It’s been quite a run for self-taught, Philadelphia-based photographer Zoe Strauss, who went from selling her work for $5 per print under I-95 to being the toast of the town, which I’m pretty sure is defined in the local edition of Webster’s as “someone for whom Roots drummer ?uestlove will show up and DJ.” The New York Times has had plenty of nice things to say about her Philadelphia Museum of Art exhibit, a culmination of a 10-year photography project, as well as the dozens of accompanying Zoe Strauss billboards throughout town. The South Philadelphia resident clearly has lots of fans, but award-winning New Orleans photographer Matthew White isn’t so happy.
“I don’t know where the line is drawn,” White says of one of Strauss’s works, “but it takes quite a big step over that line.” The “it” White is referring to is Car Submerged In Swamp, Venice, LA, Strauss’s photo (below left) that has found its place on a billboard on Grays Ferry Avenue, about 25 feet east of 47th Street. White, who like Strauss, is self-taught, believes the Strauss photo is too similar to Dying Cypress Swamp, Venice, LA, his copyrighted photograph (below right) that’s part of his own 10-year project to document the lower Mississippi River Delta. He contends that Strauss has taken his work, perhaps unintentionally, and is considering sending her a cease-and-desist letter. According to White, his photo was published in 2006 as part of a popular but now defunct blog, Beyond Katrina. “It received millions of hits,” he says. Strauss took her photo during the next disaster to hit the region: the BP oil crisis.
As Philadelphia intellectual property attorney Robert Zielinski explains, the legal issue in question isn’t plagiarism, but copyright infringement; plagiarism is a literary concept and not a legal one. “Ultimately, a judge or other finder-of-fact in this case would need to make a determination of whether these things are substantially similar,” says Zielinski, who also points out that Strauss would have to have had access to the photograph—i.e. that she could have seen it on the blog—for White to make his case. “And while there are certainly similar elements between the two pictures—I see some trees, a lake, a refinery in the distance—overall, I don’t think they’re substantially similar. Where’s the car in his photo?”
Think White’s claim is ridiculous? Consider a seemingly similarly ridiculous copyright lawsuit against George Harrison. In 1971, the owner of the 1960s Chiffons song “He’s So Fine” sued him shortly after the ex-Beatle released his number one hit, “My Sweet Lord,” a.k.a. “The Hare Krishna Song,” claiming that Harrison was guilty of copyright violation. One song is a poppy, all-girl doo-wop tune with a famous “doo-lang doo-lang” background vocal line. The other is a passionate tribute to the Hindu god Krishna that Harrison famously performed at the Concert for Bangladesh at Madison Square Garden. Do the songs sound similar? Sure they do. But did Harrison infringe on the “He’s So Fine” copyright? The judge said yes, and Harrison had to pay up.
“Judges don’t always get it right,” chuckles Zielinski, who happens to be a serious hobby photographer in his spare time. When I asked him if a case like this would ever see the light of day, or if a smart judge instead would quash it before trial, he said courts are generally disinclined to grant summary judgment in intellectual property cases unless it’s abundantly clear there’s no infringement: “A creative lawyer on the other side might bring up examples like the George Harrison case, but at the end of the day, Zoe would prevail.”
As for Strauss, she hasn’t heard from White directly, but doesn’t see any merit to his claim, though she can’t say for sure that she’s never seen his photo. “He is totally off base,” she wrote me in an email on Tuesday night. “It’s a striking scene that anyone would photograph, and our photographs are different for many different reasons, including that mine has a car in the swamp. … No disrespect to Matthew, who I wish a long and fruitful career xoxo.”
White hasn’t decided how he’s going to proceed, but it doesn’t sound like Strauss needs to retain Zielinski’s services just yet. “I don’t want to start a huge war,” says White. “But this feels like a real intrusion on my art. I feel stepped on, and here I am driving myself to starvation while she gets billboards and the backing of a major museum. If anything, I just wish she would swap that one out of the series. But an apology would be a good start.”