A Tale of Two Magazine Covers

A Tale of Two Magazine Covers

Boston Magazine’s May 2013 cover image by photographer Mitchell Feinberg depicted running shoes from Boston marathoners shaped into a heart. It was a fitting, smartly conceived statement to a city recuperating from the terror of the finish line marathon bomb attacks. To promote the upcoming Bath Half Marathon 2014, Bath Magazine in the UK printed a cover image almost identical to the Boston edition, sparking an internet controversy.

The Boston cover was reproduced in poster form with all proceeds, around $125,000,  benefitting the One Fund, a non-profit dedicated to supporting families affected by the tragedy. The Bath Magazine cover caught fire when it was tweeted earlier today and the attention did not go unnoticed by Boston Magazine. Carly Carioli posting on the magazine's web site issued the following press release asking that the Bath Magazine follow the original cover's altruistic inspirations with a donation to the One Fund. Bath Magazine issued a public apology on their twitter account earlier today which has seemed to do little to mitigate the anger from Bostonians posting on twitter.

Increasingly in the digital age, creatives walk a delicate balance between drawing inspiration from a visual source in the creation of a new work and outright theft of the source material. We have seen this recently in Shia LaBouef's admission that his film HowardCantour.com was taken from Daniel Clowe's graphic novel Justin M. Damiano. Without any credit to Clowe's work, LaBouef is soon to be sued for copyright infringement, based on postings and images appearing in his twitter feed.

Last week, the Associated Press announced it would be making moves to prevent George Zimmerman from selling a painting of Florida prosecutor Angela Corey given its close resemblance to a photograph by AP contributing photographer Rick Wilson. Zimmerman, eager to offset legal expenses from his defense against a murder charge for shooting Trayvon Martin, recently sold a painting for $100,000 via eBay. One cannot help but see the AP's move as similar to the legal action that it took against street artist Shephard Fairey over his use of an AP photo of Obama for a "Hope" promo poster. Fairey and the AP eventually came to a settlement out of court.

Ultimately, at issue, is the discrepancy between fair use of an existing visual image and the measurement of how far does an artist or creative have to go in altering source material for it to be considered, legally, as an entirely new piece of work. At issue is the amount of the original work appearing in the new one and the financial effect it exerts on the original copyright holder.

The recent case of fine artist Richard Prince's use of photographer Patrick Cariou's images of rastafarians illustrates how the legal interpretation of fair use is far from absolute. Prince's appropriation of the photographs appeared in the exhibition "Canal Zone" at the Gagosian gallery and generated more than $10 million. The work, which seemed to do little more than paint over Cariou's images, was found to be an illegal infringement by a federal court in 2011. Judge Deborah Batts wrote that Prince's use of the images did not constitute a new use as it failed to "in some way comment on, relate to the historical context of, or critically refer back to the original work." In April of last year, this decision was overturned in a US Appeals court, a move indicating that Prince's work was a "new expression" with a differing aesthetic.

Despite the gray areas in assessing fair use, it is difficult to argue that the Bath Magazine cover is anything short of an outright theft of Boston Magazine's iconic May 2013 cover. While the magazine has admitted its mistake and apologized for causing offense, we'll have to wait and see if the editors accept Ms. Carioli's challenge. As she wrote in today's release, "we hope that if you were so bold as to borrow our idea, you will also borrow the spirit of that cover—and make a significant donation to the One Fund in the name of those who were unable to finish the race."

via BostInno

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11 Comments

IF the Bath Magazine had used the actual Boston image and manipulated in some way, THEN you could call it outright theft. Otherwise, where do you draw the line? Should every recent magazine that put a photograph of a pretty girl on their cover be accused of intellectual property theft by the first ever magazine to put a photo of a girl on the cover? What about other magazines? Should Magazine X that put a photo of a Ferrari on their cover be accused of theft because Magazine Y used a photo of a Porsche shot using a similar angle? Repeat ad infinitum.

Given the circumstances and story behind the Boston magazine cover, I think it was extremely poor taste and judgement by the Bath magazine to recreate it, but I think it's a bit much to call it theft. I think that the Boston's response calling for the charitable donations was an excellent response instead of a "we're going to sue the pants off you" reaction that seems to be the norm these days.

You have a good point Robert. Here's a similar photo published in feb. 2013:

http://www.happyfitmama.com/wod-at-home-2/

Far from identical but it's the same idea.

Hi Stefan - cool find. While the image is quite different, the concept/idea is identical - running shoes arranged in the shape of a heart... and taken months before the Boston bombing. I'm sure if the author of that photo had 150 pairs of running shoes that the image may have been even more similar!

Joseph Gamble's picture

Good points Robert. Had Bath Magazine made mention of Boston Magazine's cover in their captioning, I doubt this would've had such a strong reaction. These shots are virtually identical with the exception of some coloring that was used to try and create a differentiation from the Boston Magazine. Does that go far enough to be something new and different? In my opinion, it does not. But, as you pointed out, it is not the exact image so, technically, it isn't outright theft. In any case, imitation is the sincerest form of flattery.

Jon Winkleman's picture

There was a similar lawsuit in spirit in the late 80's. A car company wanted to license Bette Midler's recording of "Do You Want To Dance" for a Ford car commercial. Midler declines. Ford then hired one of her former backup singers to sound as much like Midler as possible. The eventual recording used in the commercial sounded identical to Midler's identical recording. Midler sued both Ford and the backup singer and prevailed even though Ford had secured the rights to use the song from the copyright holder.

The courts ruled that even though this was a new recording created for the commercial there was a clear intent to create a work that inappropriately copied Midler's original "artistry." In the case of Bath Magazine they essentially recreated the same photo in Boston Mag. Copying not only the original intellectual property of the photographer but also used the same graphic design layout on Bath's cover. The UK has different copyright laws than the US. However in US courts I would bet money that Boston Magazine would win hands down.

On an ethical point that is irrelevant to the actual law, the image was created for charity purposes. Boston Magazine made an offer to "settle" if Bath made a reasonable donation to the One Fund. If Bath does not accept that offer in which every party would look good, it would reveal a strong contempt on Bath's part towards original intellectual property.

Hi Jon - Just going by your description, I would venture that they lost the case more by misrepresentation. i.e. fooling the public into believing that Bette Midler was actually singing the song. If they had the rights to use the song but used someone with a distinctly different sound, there's no way they would have lost.

Jon Winkleman's picture

"IF the Bath Magazine had used the actual Boston image and manipulated in some way, THEN you could call it outright theft. Otherwise, where do you draw the line?"

Actually it is outright theft. The original photograph has two copyrighted components to it. First is that actual exposure captured by the photographer and then printed. Obviously that was not stolen. However the intellectual content of the photo is also copyrighted including the composition, image elements, colors scheme, background and lighting that come together in an original way to create a unique image that did not exist before. As the Bath Magazine photographer copied nearly all of these artistic choices that came together to produce this photo, the intellectual property within the image was indeed outright stolen even if they did not use the actual capture of light in the camera of the Boston Mag photographer..

Hi Jon - I guess this depends on the country you're in. Here in Australia, all works of art are automatically protected by copyright - no registration required. However, you cannot copyright an idea, style, information or techniques. (reference: An Introduction to Copyright in Australia - Australian Copyright Council). So in this instance (if this was Australia), while the Bath image has obviously been "inspired" by the Boston image, it's a unique image in its own right and it would have all the copyright protections applied to it and it would not be violating the Boston copyright.

Again I ask, where do you draw the line? How different does an image need to be and who would be the judge? Referring to the image pointed out by Stefan above, I could argue that the Boston magazine stole the idea from that photographer. Ok, they added a few more pairs of shoes, but the idea is fundamentally the same.

...I dont think this is theft. It's similar... but its a different image. It's poor taste to use such a similar image, but it is, indeed, a *different* image.

Chet Meyerson's picture

Copyright law covers not only theft but derivatives of a work as well. Clearly, this is the case here! If it's unintentional/accidental or perhaps coincidental then a case might be made but when it's a studio shot, that argument holds little water! It's time for Bath Mag to make that huge donation!

Just a quick comment from one who lives in the region.

The Bath Magazine publishing company (and they aren't the only ones) are well known amongst the local artistic community for actively participating in forms of copyright infringement. It's a regular occurrence for complaints amongst local amateur photographers who see their work ripped off of Flickr or Facebook and then published in one of the many magazines in the company's stable.

So, this doesn't surprise me at all... It's perfectly on form for them to be too lazy to come up with their own ideas (as in this case) or contact a photographer and ask to use a photograph.

For those interested in such things I can link you to two very interesting court cases heard by the England & Wales Patent County Court (which is now responsible for hearing copyright infringement cases). I highly recommend English and Welsh photographers make yourselves familiar with these cases as they are very good cases to review. Also, make yourself familiar with this court... It has a fast track system which will make chasing infringement a whole lot easier and cheaper.

This case is for an unauthorised usage of a photograph;

JASON SHELDON - and - DAYBROOK HOUSE PROMOTIONS LIMITED

http://www.bailii.org/ew/cases/EWPCC/2013/26.html

This other one is a case of an idea or photographic concept being appropriated;

TEMPLE ISLAND COLLECTION LIMITED - and - (1) NEW ENGLISH TEAS LIMITED (2) NICHOLAS JOHN HOUGHTON

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWPCC/2011/21.htm...

EDIT: To add a link.