Is Photographic Imitation the Highest Form of Flattery or Just Shady Poaching?

As photographers, we frequently find ourselves shoulder to shoulder with another photographer focusing on the same subject, but what if that subject is the other photographer’s model? Is it ok to stand close enough to take the same or similar shot, or is that cheating, or worse, theft? Just how much photographic imitation is ok? A member of a local photography Facebook group I belong to recently posed this question. A heated discussion inevitably ensued. 

For the shot in question, the discussion began with a story: Photographer A (our story’s narrator) was shooting a sunrise, when he saw Photographer B set up to photograph a back-lit cyclist. Photographer A was intrigued by the silhouette and started shooting. He then realized that Photographer B and the cyclist were working together to achieve the shot, communicating via hand signals. Realizing they were working together, Photographer A told Photographer B that he was “stealing his thunder” and taking the same image. B didn’t ask A to stop or object in any way, so A believed he was in the clear to keep shooting.

Seems fairly straightforward, but as is so often the case on social media, a wide range of opinions followed. Some believed it was Photographer B’s responsibility to tell A to stop. Others said Photographer A should have moved on to create something more original. Some said it would have been ok to shoot the same random cyclist riding by, but since the cyclist was essentially a model, Photographer A was infringing on Photographer B's intellectual property. Some commenters likened it to showing up in a national park to shoot a vista and getting upset that other photographers are there too. Photographer A introduced the discussion by arguing that imitation is the highest form of flattery, but is it so innocuous as that?

Let’s start with the commenter who compared the sunrise cyclist scenario to being angry at other photographers who showed up to shoot the same national park vista. Most photographers have experienced visiting a bucket list photo location and finding an oversaturated scenic lookout. Tripod legs intertwine as photographers stand practically shoulder to shoulder to catch the sun as it rises through Mesa Arch or some equally beautiful, well-known location. Do those photographers have a right to be mad at everyone else who had the same idea that day? Not really. There’s no expectation of exclusivity in a commonly photographed public location or an uncommonly photographed location for that matter. A public location is just that, public. You do what you can to hopefully make your images different from everyone else's via framing, exposure settings, use of filters, or any other tricks you have up your sleeve, but that’s about all you can do. There’s no sense in anger, because from the other photographers’ perspectives, you are the interloper.

Years ago, I visited Oak Alley Plantation in Vacherie, Louisiana and set up my tripod on the front lawn. Enormous, 300-year-old oak trees flanked me, forming a beautiful corridor (or literal alley) leading to the main plantation house. It’s a perspective you’ve likely seen before in tourism brochures, on Instagram, and on Oak Alley’s own website. Armed with a wide-angle lens, I centered my tripod perfectly and waited for the scene to clear just a bit. Lacking a neutral density filter strong enough to blur the midday crowds lit by the full sun, I relied on patience and luck for a clear scene to get the shot I had envisioned. About 40 minutes into my camp-out, the scene finally cleared of the last few stragglers, and I finally had my opportunity. Just as I was about to shoot, a random tourist kneeled right in front of my tripod, exclaiming “wow, you never see it this empty” and took his shot of the same perspective I’d been waiting for. 

Jerk move? Yes. It’s exceedingly obnoxious to step in front of another photographer’s tripod to take your own photo. Infringing on my artistic vision? Not so much. This is a perspective that countless photographers had recorded before me and I’m sure countless photographers have recorded since. Just like at a National Park or scenic overlook, I had no more right to that perspective than any other person with a camera out there, but what about when a photographer has specifically staged a scene for their shot?

Let’s say a photographer has arranged a model, paid or unpaid, and set up a photoshoot. Legally, if that photographer is shooting the model in a public space, that model has no expectation of privacy, so any other photographer or bystander can also take images of the model during the shoot. While the original photographer may have conceived the shoot, set up the posing, wardrobe, makeup, and all of the other components, the model is fair game while on public property. You would have a hard time arguing otherwise in court. 

That said, the question of if it's ok to shoot the scene comes down to one’s intentions and inner moral compass. While you may not be performing an illegal act to photograph someone else’s model, it still might be considered pretty obnoxious to attempt to benefit from another photographer’s hard work and potential financial investment. You could legally take that photo, but without a model release, what can you realistically do with the resulting image? Just because you have the right to click the shutter, does that mean you should?

Once on a photo walk, I saw a well-known photographer take a shot, only to have three people stand right where he just stood and attempt the same shot as soon as he moved on. I roll my eyes and think of it as shot-poaching, but honestly, there’s not much to be done about it, and most of the time, it’s relatively harmless. 

The Facebook group discussion eventually petered out, with most commenters maintaining their original stance, as so often seems to be the case, and with Photographer A feeling justified in their choice to photograph the cyclist. It wasn’t the first time this type of question was posed in this kind of setting, and it almost certainly won't be the last, because ultimately, these scenarios largely come down to one’s own opinion and intentions. Maybe imitation is the highest form of flattery, but it bears mentioning that there’s a little bit more to that commonly cited quote by Oscar Wilde, which serves to suggest that we try a little harder in the direction of originality: “Imitation is the sincerest form of flattery that mediocrity can pay to greatness.” Perhaps instead of standing shoulder to shoulder or mimicking a recently vacated perspective, we should all endeavor to find something a bit more original that we can call our own.

What do you think? Have you experienced another photographer poaching your scene? Are you a shot poacher? Sound off in the comments!

Lead image by See-ming Lee (SML), used under Creative Commons.