, photographs, poems, dreams, random conversations, architecture, bridges, street signs, trees, clouds, bodies of water, light and shadows. Select only things to steal from that speak directly to your soul. If you do this, your work (and theft) will be authentic. Authenticity is invaluable; originality is non-existent. And don’t bother concealing your thievery – celebrate it if you feel like it. In any case, always remember what Jean-Luc Godard said: “It’s not where you take things from – it’s where you take them to.”
    — Jim Jarmusch

    .. i like cass’s pic best.

  16. Also, there’s always the possibility that each of these artists never actually saw any of their predecessors’ images before making their own version of it… Right…? That they weren’t necessarily aware of the lineage of ‘the[ir] idea’…? I think it’s entirely possible, as there are millions upon millions of images made by thousands upon thousands of photographers; it would be impossible for anyone to know them all.

  17. I’m calling dibs on shooting through objects, shooting at 1.4, people by the window, and out of focus subject in the foreground.

  18. A photographer

    My images have been copied or otherwise called “have inspire others” many times.
    Conclusion my images are selling, when people and clients see the copies the refer to my images so my advise ……….don’t imitate….Innovate. For those saying everything is done ….No.. not everything is done ……put your creativity to work if you can, not everybody will and can be successfully professional photographer, I don’t refer to all those micro-stock so called photographers that sale the images for a dollar and ripping every image available in the net.
    Congrats for your blog …by the way.

  19. The difference between stealing and being inspired and is the difference between a lightning bug and lightning (to paraphrase and credit Mark Twain).
    I think a lot of people are missing the point. A idea can not be protected. The court case of Penny Gentieu v Getty, which she lost trying to sue for photos of babies against white plexi.
    But the issue becomes if there are “protectable elements” in that expression. There are tons of cases where copying an idea so exactly that a “common man” (and that’s one of the legal tests) can see that one is derived from the other. Exactly copying another’s idea is plainly, illegal. Cass Bird’s “FDR” because of the red and denim shorts and so many other elements, would be in my opinion, a case she would lose in court.

    One of the rights under copyright law is the right to derivatives of your work. Remember, our copyright rights are baked right into Article 1 of the US Constitution. People online can spout opinions all day and claim how things have changed, but they haven’t. The law of the land, unless you can change the US Constitution, is for copyright protection.

    Read a great article by art critic Jerry Saltz in New York magazine entitled “Generation Blank” where he laments how the new young artists, who he lables being a “Lost Generation” , who appropriate others work and ideas are “stuck in a cul-de-sac of aesthetic regress, where everyone is deconstructing the same elements”.
    I agree.

    There are always original ideas. They are just much harder to produce. And why work harder if it’s easier to rip off some one else’s idea.