Indigo, normally a photographer who photographs something previously 
photographed by another photographer, even if from the same vantage point, same angle, 
etc., is not violating the first photographer's copyright.  It's only in 
reproducing the original photograph without permission (think photographically or 
photomechanically copying, digitizing, etc.) that copyright is violated--as 
opposed to re-creating (or trying to re-create) the original photograph.  How 
many photographers have stood in the same places Ansel Adams stood to photograph 
in Yosemite?  I don't know of any cases in which anyone was accused of 
copyright violation by taking a photograph of the same scene that someone else 
photographed, and I don't think that's usually an issue.  Of course, two 
photographs of the same scene by two different photographers might very well look as if 
one of them copied the other's photograph, but a close inspection would 
usually reveal differences between the two.  And two paintings of the same scene by 
different painters?  They're very unlikely to look identical.  Only if a 
painter deliberately tried to copy someone else's painting, brushstroke for 
brushstroke, might there be a violation of copyright.  One might say that it's the 
pictorial idea that's being copied in these cases, and you can't copyright an 
idea: you copyright the concrete expression of your idea--the photographed or 
painted product.
 
That said, there's some bad case law out there.  If my understanding of the 
case is correct, the photographer Philippe Halsman's widow sued a photographer 
who used Halsman's idea for his photograph "Dali Atomicus," which involved 
Salvador Dali, buckets of water, chairs, and cats all in mid-air at the same 
time.  It reportedly took Halsman over 80 takes to get it right--as you can well 
imagine.  The photographer who tried to re-create this composition lost the 
case against Mrs. Halsman, and clearly the judge was wrong, wrong, wrong in 
deciding in Mrs. Halsman's favor.  This photographer was copying Halsman's idea, 
not reproducing Halsman's photograph.  Although I never saw the offending 
photograph, it couldn't possibly look identical to Halsman's.  For one thing, he 
didn't have Dali to work with.
 
Photographers have sued, sometimes successfully, sometimes not, artists who 
quoted, appropriated, or otherwise copied their work into another artwork.  
Reproducing work in a "parody" is considered OK--the more famous and iconic the 
original work, the better--but this ploy doesn't always work.  Judges' 
decisions have been wildly inconsistent, if not erratic.  Copyright is complicated, 
and application of the law can be downright messy.  And of course, as in many 
other areas of law, copyright infringement lawsuits are brought not to get 
courtroom vindication, but to intimidate the defendant into settling out of court 
in order to avoid grief and huge legal fees.  Nevertheless, I think the 
copyright principle is logical and reasonable: people who are trying to make a living 
as creative artists deserve protection against pirates who want to rip them 
off.
 
David Haberstich
 
 



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