Stealing idea...Cool or not?

[a. a.]

I did a photo session for a poker publication last year (around Dec.

2004) with Jennifer Harman (twice world poker series champion) which

she appeared playing poker with her own dog. Me and her husband came

up with the original idea at the middle of session and there was no

direction given by the client to me in that regard whatsoever.

 

I gave the photos for one time use to the writer of the article who

lives in NYC. Within two months after that American Express created

a very similar advertisement image using Ellen and her dog playing

poker! Natural light, at home, she is sitting on the left and dog on

the right, playing poker...one paw on the table. It's just too

similar to be an accident. I wanted the image be wider to Jennifer's

home as background (because of the article) and their shot is more

concentrated on the comical element.

 

I did some research and even though I am not sure I'm guessing that

the writer had some connections with the agency who has done the ad.

 

I know that ideas are out there for grab. But do you think this is

cool? This is just an excuse to get some feedback in this regard in

general since this has happened to me multiple times by various

major companies and even famous photographers and national

publications. Some of them even have got the images from me, didn't

use them for some months so they don't have to pay me, and later

shot them exactly the same way using an "in house photographer"

producing lower quality images.

 

Thank you.

 

Link to my image:

 

http://www.photo.net/photo/3088062

 

Link to Ad:

 

http://www.commercialcloset.org/cgi-bin/iowa/portrayals.html?

record=2126

[a. a.]

http://www.commercialcloset.org/cgi-bin/iowa/portrayals.html?record=2126

[richard_cochran]

<a href="http://www.commercialcloset.org/cgi-bin/iowa/portrayals.html?record=2126">Here is a corrected link to the Ad.</a>

<p>

As to whether it's cool or not, I don't know, that's a matter of

individual ethics and judgement. But artists steal concepts

and ideas from each other all the time. The idea of a dog

playing poker isn't exactly original. When I Google

"dogs playing poker", I get about 454,000 hits!

<p>

A more interesting

question might be whether you have any recourse, and my guess is the

answer to that one is "no".

[stephen hazelton]

If a photo is obviously based on another work, it should count as a derivative work, and you would have grounds. For example, if you take a copyrighted photograph and make a painting of it, you are violating the copyright.

 

How different or how much the same they can be, I have no clue- it's lawyer time if you think it's worth persuing. You can't copyright the person, and problably just the idea itself being copied wouldn't be enough.

[art_haykin]

Good artists borrow, great artists steal!

[qtluong]

This is definitively not "cool", but it appears legal. Search on google "Penny Gentieu v Getty", and you'll see what I mean.

<a href = "http://www.terragalleria.com/">Terra Galleria Photography</a>

[john_h.1]

"Some of them even have got the images from me, didn't use them for some months so they don't have to pay me, and later shot them exactly the same way using an "in house photographer" producing lower quality images."

 

A photographer shot a scene for the album cover of a rock band. It featured a female silhouette with the flare of a setting sun appearing at, well, a strategic area of the anatomy. The price of the photographer was rejected. A new phtographer was hired to make a shot that looked somewhat different but was the same concept as described.

 

A lawsuit ensued and the defendants lost. A huge judgment was awarded for copyright infringement. If the post above were true, this wouldn't have happened. You should seriously consider registering your images with the copyright office. Rely on the advice of an attorney for the legal issues.

[john_h.1]

The Gentieu v Getty was not appealed. Apparently out of fear of the consequences of losing the appeal. My gut feeling is that the decision to not let the matter go to a jury would have been overturned. Indeed, the factual issues were the sort that were ideal for a factual jury decision and not a legal decison.

[rjeffrey]

If there was a chance you could sue the photographer, couldn't the estate of the classic "dogs playing cards" paintings in turn...sue you?

If I got rich off of a photo of a bee on a flower, or a lonely boat on a lake, I wouldn't expect any of the millions of people who've taken similar shots to sue me. The same applies - your idea is just slightly newer. Forget about it.

[john_h.1]

Rish, the examples you describe are not the sort that will generally amount to copyright infringement. One for being too disimilar, the others for being to common as to be able to be protected works. Indeed, if your examples were the standard for other protecated works, the copyright system would fall apart completely.

[rick_hensil]

PS. Your photo is much better!

[bill c.]

M.H.-- If the subject was Jennifer Harman, then you might have a case. However, since it's Ellen DeGeneres, there's a good chance that they could have come up with the idea all on their own. At any rate, it's not the idea per se that is copyrighted, it's the expression of the idea that is copyrighted.

 

BUT, here's how I spun a similar situation into a positive thing. There was a black 1930's era biplane at a local airport, and with the permission of the owner (who I knew) I did a portfolio trade-off shoot (no pay, the models get copies of the pics for use in their portfolios as do I) with some models in front of it. The shots came out great.

 

Sometime later, another photographer used the same airplane in nearly the exact same layout as I did for a major regional fashion ad. The owner of the modeling agency called me up and asked me why I didn't call her for the models for the ad. I explained to her that I wasn't the photographer who shot it.

 

Through connections in the photo biz, I traced down the art director who did the ad, and memorized her name so that if I ever ran into her at a function I would have a story to tell her. Three months later I did, and started out the conversation (very lightheartedly) saying, "You! You caused me a lot of trouble and you didn't even know it!" I laughed when I told her what happened, so she knew that I wasn't trying to blame her for anything. It was more along the lines of, "Don't us great minds think alike!"

 

The offshoot? A foot in the door with her agency that led to several very lucretive jobs.

 

Now all you need to do is get Jennifer Harman to cuss you out for using the same idea with Ellen as you did with her, then track down the art director for the American Express ad. The point is, now you have some social capital. How are you going to use it?

 

Best of luck, and happy shooting.

[mfeetham]

In general I think borrowing or stealing ideas is wrong. Parody and allusion are something different, however. In your particular example you have no case, especially considering you are far from the first person to set up a shot like this.

 

<a href="http://www.smu.edu/anthro/faculty/dMeltzer/Shadow_2004.htm">http://www.smu.edu/anthro/faculty/dMeltzer/Shadow_2004.htm</a>

<br><br>

[john falkenstine]

What we have here is really a case of ethics, or lack thereof. "Borrowing" of ideas or stealing another person's concept (copying it)and then claiming and getting credit for it goes on constantly. I recommend first of all, as a precautionary step, that you record your images on CD sets and register them in batches for copyright. (There's a fee and a procedure) Unfortunately, there's not much you can do about a similar pose, or a pose that appears to be copied, unless there was a deliberate intent to defraud you. In any business where there's competition, ethics will be the first thing out the window.

[john falkenstine]

Here is some more data: Looks like this has happened before and the legal viewpoint is that legally you are out of luck. Court Says Lookalike Photo Doesn't Infringe..

 

"October 06, 2005

By David Walker

 

A New York federal court judge has rejected photographer Bill Diodato's lawsuit alleging that the Kate Spade fashion accessories company illegally copied one of Diodato's images for use in an ad campaign."