It is one thing for my photographs to inspire other photographers to attempt their own miniatures work in the same genre. It is quite another when a commercial brand employs a creative agency to go out on the Internet, find images, and then closely replicate the composition of those photographs but with their own commercial products included.
At this point in my career I shouldn’t be surprised to find people and companies of all kind stealing from me and otherwise exploiting my work. This behavior is rampant and constant. But it somehow doesn’t ever feel less violating. Occasionally I’m truly astonished at how blatant and shameless certain infringements can be. That was definitely true in the case of an amateur photographer in Italy named Tony Polinni who several years back closely replicated a bunch of my photographs and then had the audacity to sell them for syndication, including to Daily Mail UK, representing them as wholly his idea. The creepiest part of that situation was in the accompanying interview about his “work” all his answers were things I had posted on my website.
The Daily Mail took down the story with a quickness and apologized profusely. I had to remind them that they had previously published – years before – some of the very images this guy was replicating. Polinni at first tried to claim that he was innocent and that my work merely “inspired” his. But when I secured counsel in Italy, who sent him a cease and desist, he quickly backed down and decided he was better off exploring other avenues in photography.
In a more recent case of astonishment, the marketing geniuses at POPS, a boozy popsicle company in the UK, seemed to think this was a good idea to engage a photo agency to go out on the Internet to find images for “inspiration” for a social media campaign. By inspiration I mean find the work of others and closely replicate it, closely matching the composition.
They never approached me to ask for permission to license my work or to hire me to shoot images for them. Nor did they give me (or other photographers whose copyrighted they also presumably infringed) credit or try to make a case that what they were doing was an homage. They ignored the fact that it has taken me decades to hone my craft and thousands of hours of labor to establish my studio and my own brand. They selfishly thought that they could just use my compositions as a source to shamelessly copy.
What’s much more astonishing is that the agency that POPS employed to undertake these infringements – which apparently was The Clerkenwell Brothers – went along with it. They evidently thought it would be a good idea to closely replicate the work of others and then bill their clients for this service. Besides this act being unethical, not to mention illegal, it was also creatively lazy to a startling degree. They seem to work for a number of well known retail brands in the UK – including grocers TESCO and Whole Foods. I honestly wonder if those companies would invite the kind of liability this recklessness might bring upon their companies if this agency chose to do the same in their campaigns for them. Despite standard clauses in their contracts that indemnify them from liability, they probably still could be held responsible for the actions of their contractors.
Someone who apparently works for the Clerkenwell Brothers had been following my studio’s Instagram page until recently when we blocked them. How foolish I was to think they were following my work because they found it fun and interesting when they were apparently just there to enrich themselves with the product of my labor. The Clerkenwell Brothers were copied on my recent e-mail exchange with the POPS UK marketing department but to date they haven’t had the courage to reach out to me with comment. In the meantime, the team at POPS seems to think that an insincere apology and a “we didn’t know this crossed the line” ought to be enough to assuage my anger over this violation and the amount of my time this situation has wasted.
My studio submitted DMCA takedown requests to Instagram, Facebook and Twitter in response to these infringements. And when POPS got word that some of the posts were coming down they quickly pulled the remainder. While removing infringements when caught is a good start, it still seems a bit inadequate to me in the way of taking responsibility. It’s like getting pulled over and saying “Well officer, as soon as I saw your lights I stopped speeding and pulled over. So everything is OK now, right?.” Well, no. In that scenario you still broke the law and might have to pay a fine. But all too often I hear from infringers who seem to expect that taking down an infringement and saying sorry should be enough. I maintain that not infringing in the first place – and generating with your own ideas - is far better than exploiting someone else’s. Copyright is a strict liability offense. You either did it or you didn’t. It generally does not matter to the court whether or not you meant it or if you stopped infringing when caught. In the meantime, yes folks, finding someone’s work on the Internet and closely copying it is indeed copyright infringement.
UPDATE: In follow-up conversations with POPS and the commercial photography agency that handled the social media campaign in question, The Clerkenwell Brothers, we were able to come to an understanding to settle this matter amicably. In several exchanges with Nick Horowitz at the Clerkenwell Brothers, he apologized for the trouble this situation caused for me and explained that this behavior was not indicative of his company’s values or the way they usually do business. With the infringements swiftly removed and the company contrite and pivoting to a different tack for promoting POPS’ products, I was satisfied that they had taken sufficient responsibility and decided it was best to move on from this matter and to consider it resolved.