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Comments (73) Posted 01.06.05 | PERMALINK | PRINT

William Drenttel

Bird in Hand: When Does A Copy Become Plagiarism?



Left: STEP Inside Design, Cover, Jan.-Feb. 2005. Right: Photograph by Victor Schrager.

Every once and a while, the plagiarism of one artist's work by another crosses the line, or so I thought. I wrote a different piece for Design Observer a few weeks ago on this subject, but my lawyer hesitantly suggested that the piece could lead to libel litigation. Since my lawyer regularly defends the rights of photographers and artists, I took his caution seriously. I will not accuse anyone of plagiarism in this post.

Our conversation, however, raised all kinds of questions in my mind about what are the lines between plagiarism, copying, appropriation, and homage. He asked a very interesting question: if the original work of a photographer being copied is not protectable under copyright law, then how can I accuse an offending party of plagiarism?

The January-February 2005 cover of STEP Inside Design features a stock photograph by Marcie Jan Bronstein that seemed familiar to me: the editors of STEP should be aware that her cover photograph is similar to another photographer's work — work that has been widely exhibited and published. The image on the left is this month's cover of STEP Inside Design. The photograph on the right hangs in my living room, and has hung there since 1998.

The photographs are not exactly the same. The tonality is different, as is the deep-of-field. The hand and bird are more predominate in the Bronstein photograph. Nonetheless, there seems to be a deep similarity. What I cannot answer is why Marcie Jan Bronstein took this particular photograph, or others in this vein, and entered them into a commercial stock photography archive. Her source of inspiration is unknown to me.

We all know that ideas come from many sources: they recur, regenerate, take new forms, and mutate into alternative forms. In the world of design and photography, there seems to be an implicit understanding that any original work can and will evolve into the work of others, eventually working its way into our broader visual culture. It would be easy to imagine an original work of photography that becomes, in the words of one colleague, "a watered-down version for STEP, and finally shows up on the cover of the employee benefits brochure for Amalgamated Widget in Peoria. Sad, and wrong, but an old story. The whole thing is more pathetic than outrageous." Meanwhile, I have lived with the work of Victor Schrager for years, and I am saddened by the fact that a leading design magazine would publish photographs which seem suspiciously similar; that the work is stock photography does not change the editorial decision to feature this artwork on its cover. Shouldn't a magazine about creativity respect creative ideas? Moreover, in a world where creative ideas are published and processed into our culture as quickly as bread rises, shouldn't magazine editors, not lawyers, share in the responsibility for protecting original creative work by not publishing what looks like a copy of another's well-known work?

Victor Schrager began photographing birds held in a human hand while on a Guggenheim Fellowship in 1993. His photographs are beautiful platinum prints that have been widely exhibited, including Pace MacGill Gallery and The Art Directors Club in New York City, and Los Angeles County Museum of Art. They are now in numerous museum collections, including the Whitney Museum of American Art and the Houston Museum of Fine Art. They have been published in magazines as various as Blindspot, House & Garden, Town & Country, Orion, Audubon Magazine, and Omnivore. The work was also presented in a special issue of Life Magazine, "The Best Photography of 1999," in American Photography 19, and in the AIGA 50 Books Exhibition 2001. Further, they were also published in book form in BIRD HAND BOOK, a collaboration of Victor Schrager, A.S. Byatt and Stephen Doyle, published by Graphis in 2001. A description of the book reads as follows: "Over a period of seven years, Schrager has elegantly photographed over 100 species of birds in the hands of ornithologists. In each of Schrager's rich, platinum prints the human hand is transformed into a delicate pedestal for an even more delicate creature. Bird Hand Book combines these sumptuous images with a charming and enlightening essay by Booker prize-winning author A. S. Byatt." (This amazing book was on Design Observer's recommended book list earlier this year.) In the context of this post, it is important to note that these photographs are well-known within the design world — among leading designers, in design magazines and publications, and as the winner of numerous design award competitions.

Clearly, Victor Schrager did not invent the image of a bird in the human hand. There must be birders who have made similar pictures as snapshots, perhaps even as editorial photographs for a nature magazine. There are, of course, classic images of the mystical falcon held in a gloved hand. In art photography, I imagine this type of image, as subject matter, has appeared in other work as well. A few specific photographs by Mario Cravo Neto come to mind. Nonetheless, there is something singular about the photographs of Victor Schrager. (Just as there is something singular about the illustrations of Brian Cronin or Henrik Drescher, two of the most copied of contemporary illustrators.)

Emily Potts, the editor of STEP Inside Design notes on the magazine's website: "This issue is packed full of never-before-seen work produced by deserving, under-recognized talents. If there is one lesson to learn, this is it: Don't get too comfortable with your success. The new breed is gaining on you." One assumes that Ms. Potts means that the new breed is creeping forward, on our tails, through new ideas. One does not assume that the new breed is gaining on us through potentially uninspired copying of "never-before-seen work." Victor Schrager's work was "never-before-seen work;" one is not so sure about Marcie Jan Bronstein's work. Is it original work, an uninspired copy of the work of another photographer, an homage to a photographer she admires, or simply outright plagiarism? I do not know.

In the 1980s, there was a lot of fun to be had in borrowing Spy Magazine's "Separated at Birth" view of the world. This editorial conceit was appropriated by Print Magazine under the guidance of Steven Heller for over a decade. Fun is fun. But, month in, month out, comparisons of plagiarism cease, at some point, being fun. I am not submitting this example of potential plagiarism to Print Magazine because they would take months to publish their findings. There is no inherent benefit to such delay: the conversation is more relevant while this issue of STEP is still on the newsstand.

The charge of plagiarism is not a simple one. Malcolm Galdwell has explored the complexity of this issue recently in The New Yorker. Designers should take note: the idea of borrowing ideas is getting more complex everyday. Inherent in the modern definition of originality, though, is that ideas are extended, language expanded, and syntax redefined. Take a psychologist's ideas and experiences, as explained through the eyes of a journalist, and turn them into a play, a work of fiction — this is a work of complex "appropriation." I believe the design world benefits greatly from such an understanding of complexity.

It is, of course, interesting to ask ourselves why written plagiarism is treated more seriously than visual plagiarism. Recently, a department chair at the Parsons School of Design resigned after it was publicly revealed that his book on modern architecture contained "extended passages of verbatim plagiarism." (This story was reported in the Chronicle of Higher Education — not in any design journal or magazine except for The Architect's Newspaper.) To be noted from this article is a comment by William S. Strong, a lawyer in Boston who represents MIT Press, "Plagiarism is a moral violation..."
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I'm not sure if written plagiarism is "treated more seriously" so much as there's simply more familiarity with it:
- we're all ingrained with how bad it is during early schooling
- it's easier to spot (esp. in the instances, like the one you cite, where it is verbatim)
- in art there's a culture shift that doesn't revile "cannabilism" via pastiche and homage as much as literature
- in design, ideas/works can be commodotized easier as "tools", "standards", or "conventions." This is because we all use design and authorship and ownership can get weirdly blurred.

Just some thoughts. I'd love to hear more of what you think.
daniel harvey
01.06.05 at 11:10

Perhaps written plagiarism is easier to quantify than visual, and even aural, plagiarism. A set of words on a page are what they are: if they match up to another set of words from another piece, that is pretty easy to assess that it is plagiarism. Two photographs of the same object can be vastly different in a number of ways, and even the same two sets of notes can be played to sound more different from one another than those words are. One could argue, though, that two photographs of the same object that "describe" that object in differing ways is more like two sets of prose describing an identical object or even in different ways. If so, is the only equivalent to a direct pull of words, the usage of the exact same photograph and passing it off as your own? If that set of words is part of a larger, non-identical composition, then the visual equivalent is perhaps stealing a photo directly and breaking it up, cropping it, or manipulating it only slightly.
kadavy
01.06.05 at 11:12

Okay, show of hands: Who having read this knew of Victor Schrager previously?

I am not submitting this example of potential plagiarism to Print Magazine because they would take months to publish their findings.

Isn't that implicitly the accusation you said you weren't going to make back at the beginning?
Sometimes the things (we point out) we won't say tend to carry more weight than anything else, William. This whole thing seems a bit disingenuous to me, not to mention the fact you've very carefully skirted even considering the eventuality that Bronstein was unaware of Schrager, or at least of influence(see the "cryptomnesia" theory re: Nabokov plagiarizing Lolita), although "uninspired copy, watered-down version, plagiarism," and even, generously, "homage" are looked at on the simple basis of Schrager's subjectively wide exposure. I've learned the hard way in the past not to presuppose that one's own reading habits are indicative of anything except just that.

For the curious, Marcie Bronstein's images are offered by Veer, where more birds in hands may be found. Slippery slope, and all that.
(I tried to find two in a bush, I swear I did.)
Su
01.06.05 at 11:31

There is nothing disingenuous about my post. I really want to explore this issue.

The examples cited by Su of "birds" and "hands" bear no resemblance to the work of Victor Schrager, and should not deflect this conversation. Yet the two photographs of Marcie Bronstein on Veer do. I remain commited to the position that I cannot say what Marcie Bronstein thought when she took these photographs, but that they are seemingly similar to the work of Victor Schrager.

What I can question is how an editor of a design magazine can publish such work when similar photographs (by Victor Schrager) have been published by Graphis, a leading competitor of STEP, exhibited at The Art Directors Club, and were winners of both the American Photography and AIGA competitions. (That they were also exhibited at the Whitney and the LA County Museum of Art presupposes a level of art awareness that I am not presupposing is part of a general design awareness.)

As I noted above, "In the context of this post, it is important to note that these photographs are well-known within the design world — among leading designers, in design magazines and publications, and as the winner of numerous design award competitions."

I stand by this assertion.
William Drenttel
01.07.05 at 01:00

hello all, thanks for the post, william -

i remember listening to a radio show a long while ago where a seasoned movie director was being interviewed (of course i cannot remember his name!) and one thing he stated really stuck out to me: he talked about how all throughout our education we are taught to be critical of words. from our very first english classes (fill in your native language class where appropriate) and so on we are pushed to read, write, comprehend, and be critcal of writing. unfortunately, we are never given the same opportunity when it comes to photography, film, animation, graphic design, etc. i think this leads to a "if i see it, it must be OK to see" kind of mentality where no one really questions what they see (well, except for designers of course).
michelangelo capraro
01.07.05 at 01:51

I am really not sure about this one. I think you may have chosen one of the most difficult-to-prove areas of copyright/plagiarism. For instance, does (the estate of) Richard Avedon have dominion over large-format, white-background, candidly posed b&w photographs of people? Does Victor Schrager have dominion over photos of birds in hands? Once someone publishes a book, or widely exhibits a series of photographs, do they then "own" the idea or concept of that photography or artwork?

If you want a photo of a bird in a hand, must you now and forever go to Victor Schrager?

Until such a time as such things are regulated, collected in some kind of mega-database, and enforcable, I think you're on shaky ground. There are just too many people generating too many ideas. It's nearly impossible to say "you saw this first, then copied it." And people do copy things all the time, with wonderful results.

Your point seems to be that STEP, being in the design industry, should know better. I would give the benefit of the doubt that the process was more likely to be [bird guide>bird>stock photography>hey! bird in human hand!, perfect!] rather than [bird guide>victor schrager>find me something similar].

Interestingly, I am featured in this issue, and a design piece that i did has 2 handprints: one red, one white on a black background. On the facing page another designer has a page with 2 handprints: one red, one black, on a white background. Funny that. I expect us both to be sued by someone ...
marian bantjes
01.07.05 at 02:11

A quick comment from someone who designed a small magazine for an even smaller bird conservation organization for nearly a decade: bird-in-hand shots are a dime a dozen. Field researchers shoot these kind of shots all the time when tagging or examining birds in the field, and I'd bet they've been at it since cameras became cheap and portable in the first half of the 20th century.

Victor Schrager's work is beautiful, but it wouldn't surprise me if an image similar enough to attract Mr. Drenttel's notice had been shot by a bird-loving preservationist in the 1930s.
Marc Oxborrow
01.07.05 at 03:24

I hate to say it - but your collage of putting the two shots next to each other is much much stronger than either photo alone. On a subliminal level you've created something much more original in the process and giving a nice play on the expression "a bird in the hand is worth two in the bush".
Michael Pinto
01.07.05 at 05:28

I must say, I don't see this as plagiarism at all. Even if the STEP designer was aware of the original photo, you could not mistake one picture for the other.

On the other hand, if the magazine cover attempted to reproduce the artist's photo, without attribution and without any other aspect of 'fair use' (such as satire etc.) -- that would be plagiarism.

You say "there seems to be an implicit understanding that any original work can and will evolve into the work of others". I couldn't agree more. Creative output is all about drawing from your experiences and shaping it into something new -- even if those experiences involved liking a certain photo with a hand holding a bird, and making other, similar photos.

Victor Schrager's photograph has lost none of the qualities that made it worth hanging on your wall in the first place! True artistry will stand out even among imitations.
Stephen Bounds
01.07.05 at 08:49

This is a very good topic, William. I just wish you would have chosen a stronger case example.

To me, the comparison of these photos is a bit trite. The Schrager photo is compelling and mysterious. Why is the hand coming from out from under the cloth? Is the person dead, or hiding? The tonal quality enhances that mystery, and increases the tension. It almost has a film noire quality to it, yet the bird is so delicate -- in both form and scale.

The Bronstein photo, however, focuses so much more on the bird and her precarious perch on the fist. Because of the cropping of the photo, as well as the soft-focus background, there is no environmental context to the photo. The subject matter is clearly more about the bird. It does not evoke a sense of story like the Schrager photo does.

The subject of plagiarism certainly needs to be discussed among designers, however. All through my education, from elementary on up, I recall being told that if we used a written source, we needed to either quote it and give it a proper reference, or to put the information entirely into our own words. (Actually, it is a bit more complicated than that, but that sums it up.)

We have, to my awareness, no such dictum for visual referencing. And, as I'm sure this post will prove, we even have a difficult time agreeing on what constitutes an influence, and what is open plagiarism.
Daniel Green
01.07.05 at 08:59

I have to side with Marian on this, and she has well expressed my sentiments on this issue.

To add something to the conversation, the particular appearance of a bird on the cover of STEP seems to be right in line with things I've been seeing in design, fashion, music, and other creative "venues" for some time. The new DWR store in Chicago has silhouettes of birds on one of its walls, clothing line Modern Amusement uses a bird as part of its mark, recently defunct band Sixpence None The Richer used bird imagery on its final studio album Divine Discontent, and even a tshirt line I'm working on has an image by an artist with birds flying against a cloudy background. I could spend days writing about other examples.

I suspect that the appearance of a bird on the cover of STEP has more to do with either the process Marian mentioned, or with a "bird image" fad for which STEP should "know better" but has commited no grave sin.

I think the biggest problem with this kind of "non-accusation" is conveniently ignoring the fact that there are only so many ideas under the sun. If I unconsciously arrive at a similar conclusion as someone else, that doesn't mean I plaigarized. That means I am a product of a life-long series of events which have lead me to that point, just as with the other creator. Sadly, with the infinite possibilities of experience, there may not be infinite arrivals - it's easy to reduce conclusions and suggest that variations on a theme are not independent variations at all. While I know plaigarism, appropriation, copying, etc exist, I also know that every instance of similarity does not equal an instance of compromised professional ethics.
Andrew Twigg
01.07.05 at 09:18

Marian -- your example of the handprints mirrors an experience of mine.

Over a decade ago, I designed a logo for an in-home, sick-child care service for a local hospital. Unbeknown to me, at the exact same time, a good friend of mine in town was also designing a logo for a local child care service.

While the rendering of our logos was completely different -- he used a "universal person and child" quality to his rendering, while I rendered my logo with a panda bear and cub (related to the name of the service) -- the overall form of the visual (child reversed out of arms of adult) was exactly the same. To look at them side by side would convince you that one of us had absolutely copied the form of the other.

Yet neither of us knew of the other's activities. Even if we had known of the other's respective projects, I know this person well enough to know that he would have never copied a form from me. And I would have never copied from him.

It was just a really, really weird coincidence. And it happened in the same town, in the same year. I hate to think how difficult it would be to hold up work done over the course of many years, and from across the globe, and try to figure out if someone had previously seen something and copied it.... or, if it was just a really weird coincidence.

Nevertheless, this discussion of copying and plagiarism is a good one.
Daniel Green
01.07.05 at 09:31

I had seen Victor Schrager's work before reading this piece. I think it's a stretch to imply plagiarism is evident here.

Just because one artist produces an image of a bird perched on a hand doesn't mean that similar images are copies or have even been influenced by that artist's work.

Also, the sentiment that one should be up-to-the-minute and aware of all that is going on in the worlds of art and design in order to be graphically responsible comes across as rather snobbish to me.
Jesse Ewing
01.07.05 at 10:18

In another thread here on Susan Sontag, I quoted a from an essay she wrote on Cuban poster design. Particularly striking was her statement "Posters are an applied art because, typically, they apply what has already been done in the other arts." It's not a stretch to apply this to design, and, I suppose, commerical photography.

Sontag goes on to say, "As an art form, posters are rarely in the lead. Rather, they serve to disseminate already mature elitist conventions...For example, Cassandre's famous posters for Dubonnet (1924) and the transatlantic liner Normandie (1932), clearly influenced by Cubism and the Bauhaus movement, employed these styles after they were comonplaces in the fine art scene, already digested." She adds, "The relation posters have to visual fashion is that of 'quotation.' Thus, the poster artist is usually a plagiarist (whether of himself or others), and plagiarism in one main feature of the history of poster aesthetics."

Substitute "graphic design" or "commerical photography" for "poster," and keep in mind that Sontag was enthustiastic about the work she was discussing.

Because I knew Schrager's work, I too was struck by the similarities of Bronstein's work on the Step cover. Yet, as many have commented here, originality can be as hard to certify as plagiarism. Maybe Sontag had a point: the world of visual communication is so inherently parasitic that it's all moot.
Michael Bierut
01.07.05 at 11:00

"What I cannot answer is why Marcie Jan Bronstein took this particular photograph, or others in this vein, and entered them into a commercial stock photography archive."


I understand your point. Like Marc Oxborrow said, these shots are dime a dozen.

Out of the thousand variations of bird in hand shots, why would Marcie enter this particular one as an example of her work?

But, I don't think this is a case of plagarism. If legal standards for photoplagarism were to emerge, it could hurt photography much more than protect it.

In a field where reputation is so important, bringing these issues to our attention through forums like these is just as valuable as any legal remedy.

Steve K.
01.07.05 at 11:17

I hope this does not change the subject too much, but I am reminded of Paula Scher's posters for Swatch that for some was a complete rip-off of Herbert Matter and for others was an homage to his Swiss tourism advertisements. What occurred with Scher's posters is similar to whats happening in this conversation. For those who are not familiar Schrager's work, STEP is just running a bird on their cover (following the design trend of using birds everywhere nowadays). And if you have Schrager hanging on your wall, of course it raises a question as familiarity tends to spark interest, and in this case, frustration.
Lenny Naar
01.07.05 at 11:54

first off, the idea is not all that original...a random photo of a 'bird in hand' that happens to be the same kind of bird - a popular bird that just happens to be just the right size to fit into a hand. I think you are REALLY streetching here to make any kind of connection between the two.

Is a maazine supposed to research every single photo they ever use to make sure that no one ever in the history has used a photo that "sorta, kinda is the same idea done differently." B freaking S.

and frankly, I think the photo used for the magazine is several levels above the other photo...just my personal preference.
Jesse J. Anderson
01.07.05 at 12:03

An interesting topic, indeed.

I had never heard of either photographer, although I have certainly seen photos of birds in hands. A Google® image search for "bird in hand" returned over 11,000 hits.
Andrew Montgomery
01.07.05 at 12:18

There's a story that appeared in an old Atlantic Monthly magazine of a Scrabble tournament in which an opponent yelled: "Apply? I've heard of limey and orangey. But apply?" It's called Scrabble blindness. Maybe we need a new term, "designer blindness".
Kevin van der Leek
01.07.05 at 12:33

Visual culture influences the graphic designer, and can we transform our sightings through complex appropriations, serious/cynical tributes or plagiarism, among others.

I don't know the circumstances that went into the STEP cover's creation, but I can imagine how tight and fast-paced its design and production must be. Plagiarism crosses moral boundaries, but temptation can set in when faced with a tight deadline, need to please, or nice paycheck. One could easily put aside values when it comes down to delivering for a client or superior. Still, this does not make plagiarism ethical.

Beyond right and wrong, I see this conversation being about newness. Where are today's original ideas? Are we incapable of making something new after accomplishing so much in the visual and applied arts?
Jason Tselentis
01.07.05 at 12:39

As others have pointed out, originality is very difficult to pinpoint. And while I don't think the above example is worth that much trouble, it is worthwhile to point out. For one thing, I think it's a good idea to create the occasion to question the myth that new ideas spring fully formed from the mind of some great thinker divorced from the rabble. It's also important to point out examples like the above because often the more watered down version of a work becomes the version most widely known (I am thinking mainly of the history of rock and roll here). And it's good to be made aware of or reminded of a work's more fertile siblings or predecessors for the sake of a richer culture as well as context.

One of the main complaints here seems to be that the photo in Step is not quite as good as the Schrager photo. Schrager had taken a good idea and improved on it (for which he has been praised) while Bronstein has taken an idea without clearly improving on it. The annoyance expressed in this post seems more about the quality of appropriation and a perceived lack of cultural awareness than about plaigarism and two photos.
Trent Williams
01.07.05 at 12:50

The addtional images I linked at Veer weren't so much intended to resemble Schrager's work as to point out that both these images can be summed up with half a cliché. But Mr. Oxborrow's comment probably handled commonality more aptly, anyway, and now that Andrew mentions it, birds do seem to be a bit of a "thing" at the moment.
You still, however, fail to address my(and now others') real issue with this piece, which is that are you are (not) accusing Bronsteing of (not) plagiarizing, and so you're (not) submitting this case of (possible) plagiarism to Print because it would take them too long to say (whether) it is, which is frankly more damaging to everyone involved than if you had come right out and yelled, "J'accuse!" At least everybody knows their position, then.

"Exploring a topic" does not necessarily involve naming names. To return to your example of the resignation, while you claim to not have intended making an accusation, you're again conveniently ignoring the fact that in an academic setting, even the suggestion of plagiarism can be extremely damaging. If you're going to wonder why it's treated more seriously in one situation, you might also try and avoid setting a precedent in your own.
Su
01.07.05 at 01:07

Whatever...

Just how original is a photo of a hand holding a bird ?
I'm sure there are many other photographers that has taken similar shots without knowing about these shots.

Now if there was a clown in the background holding a fish, the arguement might hold up.
Anders Dahl
01.07.05 at 01:46

Michael B. -- Interesting perspective from Susan Sontag. However, I'm inclined to question the implications of her statement.

Given her logic, then, the Cubists would in turn be guilty of being plagiarists for including segments of newspaper and typography into their paintings, not to mention plagiarizing Cezenne for his sense of space. In fact, with her logic, I get the sense that we're all plagiarists.

I'm perhaps splitting hairs, here, but there has got to be a difference between drawing influence from various sources and plagiarizing. Otherwise, everything is either fair game, or a lawsuit waiting to happen.

I guess that's why this is a worthwhile discussion.
Daniel Green
01.07.05 at 01:47

clearly william prizes originality. to prize originality means that he agrees with the notion of the artist as visionary whose works are novel and therefore culturally important.

why is he holding a commercial photographer up to the same values? why would an artisan in service to commerce be expected to be both original and culturally relevant, when commerce doesn't necessarily play by those rules?

william's piece puts too much emphasis on his example over his argument. the result is that his intentions appear somewhat petty when i'm sure he's more interested in the larger argument.

there's also the issue of making such an argument in an open public forum without openly inviting either artist to comment.
pk
01.07.05 at 01:54

william's piece puts too much emphasis on his example over his argument. the result is that his intentions appear somewhat petty when i'm sure he's more interested in the larger argument.

I wholly agree, pk.
Andrew Twigg
01.07.05 at 02:09

> william's piece puts too much emphasis on his example over his argument.

However, the example is not arbitrary nor should it be taken as a backdrop for a bigger argument. This discussion could be carried out with a number of examples - I mean, Print magazine has over a decade's worth of examples, right? I'm guessing that this issue (pun intended) is even more sour because Schrager's image graces the cover of Omnivore magazine, a Winterhouse design... which could alse explain why Bill is running his posts through his lawyer...

This whole thing seems like an example of When Conicedences Attack.
Armin
01.07.05 at 02:58

so basically, armin, you're saying that this is indeed an accusation, even though william clearly states it's not.
pk
01.07.05 at 03:22

Well, yes. But I'm not decreeing it as right or wrong. Without accusations we would have a lot of people doing bad things - lots of people still do bad things regardless, but... Anyway, I don't see Bill's "accusation" as something bad. No. Go Bill, actually. And anyone else who thinks wrongdoings are being done. In fact, I think his example is good and that is why it shouldn't be discarded as part of the argument even if, to some, it seems petty.
Armin
01.07.05 at 04:07

everything is plagerism, nothing exsists by itself
jjc
01.07.05 at 04:18

everything is plagerism, nothing exsists by itself

Well, we all borrow stuff that God already thought of.

But given the legal implications in the word "plagiarism", there has to be some distinctions -- even if they're fuzzy ones -- between blatant copying/stealing/passing-something-off-as-your-own vs. being influenced by something, or having a common influence with someone, or creating a distinct and meaningful transformation of an idea.
Daniel Green
01.07.05 at 04:40

Patrick—Can you seriously read it as not an accusation? This post will make it clear that I disagree with Armin about this particular accusation. I am confused by Bill's apparent disingenuous response about the nature of his essay.

Daniel—There are no legal implications to the word "plagiarism," per se.

Bill—It is obvious that your lawyer is the last person you should discuss this with. His question, "if the original work of a photographer being copied is not protectable under copyright law, then how can I accuse an offending party of plagiarism?" confuses copyright protection and plagiarism. If your lawyer does not know the difference between plagiarism and copyright infringement then he is not going to help clarify your thinking. It is clear to me that the image you attack is neither copyright infringement nor plagiarism.

As you said, "Clearly, Victor Schrager did not invent the image of a bird in the human hand." There are, as has been pointed out, many images of birds in hands. It would be surprising if there were not. The verbal cliché should be the source of inspiration for many if not most of them. The persistent theme of contact between people and nature is another. The tendency to place small, cute things in an intimate situation is another.

One thing that copyright infringement and plagiarism both require is a second creator's contact with the work supposedly being copied. You could have easily found out whether Ms. Bronstein was familiar with Schrager's photos by doing what I did: I called her and asked. She said no. (Since I was not familiar with his work I can think of no reason to doubt her claim.)

Even if she had been familiar with Schrager's work, her image is, as you admit, hardly a copy of the image you show. If her photo had been inspired by his, that would open a range of interesting questions about originality but the fact that it was not renders that moot for this example.

If one were looking for prominent samples of copying in graphic design and photography it would be easy to find thousands of better ones. I can only assume that your love of Mr. Schrager's work has somehow made you hypersensitive about his photographs but, frankly, this is a poor choice of images to start this conversation and you have done an uncharacteristically bad job of stating issues.

Additionally, you have made a serious public accusation without even a perfunctory investigation of your charges and made the accusation under a pretense of not making accusations. This is unlike you. You owe Ms. Bronstein both personal and public apologies.
Gunnar Swanson
01.07.05 at 04:58

Daniel—There are no legal implications to the word "plagiarism," per se.

Thanks for the clarification, Gunnar. I stand corrected. Instead of "legal," let's say "fully loaded with major doo-doo."
Daniel Green
01.07.05 at 05:15

I have received a number of emails regarding Mr. Drenttel's "critique" and the resulting thread, so I will respond briefly.

I think it should be known that first, Mr. Drenttel emailed me late last night, only after he posted his piece, and second, that he chose not to ask me a single thing about my work in his email. What then might his intentions really be, in mounting such a bizarre attack on my photograph?

My email response to him was as follows: "I am sorry that you have chosen to publish such a bewildering attack on me and my work without first consulting me. And I am offended by your assumption that I, in some way, appropriated an IDEA as general as photographing some thing (in this case a bird) being held by a human hand. The fact that one artist (Mr. Schrager) is very well known, and the other (me) less so, does not a priori demonstrate a lack of ethic on my part. In my opinion, the two photographs are not similar in any way other than their subject matter. They share no compositional similarities, nor do they share the same color palette. They were photographed with very different lenses under very different lighting conditions. Mr. Schrager's photograph is taken from a bird's eye view, while my photograph was shot at eye level. The photograph that you see on the cover of STEP magazine has the following history:
It was taken by me in April of 1998. My husband found the sparrow, after it had flown into our kitchen window. I took the photograph in an impromptu manner, the manner in which I take most of my photographs. I then printed my black and white image on silver gelatin paper, split toned it, and hand painted it with watercolors. For your further information, my image of the sparrow on my husband's hand, chosen by STEP magazine, has been severely cropped and inverted by them. Nonetheless, I am pleased that they chose to use it."

Then, in an email exchange that took place this afternoon with Emily Potts, of STEP inside design, I wrote:
"One wonders why Mr. Drenttel has expended so much energy on something that clearly is a non-issue, and moreover, hardly a new issue. Is he trying to secure the "value" of his personal photo collection, by rallying around Mr. Schrager and his bird-on-hand image?? Is any photographer who poses a model with a pouty face and deep cleavage plagiarizing a Cosmopolitan cover?? Did Mr. Schrager plagiarize Mario Neto Cravo, or countless other photographer's bird-related photographs? As an artist, I frankly find these questions to be absurd. My photographs are my photographs only. They are the result of an inexplicable process that encompasses a lifetime of living and breathing and thinking and studying and working and looking out at the world through my own eyes and my own lenses."

This was my first encounter with designobserver.com. I am appreciative of the many posts by contributors who clearly understand the mistaken position of Mr. Drenttel. I hope that future visits to the site will reveal dialogues of a more substantial and informed nature. It's hard enough being a professional fine artist without having to endure personal attacks on one's intentions, integrity, and creativity... from within the field, of all places.
Marcie Jan Bronstein
01.07.05 at 05:50

Ironically, a better example for William Drenttel's discussion might be: Ms. Bronstein's photograph of a cappuccino with a heart in the foam as seen here, and the cover of this month's National Geographic, which can briefly be seen here. The subject is much more specific and conceptualized than a 'bird in hand,' which is something that came up in the normal course of her life, and the composition is very close.

The image of a heart in the foam of a cappuccino is one of many possible visual images that could solve the problem of how to express love for coffee visually.
Alex Galt
01.07.05 at 07:19

After Marcie's post, I'm hesitant to further comment, as her response is a fitting last word on this (at least until Monday morning). But here goes.

My point stems from Daniel Green's interpretation of the Sontag quote Michael previously posted. When I was in architecture school, I had this teacher who drummed into our heads the idea of transfer versus transform. Revivalist, neoclassicist architecture simply transferred the styles of Greek and Roman architecture by slapping colonnades and columns on the front of 19th and 20th century structures. Transformation applied more to Le Corbusier's Villa Savoye, where columns and pediments were present, but had been rethought, reprocessed, and transformed (as had the whole home design) by Corbusier's mind into something new, not to mention more in line with the historical context. That teacher wanted us to be transformers. Easier said than done.

The Cubists, in my mind, transformed, not simply transferred, the ideas of Cezanne—and managed to recontexturalize the materials like newspaper—into something new. It was an evolution of art. Sontag's point, to me, was that designers are not plowing new artistic fields in this manner, but rather (because of the commerical skew to the work) are more echoing what is already there. When has design ever been an evolution of anything but itself, really? As long as it is tied to the commercial world, only the few fringe practitioners will push us along. Not to say that the work of Cassandre is unworthy; for design to connect and function in the traditional sense, it probably NEEDS to have some familiarity, it needs to be an echo. Artists don't have to address this dilemma if they don't want to. As a designer, part of me wants to hate Paula Scher's Swatch posters, but part of me also feels they are wonderfully appropriate and a hell of a lot of fun.

So can we ever, as comtemporary applied artists, truly transform what we absorb into something completely new in this information/image-glut, fractured world? Maybe not, but it is something to strive for and I admire William's willingness to (even if he didn't intend to) lead the charge. If anything, this initial post is incentive to stop being lazy in our own work and push down the road less travelled. Maybe the criticism should be levelled at the designer of the STEP cover rather than the photographer? Couldn't this designer have commissioned a photographer—or maybe come up with a better cover design idea—rather than use a stock photo? Well, we all know the struggles in this arena.

Seeing the two photos next to each other makes me feel it's more an issue of the context in which they are used, AND the way they are presented—one is a stock photo, the other a piece of "art". Put Marcie's photo up on a gallery wall, Victor's on STEP and do they change in our minds? Something to consider.

Which goes to my last comment. I went to the same place in my mind that Armin did when I saw the aforementioned Schrager photo on the cover of the Winterhouse-designed Omnivore issue. While I think that William started a GREAT discussion with a very thought provoking post, it hurts his position that his comments could be construed as an intellectual argument that maks something more personal, whether intentional or not, and especially in light of Marcie's response.

Then again, what argument isn't personal?
Eric Heiman
01.07.05 at 08:15

Thank you for mentioning this petition
(i.e http://www.garamonpatrimoine.org ; in Observed XX on Jan. 05 2005 (and sorry to answer here, I did not see a comments link for this topic..
For the Initiative Garamonpatrimoine, year 2005 started with 14.000 signatures, of which 4.000 from various
countries (80) other than France.
We are sorry not to be able to translate into English all the
documentation that the Initiative Garamonpatrimoine has put on line.
This is also a site you can visit to visualize pictures of punches and
machinery.

What else can you do after you have signed via
http://www.garamonpatrimoine.org ?

1) Maybe e-mail the "regional press" (i.e. if you live in the U.S. of
A., this means, for ex., the Boston Globe or the L.A. Times). This is
not only a French thing as the collections have, for many, no match
elsewhere ;
2) You can protest by e-mail to the local French consulate or embassy,
just voice your discontent (he will be forwarded to the Quai d'Orsay,
i.e. the French Foreign Office) ;
3) You have an Alliance française outlet or « Centre culturel français »
nearby ? Maybe print the « dossier de presse » (22 PDF pages, in French)
as it can make some good pedagogical support for the teachers.

You can also indeed exchange links with the site (see the soutiens.html
page, scroll down and find the e-mail address, someone writing in
English will answer).

Jef Tombeur
01.07.05 at 10:07

To head towards less personal issues -

Creative ownership and the economics of our society seem so closely linked it makes me suspicious of why we protect intellectual property and who we are really protecting. The inheritance of property and power has caused much of the inequality and political helplessness so many of are feeling today. Similarly, artistic property is owned and inherited, sometimes by large corporate bodies with nothing but profit as their motivating force. Perhaps if we weren't so easily able to associate our 'unique' ideas to what profit or fame we may receive through them (thereby requiring their protection) we would have a purer incentive to create and be better contributors to society. Maybe we could shift from saying 'I was robbed' to 'I shared'.

A book that is recommended on this site, 'Copies in Seconds', nicely explains how humanity's development through the ages has been largely based on copying.
Tara K.
01.07.05 at 10:24

I was at the record store today and these two album covers were sitting right next to each other -- I thought they were the same at first glance. It reminded me of this discussion, so I thought I'd share.

Toby Keith vs. Tim McGraw

Plagiarism? Marginalized design(ers)? You make the call.
Ryan Nee
01.07.05 at 11:24

The examples of Bronstein vs. Schrager is debatable, but the issue remains. Why do we as a community tolerate visual plagiarism? You've seen it; a poster for an AM sports radio with their call letters treated to look like the logo of the local football team; a billboard of the pop music station composed to look like Britney's latest album cover, the endless variations on the "Got Milk?" ads. Composition, styling, and designs borrowed without adding new meanings, used to promote and sell something else. They're not satyr and they're not homage. They are blatant plagiarism. These examples don't add or comment on the original design, but rather ride the coattail of their success for the sake of profit. Again the question, why do we tolerate it?
Nipith Ongwiseth
01.08.05 at 01:31

As per Scher vs. Matter, and the sports radio vs. team logos, those are gray areas in the realm of parady, which is protected under the First Amendment-thanks in part to 2 Live Crew.

Booty Bass puts everything in perspective.
Derrick Schultz
01.08.05 at 01:56

Now that I have hopefully put a smile on at least one person's face, let me also say that while I believe we should as a community put standards into our work, but I would hope it would not be to the stifling of creativity. We don't want to turn into the music industry, where we sue over frivolous concepts as single musical notes. Its scary, but in today's climate of intellectual and creative property, I wonder if Dadaist collage would have been sent a cease and desist order.

My personal approach is that if someone's plagarism hurts you financially or professionally, you have justification for action. but if the context is different, then i think its more important to focus on your own career and push forward. If its true plagiarism, well, I hope they get whats coming to them if karma does exist. I'm not gonna compound the mud-slinging, but I do think its at least provided a reasonable forum for discussion like this.
Derrick Schultz
01.08.05 at 02:06

"Imitation is the sincerest form of being an unoriginal thieving bastard... " I think that Douglas Adams said that but I'm not sure so I'll just claim it for myown. Are we still beating this dead hors..bird? Did any one notice that the bird on the right hand is lying on it's belly in an unhealthy or unbird like posture? Does anyone else find symbolic (or cymbalic) significance in that the hand on the right is left and the one on the left is right or is that wrong? What I'm trying to say is that plagiarism is in the mind of the beholder, if a viewer thinks something is derivative or original that is part of the impact of the piece, and I hope to have the last word so that this topic may be put to sleep.
GB in MA
01.08.05 at 04:35

If CNN will forgive me for 'stealing', I'd like to quote from a recent interview they did with Bill Gates in which he describes a new spectre stalking the world, a sort of 'copyright communism':

CNN: "In recent years, there's been a lot of people clamoring to reform and restrict intellectual-property rights. It started out with just a few people, but now there are a bunch of advocates saying, "We've got to look at patents, we've got to look at copyrights." What's driving this, and do you think intellectual-property laws need to be reformed?"

Bill Gates: "No, I'd say that of the world's economies, there's more that believe in intellectual property today than ever. There are fewer communists in the world today than there were. There are some new modern-day sort of communists who want to get rid of the incentive for musicians and moviemakers and software makers under various guises. They don't think that those incentives should exist. And this debate will always be there. I'd be the first to say that the patent system can always be tuned--including the U.S. patent system. There are some goals to cap some reform elements. But the idea that the United States has led in creating companies, creating jobs, because we've had the best intellectual-property system--there's no doubt about that in my mind, and when people say they want to be the most competitive economy, they've got to have the incentive system. Intellectual property is the incentive system for the products of the future."

I very much disagree with Mr Gates, who's clearly referring to Linux and the Copyleft movement. I create media content, and it's nice (sometimes, but not always) to be remunerated for it, but I'm happy to be counted with the new 'communists'. The incentive system for the products of the future is wanting to make - and share - great work, not wanting to own things.

I also think it would be an incentive to hate artists if every time a William Wegman came along it became an act of plagiarism to photograph a Weimaraner. Great photos, William, but damn, I used to enjoy photographing these dogs...

The ultimate comment on this issue has to be Borges' story 'Pierre Menard, Author of the Quixote'. Menard, says Borges, "did not want to compose another Quixote --which is easy-- but the Quixote itself. Needless to say, he never contemplated a mechanical transcription of the original; he did not propose to copy it. His admirable intention was to produce a few pages which would coincide--word for word and line for line--with those of Miguel de Cervantes... The first method he conceived was relatively simple. Know Spanish well, recover the Catholic faith, fight against the Moors or the Turk, forget the history of Europe between the years 1602 and 1918, be Miguel de Cervantes..."
Jerzy Radovic
01.08.05 at 05:41

This has been a most interesting thread. I appreciate the depth of comments and the response to the complicated issues in my post. Below, some explanations, additions and qualifications.

1. This post was sent to Emily Potts, the editor of STEP; Marcie Jan Bronstein; and to Victor Schrager simultaneous with its posting. All were
invited to join in this discussion.

2. Emily Potts has responded off-line and has given me permission to quote her email:  "Thank you for sending the link to your article. While I don't believe we (STEP) plagiarized anyone, it's a good discussion nonetheless, and the comments that keep coming to the site are thought-provoking. If we're going to get into a discussion about plagiarism vs. inspiration, then who or what inspired Schrager? Surely he isn't the first photographer to capture birds in hands and Marcie Jan Bronstein won't be the last. Thanks again for inviting me to participate in the dialogue on the site, but I will decline, as most of the respondents have already expressed my sentiments." Ms. Potts has subsequently invited me to play out this discussion within the pages of STEP Inside Design. (Whether I do this or not, her willingness to engage the issues raised here within her publication should be acknowledged.)

3. Marcie Jan Bronstein responded to me off-line. I encouraged her twice to post her response on Design Observer. She has since posted here and her words stand on their own.

4. My post was clear that  "Victor Schrager did not invent the image of a bird in the human hand." And I was clear that Marcie Jan Bronstein's photographs are not exactly the same as Victor Schrager's. Nonetheless, I referred to a  "deep similarity" that is self-evident. It strikes me as odd that Ms. Bronstein takes pictures in 1998 that resemble a body of work begun by another photographer five years earlier, a body of work that goes on to become more widely shown — and therefore more widely known — in subsequent years. Then, seven years later a magazine editor picks her photograph for the cover of a magazine. Sometime in the intervening years, Ms. Bronstein submits a few of these images into a stock photography archive. This sequence speaks for itself, not for or against any party, but as a chronological set of facts.

5. Su raises a legitimate issue, which is that I seem to be skirting an actual accusation of plagiarism. I am not making such an accusation. We are obviously in slippery territory here: this is precisely what makes this discussion interesting and lively. My initial reaction —  "hell, this photograph looks a lot like the photograph in my living room" — does not play out well in the real world. Marcie Jan Bronstein has said that her photograph is an original work, and I have no basis but to accept this as fact. In this light, I can either apologize and walk away, or we have a conversation about the complexity of similar images, about ideas about appropriation, and, dare I say it, about plagiarism. This site exists to provide a forum for precisely this: a critical conversation.

6. The larger issue is my mind, in response to PK and Andrew Twigg, is how do we think about original work versus what seem to be copies? Perhaps the copies are not copies, but are themselves original works. Meanwhile, it is clear that we live in a culture where images and ideas are easily and endlessly appropriated and re-appropriated. If nothing else, it seems imperative that magazine editors bear a responsibility to help us sort out these kinds of issues. In this particular case, whether Marcie Jan Bronstein's photograph(s) are original becomes in a sense a secondary issue. What's pertinent is the fact that there was another, more widely known body of work, that already existed at the time of this publication. Where does this fit into the equation?

7. In the spirit of critical debate, it seems to me that there is an unwillingness on the part of both Marcie Jan Bronstein and Emily Potts to acknowledge the essential complexity of this issue. Ms. Potts does not address the fundamental issue of how or why she choose this image, and whether she had prior knowledge of, or frankly, should have had knowledge of another photographers work, given its broad exposure within the design and art world. For her part, Ms. Bronstein wants to be seen and understood as "an artist," declaring "My photographs are my photographs only." This denies the role of her photographs in a public, social, communicative and commercial context. It is not art for art's sake. Which brings me to my next point:

8. This discussion is only occurring because this photograph appeared on the cover of a national design magazine. When the work became public in this form, I believe it also became ripe for discussion and criticism. This does not minimize the work of Ms. Bronstein. However, when she sold her image to a stock photography agency, and then to the cover of STEP, her work entered into the public realm for discussion.

9. On the subject of criticism. I have taken some harsh abuse in the comments to this post, And yet, if this issue of STEP was a novel, no one would have blinked if I had observed: "This novel seems an lot like the last work by W.G. Sebald." In the same way, if I had picked out a specific paragraph and said,  "While the words may not exactly the same, I have heard this sentiment before," no one would have blinked. If I go one step further, and say that the words seem to be the same, then everyone goes ballistic. We call it plagiarism. As Su notes, "in an academic setting, even the suggestion of plagiarism can be extremely damaging." I have not accused Ms. Bronstein of plagiarism because I did not know her intent or inspiration. Nevertheless, I have addressed this issue directly because I believe the line between plagiarism, copying, appropriation and inspiration is a critical issue. I continue to believe that STEP magazine published work that is deeply referential to another photographer's work, and I question their judgment in doing so.

10. The issue of Paula Scher — and whether her work for Swatch is homage or rip-off — has come up in comments numerous times. This controversy was current over a decade ago, long before blogs, online stock photography resources, or Flickr. But the issue does not change. Ms. Scher never positioned herself as someone who was creating art without knowing what had come before or would come after. Her work for Swatch was clearly an homage to earlier work, even as she made it her own — on her own terms and in a new era. But there was no denial that there was work that preceded her that had influenced her. This is either totally relevant to this conversation, or totally irrelevant. Given that none of the parties involved will acknowledge awareness of another artist's work, I believe we must, sadly, judge it irrelevant.

11. Finally, I want to note that there are other ideas brewing about creative appropriation, far removed for this discussion. From a recent post by Momus on Design Observer: "Berlin wheatpasting is all about appropriation and appetite, so wanting to steal seems, well, an appropriate response. As in any folk tradition worth its salt, you can be sure that what you're stealing has been stolen in turn from someone else. Sometimes, as in the zine or folk traditions, it's a collective artform -- everything is 'Trad. Anon.', everything belongs to the community. At other times you can trace the theft line to an original that somebody, somewhere thinks they own, or some big company once paid someone money for. Whether anyone can police the line between diffusion and protection is another matter. You cannot have omnipresence without accessibility, and you cannot have accessibility without appropriation."
William Drenttel
01.08.05 at 09:42

Bill—Speaking of a history that people might be expected to know about, you are well aware of the rich history of social and political critics who set up dramatic introductions to subjects, drag those tangentially relevant into diatribes through juxtaposition and innuendo, then play innocent about their deliberate acts. I am frustrated and saddened that you would engage in this low-level demagoguery.

You started your essay with dramatic statements about plagiarism—"Every once and a while, the plagiarism of one artist's work by another crosses the line, or so I thought"—clearly setting that as the theme. Then you pretend to deny your clearly-set theme with the disclaimer "I seem to be skirting an actual accusation of plagiarism. I am not making such an accusation" but, like most disclaimers, that is clearly not meant to be taken seriously.

To introduce a general subject you offer only one example of similar images. You refer to "photographs which seem suspiciously similar" and ask "Shouldn't a magazine about creativity respect creative ideas?" and declare that the image in question "looks like a copy of another's well-known work." [all emphasis mine]

But, of course, you said that you are not making an accusation, clearly stating "I will not accuse anyone of plagiarism in this post." Bullshit. That is exactly what you did and clearly what you intended. I was previously willing to give you the benefit of the doubt on intent but your response continued the pattern of innuendo and denial of the clear meaning of your own statements and I know that you are not a stupid man so I can reach no other conclusion.

In your later post you state that "It strikes me as odd that Ms. Bronstein takes pictures in 1998 that resemble a body of work begun by another photographer five years earlier, a body of work that goes on to become more widely shown — and therefore more widely known — in subsequent years." [again, emphasis mine] and claim that "This sequence speaks for itself, not for or against any party, but as a chronological set of facts" but, of course, none of this is an accusation. It is not only clearly an accusation, it is a rather stupid one.

You complain that "it seems to me that there is an unwillingness on the part of both Marcie Jan Bronstein and Emily Potts to acknowledge the essential complexity of this issue" but you did not engage them in an abstract conversation about complex issues. You essentially accused Ms. Bronstein of unethical behavior and accused Ms. Potts of abetting unethical behavior either through a lack of scruples or through woeful and dismal ignorance. I don't know about you but that's about the way to get me to engage in abstract subtleties.

Until yesterday I did not know that Ms. Bronstein existed and my contact with Ms. Potts has been minimal. I have no personal stake in this other than my desire to live in a world where decency is defended. I would be glad to engage in a discussion of the complexity of these issues but could not until I made the clear and un-complex statement that you behavior—both the making of serious accusations in an unserious manner and your continued cowardice in denying your actions—is indecent. You are better than this.
Gunnar Swanson
01.08.05 at 02:07

Bill, I have to say that I strongly agree with Gunnar.

Are other images of birds in a hand suspect to you, or is it just this instance?

Frankly, I am baffled by your use of this example as the basis of a worthy discussion on plagarism. Publishing your assertions about this work before waiting for a response from either Marcie or Emily seems premature. It would have been ethically prudent (to say nothing of being kind) to have waited for a response from either woman.
debbie millman
01.08.05 at 03:37

While I did not agree with Bills post to begin with - unsubstantiated cheapshot was my first reaction - I wanted to wait for his response. I'm quite surpised by it. Gunnar's posts are a good reflection of my thoughts on this.
peter scherrer
01.08.05 at 04:18

Um. I've seen so many pictures like this, in fact I have some saved on my computer. I like this kind of image, and people have been taking them as long as there have been bird watchers. This is a ridiculous example.
Ralph McGinnis
01.08.05 at 04:25

I was not able to read all of the many responses so this may have been mentioned but, I think there are probably only a few ways a human hand can hold a bird. Right? So if you want to take a picture of a small "bird in the hand" concept, you will probably have it as pictured by the two images or; cupped in both hands.

Although I think that the way the bird is held is the ideal way to see the bird for and is least damaging to the bird. It may be one way to also have a wild bird land on your hand. The fist may look less intimidating to the bird.

These kinds of limitations dictate how an image can or is presented (maybe that's why so many images look so much alike?)

So, what's been plagiarized?
Moderno
01.09.05 at 12:07

While I feel uncomfortable publicly disagreeing with a Design Observer colleague, especially after some of the harsh things said above, I must say that I profoundly disagree with the general argument advanced by Bill in this post.

The notion that any maker of visual images could "own" the idea of a bird in the hand is absurd. The presence of the phrase in our language shows how commonplace this (mental) image is. And as Mark Oxborrow, a designer of bird magazines, makes clear above, bird photographs of this kind are a genre in their own right. There is nothing in the least bit remarkable about the mild similarity between these two images and they do not make a strong starting point for any discussion of the issue of plagiarism.

Are all the artists who have created still lifes based on bowls of fruit or collections of bottles guilty of plagiarism of some supposed original? Clearly not, but that's the implication of Bill's argument. The issue of plagiarism would only arise if it could be shown that an image was similar in many salient compositional and aesthetic details to an earlier example. That isn't the case, as others have noted, with these two bird-in-hand images. The questions about who did what first, how it was publicised, which library bought it, or what an editor did or didn't know are irrelevant.

There is no case to answer and it will be a sad day for visual creativity if the defence of copyright ever develops to the point where such a non-issue becomes grounds for litigation. Copyright is already used as a way of restricting visual materials that embody a critical response to some aspect of the visual world and any argument that could be construed as supporting these kinds of restriction is profoundly unprogressive.
Rick Poynor
01.09.05 at 08:10

ditto, Rick. My understanding is that ideas and concepts are not copyrightable. So, the concept of bird-in-hand is in no way copyrightable.

A better example is the one of an illustration contest several years ago. The winner illustrated a side view of a Native American. After the award was made, it was found that the illustration was a direct copy of a photograph. That was clearly both visual plagiarism and violation of copyright.
Marilyn Langfeld
01.09.05 at 01:53

Let's look at this question from the reverse point of view, that is, to ask what would happen if the strict "rules" against plagiarism were followed. Does the act of taking a photograph of a bird in someone's hand forbid all future photographs of birds-in-hands? Is creativity merely a game of trying to be the first to lay claim to an idea so that nobody else can feel free to explore it? I hope not!

-Cf
Christopher Fahey
01.09.05 at 02:05

I'm going to echo (plagiarize?) previous posts on this issue:

While I normally enjoy the quality and focus of the discussions here, Bill, your argument seems uncharacteristically reckless. It's not fair to state that you don't infer plagiarism in this instance, and then use it as your entree into that very debate. Further, not to have made the effort to clarify any of the facts surrounding the principals in your example makes your argument appear (I am sure unfairly) to be motivated by something other than purely critical investigation. Presented in a different context, this could have been a spirited and important discussion. Instead it has been derailed by undertone of intellectual and cultural snobbery: one that dismisses as plagiarism the creative work of the lesser-known artist — Ms. Jan Bronstein — while heralding as homage that of the more famous Ms. Scher.
CCHS
01.09.05 at 04:25

A friend of mine (a designer) directed me to this post knowing I would be interested in this subject. I am not a designer, artist, or have anything to do with the discipline of visual communications. I do however, have a certain affinity with the work of Victor and find this discussion on plagiarism interesting. Please allow me a little latitude to explain.

My Grandparents passed away about 15 years ago. Both were avid amateur botanist and bird watchers until their deaths. My grandfather, a Physicist for the government, was a self-taught, (large-format) photographer, and my grandmother a self-taught painter. Around the early 1930s my grandparents began taking "field trips" to pursue their hobbies and interests. Through out their 65 years of marriage they accumulated literally thousands of images of birds, flowers and plants. Most of the images are medium to large-format, black and white prints of all different spices of bird, flowers, ect. from all over the world. Currently the majority of these photos occupy 10 of 18 Banker's Boxes (archived and preserved). The ones that are really interesting (200 plus) have been framed and displayed through out my grandparents house in Connecticut. At one time my grandmother made gifts (4 to 16 page handmade books) out of the bird photos and gave them to family and friends. According to a family member, one of these gifts appeared at an estate sale. Along with the collection of pictures are hundreds of journals my grandmother made to document their ventures and their life together. Through out the pages are intricate water colors, oils and pencil sketches done by my grandmother. Other pages have very detailed notes of their ventures along with tipped-in photos my grandfather took. Some of the photos of birds have annotations that describe ideas and after thoughts. Going through all this incredible history of my grandparents, I only scratched the surface during my short visit for their funeral. I do recall reading a sort of production note (along with various hand drawn diagrams) through out these journals. My grandfather created, what he called a portable "neutral background". Essentially it was a canvas screen about five feet wide and six feet high. Similar to the size of a shower curtain. He then made a hole three-quarters of the way up from the bottom and in the middle where my grandmother could comfortably insert her arm. As she held various birds from behind the screen my grandfather took pictures. He went on to explain that it was an effective approach to have a human hand hold the bird. The bird seemed to be calm and agreeable with the warmth and touch of my grandmother's touch. The two of them experimented endlessly with different approaches and the results are pretty amazing. My grandfather kept every photo, even the few mistakes.

Needless to say when I saw for the first time Victor Schrager's works I was struck (freaked out) by the uncanny singular similarity. Personally I feel his piece, although would look very nice in ones apartment, pales by comparison not only in execution but also originality. Could he have come across one of my grandmothers bird gifts or some how be exposed to their photos? My grandparents had no aspirations to show their work in any museum, let alone inject it into the public consciousness and slap on a copy right. Their art was a very personal venture, and I'm sure my grandfather would be flattered to know that someone made a pricey coffee table book out of his idea.
jh
01.10.05 at 01:05

Even though I think I have scolding out of my system, I have one bit of schoolmarmishness left. (Apologies to schoolmarms or if anyone sees the term as sexist or anti-education.) I suspect that most people reading this do not need me to provide a lexicon but these discussions tend toward clumsy imprecision in an often-explosive atmosphere so maybe this will help a bit:

[perhaps-unneeded definitions]
Copyright violation is a legal determination. I won't recount rules here but I can say that most of us would not be satisfied if avoidance of copyright infringement were the only standard anyone cared about.

Plagiarism is very much unlike copyright infringement. It is pretending that another's work is one's own. The act of plagiarism is not in the copying but in the lie. If I published the complete works of Shakespeare but identified myself as the author that would be perfectly legal and would not be a copyright violation since no copyright exists but it would be plagiarism. If you published this email without my permission but including attribution to me it (probably) would be a copyright infringement but would not be plagiarism.
[/perhaps-unneeded definitions]

It is worth noting that the definitions of what constitutes plagiarism (i.e., the level of disclosure need to escape the charge) are fairly local, depending on a particular group's ethical code and, to some extent, on context or circumstance. Practices that would not be considered to be plagiarism in a speech might be in a journalistic article. Practices that would not be plagiarism in a journalistic article might be considered plagiarism in academic writing.

There is a stronger tradition of discouragement of close modeling of writing than there is of close modeling of imagery. It is also just plain easier (for several reasons) to say "this structure and these words match" than it is to say something similar about images or a pieces of graphic design.

There are also competing ethics in design and commercial or applied arts. Originality is lionized (in some ways more than in the Art world) but so is effective communication. The realm of effective communication is that of common parlance and sometimes that of cliché. This can make true originality a problem. I wonder if anyone has comment on this tension.

Paula Scher's famous Swatch posters are neither copyright infringement (since she paid Mercedes Matter for the use) nor plagiarism (since she credited Herbert Matter on her posters.) The use of the Herbert Matter forms and the "Matter + Scher" attribution were obviously meant to be humorous. The Swatch posters may contain a similar problem to making a joke: If someone with no sense of humor hears the joke and thinks it is factual, have you told a lie? The question of one's responsibility for one's audience's perception (or lack thereof) is interesting. I'm curious if anyone has thoughts on that.

There may be some other negative description one would want to make of her posters that is not plagiarism or copyright infringement but still revolves around copying. Depending on what degree one values originality above all else, it would be possible to make a case of insufficient added value. I am a big fan of Paula's work in general but not particularly of the "retro" stuff that made her famous. I would not dismiss any of it as merely parasitic; I would, however, respect that as a not-completely-unreasonable criticism of retro design in general.

The question of parasitism may be at the core of Bill's comment about knowingness. It was an interesting point and I'm sorry if it has tended to get lost in the more dramatic parts of the discussion. Would Bill or anyone like to comment on the ethical or value-creating aspects of "creating art without knowing what had come before or would come after" or with knowing? How does that effect design or image-creation as larger contributions? Does the question smack of elitism, of a different set of ethical standards for the "in crowd" than for the masses, or does it acknowledge some reality about who forms culture and how?
Gunnar Swanson
01.10.05 at 01:07

They are not the same picture. Period. The backgrounds are so different that they change the potential meanings. The similarity of the foregrounds allows for the interesting juxtaposition. However, even if the photo at left were derivative of the one on the right, it's still a different picture. It is greatly simplified with an essentially empty background. It's a different picture.

As a photographer of public spaces I personally take hundreds of pictures that 'feel' like someone must have taken them before, and I have seen pictures that I swore I took, but didn't.

I take pictures of brand name litter. I have taken many many pictures of road kill coke cans. I find it interesting how the brand remains identifiable on even the most mutilated specimens. My study of litter is more broad than coke, but it has understandably been a specific fixation as well.

Last fall I was introduced to another photographer, who it turns out has done an extensive study of coke cans, although he did not shoot much other trash.

My coke can photos and his are pretty indistinguishable, although his outnumber mine about 300 to 75. Since Coke is a world wide brand we had to speculate that there may be dozens of people taking the same pictures.

Here's a different story. In 1993 my creative partner suggested we make a virtual bubble wrap computer "game". We quickly included the first version as part of an interactive promotion we distributed on diskette, and in 1995 launched it on the web, where it was a popular stop on the early infohiway.

Today there are a half dozen versions of virtual bubble wrap online, with even a few claiming to be the first. Whatever. The idea was inevitable, and other people were bound to have it.

Welcome to the 21st century. Stop worrying about being original; few will be so lucky. Just do good work and work in good faith.
Kevin Steele
01.10.05 at 11:57

I don't know what "harsh abuse" Mr. Drenttel is referring to that leaves him feeling so aggrieved. Perhaps it is the dose of his own medicine that he received from the few bold enough to call him on his rules of engagement. Generally, I think this group has commented with much thoughtfulness and restraint, sticking to the "larger issues" and granting him a lot of latitude regarding his questionable methods. I, however, have a difficult time adhering to such commendable behavior. I'm made of much pettier stuff.

His sniff posts have read as much as provocations to "critical debate" as elitist, ad hominem potshots aimed at the rank and file, and not worthy of his gifts. It's all too easy to forget that he held up two innocent people for public scrutiny and intellectual sport even if it was in the service of something as important as a collective meditation on aesthetics.

I won't quarrel with the fact that their work exists in the public domain and is therefore fair game. But what of fair play? In Mr. Drenttel's estimation, this apparently entails sending Ms. Potts and Ms. Bronstein an e-mail at the same time as his post makes a stern, even cruel example of them -- and which presumably did not give them sufficient time to construct a rebuttal as he gave himself to pen his own lengthy, lawyer-vetted jeremiad. Fair play apparently means inviting them to attend their own roast and then dismissing them for the shallowness of their arguments.

Yes, this discussion is about art plagiarism, but we're also players in someone's selfish, pedagogic exercise with a not-so subtle subtext running through it of high vs. low art. Is it really originality that's at stake here? Or one man's need to assert supremacy of form, and ultimately, of self?
p.
01.10.05 at 02:13

When I first saw the STEP cover I was upset, due to my long familiarity with — and enthusiasm for — the work of Victor Schrager. Plainly, there was some similarity in the imagery. I sincerely believed it crossed some line: if not a legal line then a creative one worth discussing.

The similarities — in both inspiration and form — have since been denied by Marcie Jan Bronstein, and my own initial views have not been substantiated by many unbiased viewers to this post. Upon sober reflection, I now realize that my initial posting may have been too harsh to suggest that the images of Marcie Jan Bronstein were not "original," and I apologize to Ms. Bronstein, STEP magazine and its editor, Emily Potts, and to our readers here on Design Observer.

My goal of a critical discussion was been successful on one front: revealing the weakness of my own response, argument and thinking. With my sincere apologies on the record, I thank everyone for their participation.
William Drenttel
01.10.05 at 04:01

Bill—Although I hope that chapter 1 of this might end there for all involved, I hope this discussion can go on to be less about this specific case and more about the subject you started to lay out (and, I hope, my most recent post contributes toward.) Anyone care to tackle any of the questions beyond the ornithological photographs?
Gunnar Swanson
01.10.05 at 04:37

I haven't read this entire dialogue, but I just wanted to say, being an avid birdwatcher, that you see photos like this all the time. It's just the way you hold a bird in your hand.

Maybe I would be concerned if the bird on the Step cover was also a Kentucky Warbler.
Drew Heffron
01.10.05 at 05:17

Bill:

The tone on Design Observer has had a tendency to bristle me with its dialogue too often shuffling around absolutism. Its history marred by 'corrections' where significant content has been removed after publication and exchanges between participants has been eliminated. This was a fine privilege for its editors and a confusing disservice to your readership.

Elsewhere, we have exchanged differences (at times rather sophomorically,) so it is now with some bewilderment that I find myself in the position of commending you for not dismantling this post and supporting its detractors. I have no idea how far your apology will go towards those directly involved but I am surprised and rewarded by your candor.
E. Tage Larsen
01.10.05 at 06:51

Dear Eric:

For the record: I can't deny or confirm Design Observer's bristle-provoking absolutism, but to my knowledge only one article on our site was taken down after publication, and the commenters on it were informed why it was done at the time. That was back in the early days. In addition, a handful of comments have been edited or deleted according the policy stated below; this number is surprisingly low, actually, a tribute to the thoughtfulness of the people who post here.

Like a lot of people working in this medium where so few conventions exist, we've been learning as we go along, sometimes painfully, in public. Letting mistakes stand and be scrutinized seems like part of the learning process.

I am, after all, the person that wrote a long article months ago incorrectly attributing Aaron Ruell's title design for Napoleon Dynamite to Pablo Ferro. It took two dozen comments before the truth came out.
Michael Bierut
01.10.05 at 10:43

I hate to just be promoting our site, but I really think my post on Be A Design Group a couple of months ago is very pertinent to this discussion. It is another example of this gray area of appropriation that we are discussing here. I had found two different design magazines, Print and GD USA, that used enlarged color separations of the Mona Lisa for an illustration.

This is off the subject, but I am curious as to why STEP uses so much stock photography on their covers. Is it tight deadlines or does it have to do more with advertising? Does STEP get paid to use stock photos on their covers? If they do, it takes them down a notch in my book. That doesn't mean that they don't have some of the best content as far as design goes. I will keep reading either way. I would prefer they sell out a little bit than go out of business like my all time favorite, Critique.
Bennett Holzworth
01.11.05 at 02:52

Michael,

Bill and I continued this privately. In addition to the abridged article, there were other instances: one case involved a heated discussion, between two notable designers, which was removed without fanfare.

Or, from my exchange earlier today, "That may seem a distant past but that perception spans your first six months, which isn't really that long ago, and seemed to define an unfortunate privilege."

I prefer instead to embrace the positive in what I've found in this thread: much courageous writing, and for me a chance to rethink a no longer tenable bias.

I hope that you and everyone on Design Observer will have a wonderful and thoughtful new year.


Warm regards,

Eric
E. Tage Larsen
01.11.05 at 11:04

While not agreeing with Mr. Drentel's premise or initial inference, I do appreciate the dialog. It's a valid issue without clear cut answers. I have subscribed to some of the same feelings as Eric about certain Design Observer threads, but here have found some unexpected positives.

I remember being struck by seeing a quote from Voltaire scrawled on a Brazilian bus station wall "I disapprove of what you say, but I will defend to the death your right to say it."

I am grateful that this forum is (in great measure) filled with people unafraid to state their honest opinion, support it, and look for an educated rebuttal. I also appreciate the willingness of posters (and in this particular case Mr. Drentel) to honestly take into consideration the opinions and arguments of others to gain perspective.

J
Jason Sherwood
01.12.05 at 05:32

William,

I just want to say that I appreciate the thoughtfulness and sincerity of your retraction. In this act of accountability I think you have elevated our expectations of what a blog can be.

You're a class act.
Christopher Simmons
01.12.05 at 06:42

jh's appearence on this thread makes plodding through it worthwhile.

i would love to view some of your grandparents images as im sure others would.

it illustrates the fact that real first hand human creativity, rarely gets published or exhibited. "art" is not made with any intention, especially not with the intention of making art.

thanks jh.
henrik drescher
01.12.05 at 08:30

The bird in hand image immediately evoked a memory I had from childhood. And as amazing as both these photos are, I have a sappy fondness for this one from Snow White.
James Kim
01.13.05 at 12:59

Brad Holland has an insightful interview on the illustrators partnership sight with a female baby photographer that gets more to the heart of whats really happening with plaguerism in out industry.

I was more interested in why a good design publication like STEP touting fresh new talent would use bland stock photography.
felix sockwell
01.26.05 at 06:03

> When I first saw the STEP cover I was upset, due to my long familiarity with — and enthusiasm for — the work of Victor Schrager.

This seems to say it all. There was an investment (cash, time, ego, reputation) in Scharager's work, and you you were upset that your investment might be compromised. Your mentioning the fact that a print of the photograph was hanging in your living room set the tone for the rest of your argument. After showing off your Schrager to friends and colleagues at dinner parties, were you concerned by the fact that this image was not unquestionably unique?

If you were really looking for an enlightened discussion, you should have wondered about the influence (plagarism? I don't think so) of Snow White on Schrager. You would have researched the history of birding and photographs in that field. You certainly would have wondered aloud about Schrager's integrity in the same way that you did about Marcie Jan Bronstein.

In the end, your posting and concern was personal, despite any claims to the contrary.
Inka Dinka
01.29.05 at 11:01

I think STEP's use of stock photography is mostly a matter of synergy. Not that there's anything wrong with that.
Passive Observer
01.30.05 at 12:56

A little off topic, but interesting: Alice Twemlow, a Step writer, discovered a discussion of this same cover image (and her introduction to the issue) going on in an entirely different arena, the world of serious birdwatchers.

Obviously, our discussion would seem as arcane to them as theirs does to us, or at least me.
Michael Bierut
02.22.05 at 06:13


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ABOUT THE AUTHOR

William Drenttel is a designer and publisher, and editorial director of Design Observer. He is a partner at Winterhouse, a design consultancy focused on social change, online media and educational institutions, and a senior faculty fellow at the Yale School of Management.
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DESIGN OBSERVER JOBS









BOOKS BY William Drenttel

Looking Closer 5
Allworth Press, 2006

Looking Closer 4
Allworth Press, 2002

Looking Closer 2
Allworth Press, 1997

Looking Closer 1
Allworth Press, 1994

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