Is it really a new work if all you do is apply different processing?

bilzmale

Super Moderator Emeritus
Jul 17, 2010
124
Perth, Western Australia
Bill Shinnick
In the modern music world 'sampling' of another artist's work has become commonplace. The difference is only a snippet is used and is usually taken as an homage. It is also long established in jazz to quote a highly recognisable musical passage or theme in an original composition. When the whole work seems to be substantionally copied there have been plenty of law suits instigated. So it seems the intent of the second artist is highly relevant here. With the photo to artwork example I'm not sure but I suspect it is a step too far.
 
Jan 31, 2011
164
Newcastle, Australia
Sue
Looks like thievery to me. Thomas stepped over the line when he failed to acknowledge the source, instead claiming it all as his own. He didnt shoot the original, he stole it. He a) should have asked and b) should have said who took the photo.
 

Lawrence A.

Hall of Famer
Nov 8, 2012
124
New Mexico
Larry
In the modern music world 'sampling' of another artist's work has become commonplace. The difference is only a snippet is used and is usually taken as an homage. It is also long established in jazz to quote a highly recognisable musical passage or theme in an original composition. When the whole work seems to be substantionally copied there have been plenty of law suits instigated. So it seems the intent of the second artist is highly relevant here. With the photo to artwork example I'm not sure but I suspect it is a step too far.
Yes, composers have long quoted other's music as a tribute or, as with Bartok's quotation from Shostakovich's 7th Symphony in Concerto for Orchestra, to mock it. But they were quotes, easily identifiable as such and as points of reference. If someone lifted an entire movement and put it in another key with different instrumentation, it still wouldn't be his. Thank's. I like the musical analogy.
 

Les Klein

Veteran
Dec 10, 2015
104
Montreal area
It is theft because the originator was not identified. At best, the artist should have obtained the photographers permission or acknowledgement before public display. Next best would have been to acknowledge the photographer publicly when the art was displayed. Merely claiming originality is theft/plagiarism.
 

Luke

Super Moderator
Nov 11, 2011
214
Milwaukee, WI USA
Luke
I'm not so clear-cut about it. He definitely stole from the original photographer, but he also created a new artwork using part of the original photograph.

It's clearly not the same art....and it even makes a different statement. But the second one can not have been created without the first. I'd be fine with someone using aspects of one of my photos in their own art, but I'd want credit and compensation.

So it's not straight-up plagiarism (in my eyes....that would just be regurgitating the whole thing verbatim). He has created something new, but his "ingredients" are so identifiable that there needs to be some acknowledgment.

It would be like opening a hamburger stand across the street from a McDonald's and selling their exact hamburger and toppings on a new bun and claiming that it is not a McDonald's hamburger.
 

Jock Elliott

Hall of Famer
Jan 3, 2012
124
Troy, NY
I'm not so clear-cut about it. He definitely stole from the original photographer, but he also created a new artwork using part of the original photograph.

It's clearly not the same art....and it even makes a different statement. But the second one can not have been created without the first. I'd be fine with someone using aspects of one of my photos in their own art, but I'd want credit and compensation.

So it's not straight-up plagiarism (in my eyes....that would just be regurgitating the whole thing verbatim). He has created something new, but his "ingredients" are so identifiable that there needs to be some acknowledgment.

It would be like opening a hamburger stand across the street from a McDonald's and selling their exact hamburger and toppings on a new bun and claiming that it is not a McDonald's hamburger.
I disagree; it would be like buying a McDonald's hamburger, scraping off the topping, adding a few toppings of your own, and then claiming that you cooked it.

It's naked theft with a side order of creativity.

(As a writer who has had my intellectual property "misappropriated" a time or two, I'm very sensitive to these issues.)

Cheers, Jock
 

BrianS

Super Moderator
Apr 3, 2013
124
Pure and simple theft. The thief could have staged a photograph to have the "look and feel" of the original- that would have been debatable. The thief used the original photograph, and for the look of it: This thief might as well put it on a Xerox Machine set to "lighten" and claimed it was his original work.
 

Lawrence A.

Hall of Famer
Nov 8, 2012
124
New Mexico
Larry
He just put the original into black and white and employed a contrast mask over everything except the kids. That's changing the photo processing, not re-creating. If photographers in the digital age are going to have any kind of rights to their work this has to be viewed as a clear-cut case of copyright infringement. It's not just a reference to the original work. It IS the original work with a few tweaks. I'm with those who consider it outright theft. If you steal my gold watch and paint it grey, you've still filched my gold watch.
 
Feb 6, 2015
124
Central Ohio, USA
Andrew
The problem with this is that when stuff like this goes to court, there is never a cut and dry answer to what is considered "substantially changed". It is left to the court to decide that, and it is a subjective thing.

Then we have to consider actual work versus intellectual property. If you go out and get the same location, angle, number of people, even having them wear the same or similar clothing and shoot it yourself... Plagiarism, homage, original work? Nowadays, even that is argued.

Unless we can come up with a standard of what an art piece bring original is... This topic will always be argued.

Then we have to determine if it even should?
 

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