Plagiarism? (again)

"Sometimes there is no acknowledgment, tacit or express, of the original author but [viewers] are indifferent; they may be deceived, but the deception has no consequences. . . . A judgment of plagiarism requires that the copying, besides being deceitful in the sense of misleading the intended [viewers], induce reliance by them. By this I mean that the [viewer] does something because he thinks the plagiarizing work original that he would not have done had he known the truth. . . . The [viewer] has to care about being deceived about the authorial identity in order for the deceit to cross the line to fraud and thus constitute plagiarism. More precisely, he has to care enough that had he known he would have acted differently. There are innumerable intellectual deceits that do little or no harm because the engender little or no reliance." ~ Richard Posner*

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The Mosque of Istiqlal, Jakarta, Indonesia, 1996.
Photograph © Sebastião Salgado

The National Mosque in Jakarta, Indonesia, 2009.
Photograph © James Nachtwey/National Geographic.

This post is a follow-up to this one - hence the (again). I am preparing a talk and came across the Salgado image which I do not recall having seen before. It reminded me of the Nachtwey image on which I commented here a few months ago. In any case, the confluence allowed me to come back to the topic and refer readers to the Posner book from which I've properly quoted and which I have (properly) cited. (I have altered the passage to substitute 'viewer' for 'reader', which is in keeping with what Posner himself allows.) Mostly, I think Posner pushes us to recognize that the recent fracas about plagiarism in photography is - in legal terms at least - much ado about not very much. Did Nachtwey (or, in my earlier post, Rai) set out to reproduce Salgado's photographs? The later images are in neither instance identical to the earlier ones. But the vantage point and subject matter and impression are virtually the same. Yet there is no reason to allege deceit in either case. Would you not buy Nachtwey's (or Rai's) image if you discovered Salgado's? There is no reliance in either case either. As I remarked in the earlier post the history of photography is replete with convergences like the ones I note.

That leaves our judgment of the creative merits of this or that photographer. This, I think is what is at issue. In the cases I have adduced - images by master photographers like Raghu Rai or James Nachtwey that reproduce earlier images by master photographer Sebastião Salgado - I see no reason to suspect that our assessments of the former are in any way diminished by awareness of the latter's work. Each man has an impressive body of non-overlapping work. But this brings us back to Posner who observes that:

"By far the most common punishments for plagiarism . . . have nothing to do with law. They are disgrace, humiliation, ostracism, and other shaming penalties imposed by public opinion on people who violate social norms whether or not they are also legal norms. . . . The stigma of plagiarism seems never to fade completely, not because it is such a heinous offense but because it is embarrassingly second rate: its practitioners are pathetic, almost ridiculous."

Posner concludes that mockery and disdain - not legal action - are in most instances the proper response to plagiarism when it is suspected. I agree. But that creates an immense burden. When thinking about behavior of various denizens of the art world, how are we to pick out the egregiously second rate, pathetic and ridiculous from that which is simply run of the mill?
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* Richard Posner. The Little Book of Plagiarism. New York: Pantheon, 2007.