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Copycat or Copyright? When creative license comes too close for comfort.

As posted on by Tracey C. O’Neill

New York – Copycat journalism or copyright infringement? The lines have grown murky and the battle between artistic creation and artistic copyright is getting fierce.

In a world where modern technology, social media and the demand for “get it up, get it out and get it done” real-time journalism are at the fore, the crossover in coverage of local events, issues and politics is great.

Print media, news sites and blogs whether dailies, weeklies or otherwise are constantly vying for a new, fresh angle and are fiercely competitive in the quest to have the first and best coverage of pertinent news stories. When locals are on the same beat, the lines sometimes get murky when determining coincidence, copycat journalism, plagiarism or outright copyright infringement.

“As a freelance photographer who enjoys shooting weddings, I often find myself in the middle of the debate on fair use when it comes to my work and the work of others,” said Paul J. Spetrini, Vice President of the Rhode Island Press Association and a mulit-genre freelance photographer.

 “I want my rights as a photographer protected, and do not want someone simply grabbing one of my photos from the web and claiming it as their own, I do recognize that sometimes as an artist, it is inevitable that you will create a piece of work that was inspired by something you saw or something came in contact with in the past.” ~ Paul J. Spetrini

Line between fair use and infringement no longer clear

Digital media, internet availability and aggregation further muddy the waters. A recent dilution of rights came at the hands of the U.S. District Court for Southern New York, in Cariou v. Prince, et al. where questions of fair use and derivatives took a turn away from sovereignty in original copyright. Spetrini weighed in on the court’s ruling.

“At what point does inspiration from a previous photograph end and your attempt to create an original piece of art begin? To me, that’s what the argument over fair use and copyright infringement comes down to,” said Spetrini.

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The above photos, taken by the author in 2011 were also replicated by this author during several Nor’Easters and again during Hurricane Sandy. The photos appeared online and in print. Several photos of the same depiction also appeared afterwards in competitive local newspapers.

The lines get murkier when local journalists and photographers in small towns cover the same beat. Stories clash, meeting coverage reads eerily similar, quotes and headlines are sometimes too similar and photographers stand side by side snapping the same shots. Instances of copyright infringement become questionable even in blatantly obvious circumstances.

“As the case of artist Richard Prince versus photographer Patrick Cariou shows, however, copyright law with regard to intent and inspiration is murky at best. In my opinion, the balancing act test provided under the fair use exception clearly spells out that the original copyright in this case belonging to Cariou was infringed upon by Prince’s use,” said Spetrini. “Prince’s work was of a commercial nature, as evidenced by the fact that his art was sold for millions of dollars, and Cariou’s photographs constituted the majority of Cariou’s creation.”

Spetrini went on to say that the crux of the case lies in the fact that without Cariou’s photographs and Prince’s pilfering thereof, Prince’s work would not have existed.
“To me, this is more than Prince being “inspired” by Cariou’s work. It is using Cariou’s work with the direct intent of profiting off of it, without compensating the original artist,”said Spetrini. “Because of this, I believe the courts ruled in error and set a dangerous precedent for photographers and other artists across the country.”
Spetrini isn’t alone in his interpretation of the law. Heavy hitters in the arts and photography realm filed a brief AMICI CURIAE in December 2013, with the American Photographic Artists, American Society of Journalists and Authors, American Society of Media Photographers, Graphic Artists Guild, National Press Photographers Association, Picture Archive Council of America, and Professional Photographers of America coming out in support of original copyrights and Cariou.
The Andy Warhol Foundation, in return, filed in favor of Prince alleging that if Cariou prevails in protecting his rights, future artists will suffer stifled creativity.

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