There's an old chestnut that copyright experts love to trot out when they're explaining legal intricacies to a layman: Copying one source is plagiarism. Copying multiple sources is "research."
This might prove useful to Oakland illustrator Lisa Congdon, who was recently in a dispute over intellectual property — in which she plays both the alleged infringer and victim. Last month Congdon played protector of the little guy when she accused wholesale ornament-maker Cody Foster & Co. of filching her ideas. She said that theft is essential to Cody Foster's business model, and that it enlists its staff to troll the Internet in search of indie artwork to appropriate and mass-produce.
"I don't care about the money," Congdon writes in an impassioned Oct. 16 blog post. "What I care about is exposing Cody Foster for what they have done and continue to do to independent artists." Feminist webzine Jezebel picked up the story, and within hours it went quasi-viral.
Three days later, art critic Brian Sherwin challenged Congdon in a blog of his own, pointing out that some of her drawings resemble wildlife photographs from National Geographic, Daily Mail, and other outlets; ergo, she might be guilty of the same practice she'd condemned. A few of Congdon's supporters said they felt jilted.
From a legal perspective, though, she might have it both ways. According to University of Santa Clara law professor Tyler Ochoa, Congdon has at least one tenable claim against Cody Foster; several details of its caped reindeer ornament hark to one of her original drawings. Yet the photographers whose work she copied evidently have less room to parry.
Congdon's 2011 illustration of a standing polar bear looks uncannily similar to a picture that photo-journalist Steven Kazlowski took at the Svalbard archipelago in Norway: same position, same dimensions, same chilly expression. Yet, Ochoa says, none of these elements is copyright-protected; a photographer could lay claim on distinctive lighting and color contrast, but not on the pose an animal strikes in the wild. Not to mention Congdon can always say she looked at multiple photographs for reference, and that her drawing is a composite.
Congdon says she plans to refute Sherwin's criticisms eventually, but she's waiting to settle ongoing legal negotiations with Cody Foster. Kazlowski has yet to comment.
Cody Foster, meanwhile, tried the "composite" defense itself, arguing that its alleged clones were based on "folk art" of ambiguous provenance — not other people's ideas. No dice, Ochoa says. "Folk art" isn't born in the wilderness. The argument wouldn't prevail in court, or even stave off Congdon's moral opprobrium.
Yet, Ochoa cautions, to the extent that Congdon claims moral outrage rather than legal infringement, the same charge could be leveled against her — or in a word, copied. Rachel Swan
*from the Jonathan Lethem essay, "The Ecstasy of Influence"