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…”