Apparently, "Ropar's Mexico #9 bears a remarkable resemble to Spring Muertos, a photograph of a make-up artist, Lisa Naeyaert, taken by the American photographer Gayla Partridge in November 2008."
A switched on friend of Ms Partridge alerted her after spotting the work online in what we believe is a blatant breach of copyright. We don't think people would be too hardpressed to see the similarities. The image is essentially the same except that the derivative work has a new background, and the placement of the model is different – she's not positioned from the waist up but rather from the chest up. There also appears to be some diffusion of the colour but these adjustments don't take away from the fact that the image is recognisable from the source material. It looks as if it has just been copied and pasted into the new artwork.
Which brings us to the issue of derivative works. The Australian Society of Authors (ASA) Comics Biz ezine (Volume 1, #5 May 2009) examined this subject in their Legal FAQ column. Here is the piece in question:
What are Derivative Works?
Creators understand the term “derivative work” to include a literary, musical or artistic work such as a translation, dramatisation, adaptation, film version, art reproduction, abridgement, condensation or any other work that is based on one or more pre-existing works but has been modified or transformed.
Two issues arise for creators of derivative works. First, you need to get permission from the owner of copyright in the original work before making a derivative version, if the original work is still in copyright. That is because the derivative is likely to be an adaptation or reproduction of the original work and therefore an infringement of copyright if permission is not obtained. Secondly, there is the question of whether the derivative work is itself protected by copyright.
To attract copyright protection, the derivative work must contain a sufficient degree of originality to constitute it as a new work of authorship in its own right. The central “idea” in the derivative work may be based on other source material, but the “expression” and execution of that idea must be markedly different through the mechanisms of characterisation, text, symbols, illustrations and sometimes even the medium. For example, West Side Story the stage and screen musical is a derivative work from William Shakespeare’s play Romeo and Juliet. The film Clueless is a derivative work of Jane Austen’s novel Emma. Andy Warhol’s pop art piece Campbell’s Soup Cans is a two-dimensional derivative work (comprising 32 canvases) based on the three dimensional branded grocery item – the Campbell’s soup can.
There is little case law on derivative works. However, Creative Commons (CC) Licences ... which are used predominantly in the online community, include a permission known as “NoDerivs”. These licences do not include permission to make derivative works, and doing so might be an infringement of copyright.
In our opinion, this puts this case into perspective.
BTW, despite arguing for the case of plagiarism, we completely disagree with the Associate Professor from the Sydney College of the Arts who has decreed that "the original is so cheesey I'm astounded anyone would want to plagiarise it...". We LOVE LOVE LOVE the original photo!