A lack of originality...

Doylem · Jul 15, 2013

Exhibit A is my best-selling pic of Lake Windermere. Exhibit B is a canvas print I saw in the window of an art gallery yesterday. The gallery was closed, but I grabbed this shot of the print, which seems to have taken its inspiration from my pic rather than the lake itself. I've shot thousands of pix of the lake, but this one - with such odd lighting - is very distinctive.

So the 'artist' will be getting a stiff letter, quite soon, on the subject of plagiarism, along with a bill to pay if he wants to avoid the matter going to court. What a cheek!

GoCubsGo · Jul 15, 2013

In this case, I prefer the photo. This happens but so egregiously and public, I am unsure. I wonder if the gallery can tell you what he/she has made from the print or is it a single run? Did you happen to find a website for the artist? If so, I'm sure it would be useful to check their other work. Maybe even google image search their other paintings.

It is a shame that they did this but your photography is pretty amazing; still, no excuse of course.

throttlemeister · Jul 15, 2013

Better check the date on the artwork first. I bet the vantage point is rather common, and those skies aren't exactly rare there either.

Like your photo though. I would probably add a little more punch - but that is my personal style/taste.

thekingofnerds · Jul 15, 2013

Wow!

At first I'm thinking, "Oh, its just some guy complaining cause they are a little bit similar and they probably used a similar location, angle, etc"

Then I saw it. And yeah, it's got a certain likeness.

The boat is in the same spot, shadows and lighting are nearly identical... that painting looks like they took your beautiful photo and ran a few photoshop filters on it.

If I were you, in addition to writing up a letter and such, I would take a quick look around Flickr and the like to make sure no one uploaded a copy of your photo as some royalty free or public domain image.

It's unlikely - but the painter could literally have no clue about the photo other than what someone uploaded.

This is of course assuming they did copy it and its not just a complete coincidence.

throttlemeister · Jul 15, 2013

See here results for image search

Doylem · Jul 15, 2013

throttlemeister said:
See here results for image search

Yes, the pic has found some new homes. I'm not thrilled about that... but I decided, ages ago, not to fret about bloggers, etc, who use my pix because a) I'm unlikely to get any £££ recompense and b) life's too short...

It's when people use my pix to make money, without payment, that's when I get upset. An artist may not know where a picture has come from, or who pressed the shutter. But, hey, he knows one thing for sure: it wasn't him! And that's all it should take for a so-called artist to resist the urge to plagiarise...

fa8362 · Jul 15, 2013

Good luck. You'll need it trying to prove copyright infringement with a landscape that isn't unique.

MacCruiskeen · Jul 15, 2013

fa8362 said:
Good luck. You'll need it trying to prove copyright infringement with a landscape that isn't unique.

The precise vantage point, the light, shadows, and cloud formations, are close enough that the suspicion of copying is reasonable. The image has "escaped into the wild," so it's entirely possible the artist saw it. So either the artist could claim he did it all himself and the resemblance is coincidence, or that he used some other source (which he should be able to produce). But it is true that pressing the case may be more costly than it is worth, except to make the point. Sadly, this sort of thing has become all too common these days.

fa8362 · Jul 15, 2013

MacCruiskeen said:
The precise vantage point, the light, shadows, and cloud formations, are close enough that the suspicion of copying is reasonable. The image has "escaped into the wild," so it's entirely possible the artist saw it. So either the artist could claim he did it all himself and the resemblance is coincidence, or that he used some other source (which he should be able to produce). But it is true that pressing the case may be more costly than it is worth, except to make the point. Sadly, this sort of thing has become all too common these days.

I see the resemblance, but I would think more than that is necessary. I've shot similar landscapes (minus the lake) many times over the course of years and many of the photos look similar, despite being on different days and/or in different years.

ChrisA · Jul 15, 2013

Many of the details are different. The painting was not make automatically from your work, there was some human intervention. If they had used something like Corel "painter pro" to simply apply a filter then you might complain. The painter changed the ridge line and even some details of the shape of some mountains. Other details are different too.

But this involved some hand work. It is an obvious composition and I bet you took the shot from an easy to get to vantage point. You didn't hike 4 miles off trail cross country to get this shot. If the location is near a road then it is likely many people have driven by this spot. There could be hundreds of images like this taken over the years. The lighting would be the same any time you have those clouds on about the same date and time.

The problem is your "art" is just a natural scene that you recorded. You did not make the lake or place the sun in the sky. You simly captured a natural scene. Anyone else is free to also capture the same scene. This would be a different case had you built a set bought props and hired a model. But nature shots are different, anyone is free to see your work and say "I can do that" and go to the same parking lot and wait for the light to be the same. They would then own the copyright to an image that looks just like yours.

What they can NOT do is put your photo on a copy stand, shoot it and sell copies, but they CAN try to find where you put your tripod and re-shoot a natural scene.

You make a copyright claim you would have to prove the artist used your photo to make a derived work and did not work from some other photo or the scene itself.

You'd be surprised how many images look just exactly like Ansel Adams shot of Half Dome in Yosemite. Some of the foreground trees are still standing so it is easy to find the EXACT spot Adams used (hint he hated to cary his gear far off the pavement away from his car) You can find the spot and wait for the sun angle he used. In one of his books he details the processing he used, even how the edges of the images are "burned in". I do all this and I don't have a copyright problem. I have one of thousands of imitations. On any given day you can see people standing on that spot taking photos, it is an obvious shot right from the parking lot.

Doylem · Jul 15, 2013

ChrisA said:
Many of the details are different. The painting was not make automatically from your work, there was some human intervention. If they had used something like Corel "painter pro" to simply apply a filter then you might complain. The painter changed the ridge line and even some details of the shape of some mountains. Other details are different too.

But this involved some hand work. It is an obvious composition and I bet you took the shot from an easy to get to vantage point. You didn't hike 4 miles off trail cross country to get this shot. If the location is near a road then it is likely many people have driven by this spot. There could be hundreds of images like this taken over the years. The lighting would be the same any time you have those clouds on about the same date and time.

The problem is your "art" is just a natural scene that you recorded. You did not make the lake or place the sun in the sky. You simly captured a natural scene. Anyone else is free to also capture the same scene. This would be a different case had you built a set bought props and hired a model. But nature shots are different, anyone is free to see your work and say "I can do that" and go to the same parking lot and wait for the light to be the same. They would then own the copyright to an image that looks just like yours.

What they can NOT do is put your photo on a copy stand, shoot it and sell copies, but they CAN try to find where you put your tripod and re-shoot a natural scene.

You make a copyright claim you would have to prove the artist used your photo to make a derived work and did not work from some other photo or the scene itself.

You'd be surprised how many images look just exactly like Ansel Adams shot of Half Dome in Yosemite. Some of the foreground trees are still standing so it is easy to find the EXACT spot Adams used (hint he hated to cary his gear far off the pavement away from his car) You can find the spot and wait for the sun angle he used. In one of his books he details the processing he used, even how the edges of the images are "burned in". I do all this and I don't have a copyright problem. I have one of thousands of imitations. On any given day you can see people standing on that spot taking photos, it is an obvious shot right from the parking lot.

Well, I don't call my pictures art... or even "art". Anyone is welcome to stand where I stood... and even put the tripod legs in the same holes in the ground. But this artist didn't do that. He obviously saw my photograph somewhere, and copied it... for profit.

"The lighting would be the same any time you have those clouds on about the same date and time". Not true. I've lived here for six or seven years, and I haven't seen the lake in light like that before or since. I recognised 'my' scene immediately, even though it has been 'converted' into something more painterly. The artist could - should - have created something of his own, instead of appropriating my image... without payment or acknowledgement.

In UK I own the copyright to my photographs simply by pressing the shutter; no need to register them in any way.

fa8362 · Jul 15, 2013

Doylem said:
Well, I don't call my pictures art... or even "art". Anyone is welcome to stand where I stood... and even put the tripod legs in the same holes in the ground. But this artist didn't do that. He obviously saw my photograph somewhere, and copied it... for profit.

"The lighting would be the same any time you have those clouds on about the same date and time". Not true. I've lived here for six or seven years, and I haven't seen the lake in light like that before or since. I recognised 'my' scene immediately, even though it has been 'converted' into something more painterly. The artist could - should - have created something of his own, instead of appropriating my image... without payment or acknowledgement.

In UK I own the copyright to my photographs simply by pressing the shutter; no need to register them in any way.

Don't know about the UK, but in the US, you'd have little chance of winning your case.

GoCubsGo · Jul 15, 2013

fa8362 said:
Don't know about the UK, but in the US, you'd have little chance of winning your case.

It's always good to see a lawyer chime in.

fa8362 · Jul 15, 2013

GoCubsGo said:
It's always good to see a lawyer chime in.

It doesn't take a lawyer to see that he has little chance of succeeding.

Doylem · Jul 15, 2013

fa8362 said:
Don't know about the UK

So it seems...

rodpascoe · Jul 15, 2013

Unlikely

In my professional opinion you would be unlikely to be successful in a claim against this person.

I'm not saying that they didn't do it or that if they did then it's not a shame (and unfair), just that I would expect no recourse from it as it would be so difficult to prove and cost you far too much in legal fees.

Doylem · Jul 15, 2013

rodpascoe said:
In my professional opinion you would be unlikely to be successful in a claim against this person.

I'm not saying that they didn't do it or that if they did then it's not a shame (and unfair), just that I would expect no recourse from it as it would be so difficult to prove and cost you far too much in legal fees.

Well, I will be getting in touch with him, and presenting a claim for "passing off" my work as his. It may have been changed, but it's a distinctive shot; I am 100% sure that it's plagiarism... and not merely some coincidence. He will have the opportunity to pay my bill, and withdraw his prints from sale... or pay me a royalty per sale. If neither option appeals, I'll take him to court...

Apple fanboy · Jul 15, 2013

Doylem said:
In UK I own the copyright to my photographs simply by pressing the shutter; no need to register them in any way.

Is that how it works over here? I never really thought about it before. I always assumed you had to copyright your images.

I think there is a very good chance that the artist copied your photo as the similarity is high. However proving it will be much harder. Good luck and let us know how you get on.

rodpascoe · Jul 15, 2013

Doylem said:
Well, I will be getting in touch with him, and presenting a claim for "passing off" my work as his. It may have been changed, but it's a distinctive shot; I am 100% sure that it's plagiarism... and not merely some coincidence. He will have the opportunity to pay my bill, and withdraw his prints from sale... or pay me a royalty per sale. If neither option appeals, I'll take him to court...

I wish you all the best and hope you are successful but I just doubt that it is likely my friend.

I have had photographers ask me about similar cases many times over the years.

kevinfulton.ca · Jul 15, 2013

Doylem said:
Well, I don't call my pictures art... or even "art". Anyone is welcome to stand where I stood... and even put the tripod legs in the same holes in the ground. But this artist didn't do that. He obviously saw my photograph somewhere, and copied it... for profit.

"The lighting would be the same any time you have those clouds on about the same date and time". Not true. I've lived here for six or seven years, and I haven't seen the lake in light like that before or since. I recognised 'my' scene immediately, even though it has been 'converted' into something more painterly. The artist could - should - have created something of his own, instead of appropriating my image... without payment or acknowledgement.

In UK I own the copyright to my photographs simply by pressing the shutter; no need to register them in any way.

I get where you're coming from and I would probably be equally as frustrated. Then I'd need to sit down and think it through and have this conversation with myself:

Q: Is there a chance that he saw my photo and worked from it for this piece of art?

A: Yes

Q: Is the resemblance close enough thought I should contact the artist with a nasty email?

A: Yes

Q: If the artist insists that it was from a picture that they took can I prove them wrong with available evidence outside of the visual similarities (which, like it or not, is a matter of opinion) without going to the courts to acquire it?

A: Probably not

Q: With the legal fees that would be involved do I have a strong enough case to win?

A: I FEEL that I could, but others may disagree.

Q: Is there a better way to approach this since the artist MIGHT ACTUALLY HAVE HIS OWN PHOTO THAT HE TOOK?

A: Yes. Perhaps I will contact the artist in a "mater of fact" type way and ask as gently as possible since, if the roles were reversed, I would be EXTREMELY insulted if somebody made such an accusation about my work.

I'm not saying either person is right or wrong. In fact I feel that you have good reason to at least inquire, but I would highly recommend to tread carefully. It's a very strong accusation. You never know. Maybe they did copy it, will feel bad about not giving credit, and will cut you in or include you in the credits some how.

All the best.

Doylem · Jul 15, 2013

kevinfulton.ca said:
I get where you're coming from and I would probably be equally as frustrated. Then I'd need to sit down and think it through and have this conversation with myself:

Of course. I'll give the guy every opportunity to make amends. We can all make mistakes.

But I work, in a freelance capacity, as both a writer and a photographer... and the rules of the game are clear and unambiguous in both contexts: your work should be original, not copied from another source.

The rules of copyright may seem more relaxed in the internet age, when we can 'cut & paste' something we see online into our own essay, or appropriate some image we find on the web simply because Google found it. But the rules still stand, and copyright exists for a reason.

A picture isn't 'free' just because it's displayed on the web... and choosing to use an image without payment or attribution can prove to be a costly mistake. Getty, for example, chase improper use of their images. The fees demanded don't represent the original fee for licensing an image; they may be ten times that amount...

Some stock photographers make more $$$ from chasing up unlicensed uses than they do by actually licensing their images...

ApfelKuchen · Jul 15, 2013

There's a fairly long list of coincidences necessary for someone to accidentally or intentionally come up with this same image - position of sun and clouds, wind/water conditions, season, the sailboats So the circumstantial evidence is incredibly strong, and the number of discrete elements that differ are few. (The sailboat seems a bit small in the photo, so enlarging it makes sense - moving the sailboat closer to the foreground might have made even more sense, as the diffuse reflections in the original that add interest to the foreground are not present in the painting. If I was a conspiracy theorist, I could imagine that the artist was instructed to duplicate the photo, and therefore did not stray overly far from the composition.).

Does it matter whether a road or trail is nearby? The painter could argue that he/she hiked the distance anyway. Then, try to disprove it. "Yeah, I was inspired by your photo to travel to Lake Windermere to try to duplicate the circumstances." "Show me the travel receipts!" "I used a 3D mapping and rendering program to duplicate the conditions." And so on. A tough, probably expensive process, that may yield neither justice nor a finding of damages sufficient to meet the expense.

I'm tempted to suggest forging some sort of alliance that works to your mutual benefits, rather than an adversarial relationship, but I tend to be kind of utopian in that regard.

Yes, it's possible to take photos of Half Dome that are incredibly similar to some of Adams' - who, presented with the opportunity, hasn't tried? There are many, many other Adams images that would be near-impossible to duplicate - moon in a particular phase and location coupled with the position of the sun necessary to cast the requisite shadows, proper cloud conditions, snowfall it could take many years of patience and planning, plus a huge amount of luck, to ever come close. "Winter Sunrise, Sierra Nevada from Lone Pine" is a fine example.

That's why most of us focus on applying Adams' aesthetic and techniques, rather than slavishly duplicating particular results. That's the difference between "in the style of," and outright copying.

hollersoft · Jul 15, 2013

Do you have the artist's permission to publish a reproduction of the print in Exhibit B publicly on the Internet?

Half joking. Once you get lawyers involved there may be all kinds of unintended consequences.

kevinfulton.ca · Jul 15, 2013

Doylem said:
Of course. I'll give the guy every opportunity to make amends. We can all make mistakes.

But I work, in a freelance capacity, as both a writer and a photographer... and the rules of the game are clear and unambiguous in both contexts: your work should be original, not copied from another source.

The rules of copyright may seem more relaxed in the internet age, when we can 'cut & paste' something we see online into our own essay, or appropriate some image we find on the web simply because Google found it. But the rules still stand, and copyright exists for a reason.

A picture isn't 'free' just because it's displayed on the web... and choosing to use an image without payment or attribution can prove to be a costly mistake. Getty, for example, chase improper use of their images. The fees demanded don't represent the original fee for licensing an image; they may be ten times that amount...

Some stock photographers make more $$$ from chasing up unlicensed uses than they do by actually licensing their images...

I absolutely agree with you. I never disagreed. Just advising to go in without torches and pitchforks at first (I try and avoid heated confrontations as much as possible) which I'm sure you will. Give them the benefit of the doubt at first and see what happens because they surprise you. However, after you've done that and they decide to be jerks about it, then all bets are off as far as I'm concerned. Good luck to you. I hope it all works out.

One last thing. Be sure to keep a journal or put a file together. Print out all your emails, phone call notes, letters, ANY form of contact that you have with this person. If you decide to go the legal route then this will help you case. Hopefully it doesn't have to go that far.

ijohn.8.80 · Jul 15, 2013

Doylem said:
I've shot thousands of pix of the lake, but this one - with such odd lighting - is very distinctive.

This is quite obviously a direct rip-off of your picture Doylem. Yes, some things have been changed in the artists hope of being different enough to avoid lawsuit, but, I don't know that this has been accomplished well enough to be substantially different from your original.

Copyright of art is a very complicated topic and I know nothing of the laws governing this matter in the UK.

I hope you can settle a gentlemen's agreement out of the court system.

A lack of originality...

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