If I write a scene almost exactly like in someone's photograph, would it be plagiarism?

Question

I have a story which has a scene inspired by a photograph. When I saw that picture, I liked the fact that the person in it matches perfectly a character from my story, and I liked the idea of putting the character in the exact situation shown in the picture. Everything in it is reproduced, except the background/location, although in my work it is an equivalent place matching the story's setting, but everything else (the person's position, expression, clothes, appearance, the spot where the person is and how, etc.) are exactly the same.

So my question is: would that be considered any kind of plagiarism or copyright/royalty/license infringement?

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_{This question originally was about a visual recreation of the picture, but it was off-topic.}

Answer 1

My retired attorney father is famous for a saying:

Anybody can sue anybody for anything at any time.

"They may not win," he would continue, "but they can do it... and drive you into poverty in the process." You are in no way protected if you describe a scene in so much detail that it can be clearly identified as the photograph. "Fair use" never covers the use of an expression or creation in its entirety, but only in part — usually a very small part.

From an "I'm willing to risk the lawsuit" perspective, the more common the photograph or less detail you use, the less likely anyone could identify your effort as duplicating in words what they did with light. There must be billions and billions of sunset photographs and I'm not sure I'm exaggerating when I suggest that they're all 80% the same thing.

Likewise, again from an "I'm willing to risk the lawsuit" perspective, the less notable, noteworthy, popular, or well-known the photograph, the less likely anyone will be coming after you.

Personally, I'm a huge fan of asking permission. In fact, if you provide attribution, most starving artists are happy as larks to let you do it. Even if its only value to them is bragging rights. On the other hand, if you're looking at something so popular or iconic that the average shmoe might recognize it, it'll probably be simpler to find another photograph. Once people get a taste of income from their efforts, they tend to want that taste forever.

If there is the slightest doubt in your mind about whether or not something is legal or falls within "fair use," you should consult an attorney. That should be an axiom, not a guideline.

Answer 2

No and thank goodness it isn't. If it were possible for some artist to contend that authors had plagiarized her painting of a sunrise over the mountains the courts would be (even more) full of litigation and few books would be written in fear of this kind of problem.

It would be impossible to prove if your description came from memory or from the painting or photo or whatever.

Also, how would the original artist lose anything to your representation in a completely different media anyways.

Another example of this not occurring is where authors have taken direct inspiration from a painting for a book such as The Girl With One Pearl Earring by Vermeer

It was also made into a movie: Girl With One Pearl Earring - movie

Thank goodness artistic freedom still exists through interpretation and imagination.

Answer 3

You probably would be breaking the law unless you got permission.

If you are specifically trying to reproduce parts of a copyrighted work and have admitted so on a public forum, I do not see how the result could be seen as anything but a derivative work. And you are not supposed to do that without permission.

If you are in the US, you might be able to claim fair use, but claiming fair use without consulting a lawyer is not a good idea.

I fully agree with JBH on asking permissions.