Did This Painter Steal My Photo?

In my newsfeed this morning on facebook, I saw a striking image. It was a painting of a bison and a boy by Indonesian artist Elicia Edijanto, who is currently exhibiting work in Orlando, according to Colossal.com. It was a good painting, but that’s not what was so striking about it: I realized that it appeared to be copied from my own photograph.

In October of 2010, I was driving through Yellowstone National Park, on my way home after a long road trip in Colorado and Utah, when I saw a bison walking towards the steam rolling off of the Grand Prismatic Spring. I stopped and took several photographs, including this one:

Buffalo in Yellowstone Park Fog

Edijanto’s painting looks pretty similar from the outset…

Painting by Elicia Edijanto
Painting titled “Heal” by Elicia Edijanto

But after taking a moment to flip the painting over and resize them in Photoshop, the similarity seemed too strong for a coincidence.

(You can grab the double arrows in the circle in the center of this image and drag it left or right to reveal the separate layers)

So, now the question is this: what do I do about it, if anything? I didn’t license the image to this person. Perhaps I’ll start by emailing the artist, before contacting my lawyer again.

What do you think? Is it a copy? And if so, is it acceptable?

Update: Examples

A few people have made comments to the effect that 1) there are lots of bison pictures out there on the internet and 2) lots of them would overlay on the painting just as well as yours.

This is an understandable comment, at first. Bison do have a very iconic shape, so it’s easy to imagine that any single bison could just as easily replace another in a photograph. However, bison are animals, and like just about anything found in nature, no two of them are alike. Some of them are tall, some are stocky. Some are male, some female. Some are fat, some are muscular, some are thin. Some are old, some are young; some have big heads, some have long beards, etc. Most bison in the USA are actually “beefalo”, ie, they have cattle stock interbred, so some look more like domestic cattle. And of course, this is all in addition to how their bodies are positioned when photographed. The combination of all of those things (and more) mean that the outline of every bison is going to be very distinctive.

And this becomes more and more obvious when you actually attempt to overlay the shapes of random bison over the painting in question.  Take, for example, the image that Darleen posted in the comments below. This is what it looks like:

This stock photo looks pretty similar to my bison; it's a similar stance and, well, it's a bison.
This stock photo looks pretty similar to my bison; it’s a similar stance and, well, it’s a bison.

If we isolate just the shape of the bison, here’s what we get:

stock-photo-american-bison-male-bellowing-during-mating-season-109131647-outlined

And then, if you turn that shape green (so that we can tell what’s what) and overlay it on top of the painting, you can see how similar they are. Not. I sized them so that they’re the same length from nose to tail, and the tops of the humps are very roughly lined up.

stock-photo-american-bison-male-bellowing-during-mating-season-109131647-greenover

Nobody could ever suggest that the painting was copied from this bison. They’re just not that similar.

Now, perhaps you’re thinking, “Well, if that bison were photographed in the fall, when it’s fattened up for the winter… or it were standing differently… or it were older (or whatever), then it would be a close match! And an image like that is probably out there.”

Well, then I challenge you to find it. I have. It’s my photograph.

I also spent time some looking around the internet for bison pictures to see if I could find anything that was even close to matching my photo. This was the first one that I tried from my initial search:

American-BisonThen I put the outline over the painting, and…

fog-paint-bot-greenFirst I tried to match up the body length, as you can see above. Then I tried to match up the head size, and you’ll find the results below:

fog-paint-bot-redAnd these two images were not just flukes. I tried to find other images in which the bison was more like the one in my photograph, and the results were like the ones above. Yes, you can tell that all of them are bison, but none of them are the same bison, from the same picture.

Now, scroll back up and look once more at the comparison between my bison and the one in the painting.

When I originally contacted the painter, on the day that I discovered this, she emailed me back. She was miffed that I’d even suggested that she’s used my image without permission. If I were wrong, though, she could VERY easily have sent me a copy of the image that she had used as a reference. As unlikely as it is that she used the one image out there that also matches up perfectly with my photo and her painting, if she had produced her reference photo, I’d have apologized and moved on. Instead, she said:

I gather several bison photos from free-licensed web, turn them into silhouettes so that I can draw easier, and every bison look like a bison!

Indeed? Every bison? And these are the images she attached:

Now, even if I’m right, it that doesn’t mean that going to court would be a cakewalk. It would be expensive, and since the artist doesn’t even seem to be American, even if I won in court, the US courts may not be able to enforce a decision. For now, it’s enough for me that I know I’m right, and she knows I’m right… and she has to live with knowing that I know, and anyone else could find out at any time, for the rest of her career.

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13 Comments

  • Its a personal call. I would take it as a compliment, feel good about it and move on. Its very unlikely that person’s painting is going to cannibalise income that you might get from your photo (and its your photo; not your bison as you wrote!). All art is inspired or derived. There is a poem by Robert Frost that has always moved me. Its called “The Most of It”. May I?

    He thought he kept the universe alone;
    For all the voice in answer he could wake
    Was but the mocking echo of his own
    From some tree–hidden cliff across the lake.
    Some morning from the boulder–broken beach
    He would cry out on life, that what it wants
    Is not its own love back in copy speech,
    But counter–love, original response.
    And nothing ever came of what he cried
    Unless it was the embodiment that crashed
    In the cliff’s talus on the other side,
    And then in the far distant water splashed,
    But after a time allowed for it to swim,
    Instead of proving human when it neared
    And someone else additional to him,
    As a great buck it powerfully appeared,
    Pushing the crumpled water up ahead,
    And landed pouring like a waterfall,
    And stumbled through the rocks with horny tread,
    And forced the underbrush—and that was all.

    That poem could inspire me to explore wild country and solitude one day, to try to paint or photograph a great antlered buck swimming across a misty lake or coming out of it the water streaming off its back. The question is, would I be stealing?

    To credit you would be the correct thing of course but I’d object much more if someone was printing T-shirts with your actual photo and selling them.

    • Hey Dizz,

      You know, when I discovered this situation, the first thing that I wrote to my friends was “I suppose I should be flattered by this, but I’m mostly annoyed.” At this point, the annoyance has subsided.

      There are definitely a couple of different issues at play here. First, is this a case of copyright infringement, under the law? And separately, SHOULD my image be protected, under the law (whether it actually is or not)? It sounds as though you’re in favor of less protection.

      I’m also a fan of Robert Frost, but I’m not sure that the situation is analogous. I have no problem with other people painting or photographing that bison (if it is still alive); I also don’t claim any rights for images of bison standing in fog more generally. I have no claim to the idea; many people can share that idea and interpret it in their own ways to produce their own work. My problem is with someone using the specific image that I have already made, adding a bit to it, and taking credit for it as their own.

      Anyway, she’ll probably get away with it this time :-) As I say, my annoyance has subsided, and this time, it’s probably not worth doing anything about it… at least, not right now.

  • You might have an awfully hard case here… all of her pictures are invocative of fog.. not just the buffalo. There are lots of stock pictures of male buffalo out there one here that could be matched up just like yours. She also lives in Jakarta .. If she was your wife or girlfriend you might have abetter case. http://image.shutterstock.com/display_pic_with_logo/1163291/109131647/stock-photo-american-bison-male-bellowing-during-mating-season-109131647.jpg

    • Hi Darleen,

      I updated the post above to show why I’m not concerned about other pictures of bison.

      You’re right; taking it to court would probably not get me anything… except perhaps on principle. For now, I’ll probably let it go.

  • This viewer feels the case for derivative is a slam dunk, and solid for copy.
    The sloping background and close similarity of image and profile are persuasive.
    The lawyer’s letter should be the first notice received by the artist and it could include an inquiry as to the source and a request for copies of relevant material.

  • You might have a case to argue however the knees are different, the male extremety is different, the tail is slightly different, the slope up behind his head is different and, as someone said, the V is different. The courts will pick on every little bit of difference. The painting is indeed similar, the fact that she left out the background might suggest she didn’t want it to look exactly like your photo. She may have taken the photo herself and used that, in which case she should still have the photo and if she doesn’t, maybe is good evidence in favour of your case.
    I wish you the best of luck.

    • Thanks! Actually, for the courts, the tiny differences don’t necessarily matter. Again, we’re talking about different mediums… photograph vs painting, and the details don’t need to be exact… it only needs to be apparent that my photograph was used as the reference; a painting will still be considered a derivative even if there are substantial changes made and there are additions or subtractions. My case is only that she used my bison as a reference, not that she copied my whole photograph.

      For copyright purposes, derivatives include things like making drawings or paintings from photographs, making sculptures from drawings, a screenplay based on a novel, etc.

      Here’s an account of something similar happening to another photographer that has a good discussion of the issues:http://www.enlightphoto.com/views/2012/03/09/thats-my-picture-derivative-use.htm

      “In law, it does not matter whether the change is great or small, or whether the result is recognizably like the original; what matters is whether your creative process began with an existing image.”

      The funny thing here is that I used to live near that National Bison Range, when I live in Missoula, MT. I have hundreds of photos of bison, and not a single other one of them is even close to matching this one. And what are the chances that the only picture of a bison in the fog that I have (and have published) also matches this painting of a bison in the fog almost exactly?

    • ……..but the spacing between the hind legs DOES NOT line up.
      There is a difference in the shape of the “V” the thickness of the rear and front legs

      • OK… so we’re looking at a painting, not a photocopy. It goes without saying that there will be some minor differences… they’re dependent on the skill of the painter. However, I challenge you to go out on the internet and find ANY picture of a bison out there, cut it out, and line it up on top of mine (I’ve done this myself). If you do that you’ll see how impossible it is to come up with two bison that have outlines that are this similar. Bison are like people: some are heavy, some are thin, some are muscular, some are tall, some are short, proportions are different, body positions are different… etc.

        The only way two outlines could come anywhere near this close to being exactly the same, one would have to be derivative of the other. The painting doesn’t have to be identical to the photograph, it just has to be “substantially similar”; a reasonable person has to be able to look at the painting and recognize that it is based on the photograph.

  • This is definitely a copy. I don’t know what laws say about doing this kind of stuffs, but the artist should have at least asked for your permission before posting or using his art which was totally inspired by your photograph.

    Actually the word “copy” suits it much better than just saying “inspired by” !

    • Agreed :-) The ‘artist’ replied to my email and said that she didn’t use my photo. She said all bison look the same. So, it looks like I’ll have to lets the courts decide.

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