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Recreating copyrighted photos
Posted: Sun Nov 18, 2012 6:59 pm
Hi im new here, my daughter is a photographer and always tries to creat original work, one of her photo's ( which we believe to be totally original as have not seen anything close to it after numerous searches) has been almost replicated by another local photographer, this is not the first time this other photographer has done this to my daughter and fellow photographers in the area, she has sent a letter of cease and desist but so far that has been ignored and instead this other photographer is just making sarcastic comments on her FB page towards my daughter, what should we do next, we can not afford a lawyer, my daughter is not after any compensation she just wants to protect her work from this other person? Any advice would be great
Posted: Sun Nov 18, 2012 11:54 pm
It's important to distinguish between copying in the sense of the law of copyright, and imitation. Up until recently, I would have said that your daughter would only have grounds for claiming infringement if the other photographer had actually lifted her image and claimed it as his own work, that is to say complete facsimile copying. It has long been settled law that two people standing side by side taking a picture of the same view, (say for instance of St Paul's Cathedral) both own copyright in their respective images, despite the fact that a third person could not tell the two images apart. A similar situation arises where one photographer's work becomes the inspiration for another's work. In the academic world this is called plagiarism, but it is not actually illegal, just exceptionally annoying for the original photographer.
The reason I say 'up until recently' is because earlier this year we had a controversial court case in which one photographer was found to have infringed the copyright of another by copying the idea, rather than the actual image. In fact the two images showed significant differences, but the judge felt that there was compelling evidence that the second photographer had deliberately set out to copy and had not arrived at his image in an independent way. You can read about the case here
Unfortunately for your daughter, that case does not set a precedent which is binding on the higher courts, and it is unlikely that she would be able to prove the same degree of deliberate copying. If your daughter's letter has been ignored, I fear there is very little else she can do. It is certainly not worth the expense of involving a lawyer or threatening to take legal action just to get the image removed.