Is There A Difference Between Inspiration And Copying?

Is There A Difference Between Inspiration And Copying?(Copyright)

by Mike Masnick from the I-think-so,-but... dept on Friday, July 22nd, 2011 @ 7:39PM

We were just talking about the extremely fuzzy border between idea and expression, and how that leads to problems and the stifling of creativity. Well, how about a similar discussion between "inspiration" and copying? We hear this all the time. Whenever we show widely accepted pieces of art that are actually quite similar to something earlier, defenders of copyright insist that this is fine, because it was just "inspired" by the original, rather than a direct copy. But where's the border between inspiration and copying? 

Take this case, which was first called to our attention by Stephan Kinsella, in which photographer Janine Gordon sued photographer Ryan McGinley claiming that 150 of McGinley's images were "substantially based" on her own photos. The site PetaPixel (linked above) has posted some of the "evidence," which should immediately make it clear how ridiculous this lawsuit is:

Honestly, it's difficult for me to even say that McGinley's are "inspired" by Gordon's, let alone copies. Yes, some of them cover similar subject matter, but is Gordon seriously claiming that only she has the right to show "a couple kissing passionately" if the "girl on the right has long silky straight brown hair and her eyes are closed"? Separately, in that one, she highlights that the girl has high cheekbones, but I don't quite see how the high cheekbones are part of Gordon's copyright at all. And the one of the guys jumping? She's really claiming a copyright on the fact that arms are curving, and the legs are in a v shape? I don't know if Gordon has looked at people's legs in a while, but they're all pretty much "in a v-shape" quite a lot. Gordon is apparently seeking $30,000 per infringement, which is the maximum statutory rate... though, to be honest, I'm surprised she isn't going for the full $150,000 by claiming these are "willful" infringement. Either way, it's yet another example of how the state of "ownership culture" today leads people to think that they can lock up ideas, and anyone who does anything even remotely (perhaps very, very remotely) similar, somehow must owe them money. It's a sad statement on the state of culture today.

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