I have no verification of whether that's true, but if it is, it was a stupid thing to do. If there is a paper trail showing they desired to copy that work, and they can't claim coincidence. Furthermore, it begins to cross the line from simple plagiarism to actual copyright violation.
(You can take a look at the two covers in comparison on the author's blog here. UPDATE: it appears that Harper Collins has agreed to change the cover without legal action involved.)
The difference between plagiarism and copyright violation.
There is a difference. It's important. And a lot of people are confused about it these days, so I wanted to address that. (NOTE: I am not a lawyer. This should not be considered legal advice. I'm just going to give you a general overview of the principles involved with some examples.)
You can't copyright ideas.
Copyright is supposed to protect the specific expression of ideas, not the idea itself. (Note that you can patent ideas, but that's a whole different discussion.) So:
Plagiarism is taking ideas and claiming them as your own. While there are lots of legal ins and outs, plagiarism is, in its purest form, not illegal. It's unethical and will get you fired from a job, or disgraced in public, and potentially sued and all sorts of things like that.
Copyright violation is the actual copying/theft of Intellectual Property covered by copyright. For ease of typing, I'm going to call this "IP Theft."
So, if you can't copyright ideas, only expression of ideas: Plagiarism is about the ideas, and IP theft is about the expression. They often overlap, but one can exist without the other.
For instance:
- A book pirate doesn't claim to have written the book he distributes, so he isn't committing plagiarism -- he's committing IP theft.
- A college professor builds a theory on the ideas of his graduate assistants, and doesn't credit them, but he doesn't use their words or specific expression, so he's not committing IP theft -- he's a plagiarist.
- A blogger takes material from other blogs and posts it on her own blog, without crediting the original authors -- she's a plagiarist AND an IP thief.
The first is illegal, the second is unethical, the third is both.
But in the area of the arts, it gets more complicated. There are huge sociological issues involved (as an old musicologist once said "Plagiarism is basic to all culture"). We build our culture and art on the previous generation, art is commentary on what went before, etc. I'm not going into that other than acknowledge that the issue exists.
The question I want to get into, though, is whether Harper Collins -- if they did what was alleged -- committed plagiarism or actually crossed the line into IP theft.
Once upon a time, what they did would not be considered IP Theft. If you look at the two covers, they did not physically duplicate the original cover. They built it out of photographs of their own: It's a different woman, a different dress, a different bird, a different landscape, a different font.
They did what Microsoft did when they first created MS-DOS back in the eighties. Microsoft had created PC-DOS under contract for IBM. IBM owned it. But Microsoft redeveloped MS-DOS using "clean" processes -- programmers who weren't involved in the original development, and with no knowledge of the code involved. They were given the specifications and told to re-program the exact same thing from scratch. As long as they weren't actually copying, but just "putting it in their own words" so to speak, they had some legal cover.
You could say they were plagiarizing, but not violating IP laws.
However, since that time, there have been a lot of "look and feel" court cases -- some won, some lost -- and so just doing it from scratch on your own isn't good enough these days.
One good example is that famous "Hope" poster of Obama. The artist used a press photograph of Obama as a model for the painting. He painted that image himself, from scratch. He did not duplicate the photograph and run it through Photoshop -- he drew it. And it's clearly an illustration, not a photograph. It is, if anything, more different from that original photograph than this Harper Collins cover is from the original cover.
However, in composition, it is identical. He may have done the work himself, but he copied the photograph. And as the case progressed, there was a great deal of discussion as to what constituted the photographer's "expression of ideas" -- and one point was that the composition was the essence of that photograph. The artist tried to get out of it by claiming to have drawn the picture from another photograph taken by the same artist -- one where the composition involved several people -- but that was found to be a false claim.
In the end, I don't think this got to a court ruling. I think the artist settled the case.
Now, Harper Collins could claim that the similarity is a coincidence. With millions of artists striving to get a similar effect, there are bound to be some amazing coincidences in expression. It happens all the time. Except....
If the original artist does indeed have evidence that Harper Collins did indeed attempt to buy the design, then that's proof that the copy was indeed intentional.
And then the question goes back to whether they copied an idea or the expression of the artist. Usually the result of such "gray area" cases depends on who has the best lawyers. However, some really great lawyers have been fighting on the other side in this one -- such as Disney's attempts to broaden its hold on its own intellectual property. The precedent may be set, and may make it harder for Harper Collins to run over the artist on this one.
(Although, frankly, I wouldn't count on it.)
But as I said earlier, I am not a lawyer. Usually these things sort themselves out with a settlement with a non-disclosure agreement -- so we may not even know how it shakes out.
See you in the funny papers.
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