May 25, 2018

Hannah Graves

Is This Viral National Geographic Cover A Clear Copyright Infringement?

Our latest @NatGeo cover is one for the ages#PlanetorPlastic

— Vaughn Wallace (@vaughnwallace) May 16, 2018

On May 16th, National Geographic photo editor Vaughn Wallace shared their now iconic “Planet Or Plastic?” cover design. Stating it was “one for the ages”. Now, an artist has come forward claiming the work is a possible violation of his copyright as it is a "stolen idea".

@vaughnwallace thats sad that you chose a stolen idea and "artwork" to be on your cover page. NatGeo should know better.

— Matúš Bence (@MatusBence) May 17, 2018

The Tip Of The Iceberg

The image shows a haunting plastic bag hanging in the ocean, a small part of it visible above the waterline, with the tagline “18 billion pounds of plastic ends up in the ocean each year. And that’s just the tip of the iceberg”. It is simple but clever, and it quickly went viral. To date, Wallace's tweet has been liked 116K times and retweeted 58K times.

Who Is The Artist?

Many have commented on the tweet asking who the creative mind was behind the photo illustration. Wallace responded that the artist responsible is Jorge Gamboa. One Twitter user responded “OK. Jorge Gamboa deserves an award for this”.Gamboa published the image on his Behance in January 2018 but the image had already been shared and credited to him in April 2017, and was widely circulated.

Is It An Original?

In 2015, Matus Bence created a very similar image for an awareness campaign for Tesco eco-bags. The artist is now claiming that the National Geographic cover is plagiarism of his original work, but is it a copyright infringement? He claims he became aware of Gamboa’s version before it became an iconic cover image, and contacted the artist at the time asking for an explanation. He never received a response.

An Expert Opinion

Ideas are not covered by copyright law but the way they are expressed is. We reached out to Pixsy legal partner David Leichtman for his expert opinion on this case. He specializes in the trial and resolution of complex intellectual property and business disputes.

"The questions a court will consider in a case like this is whether there are multiple ways to express the same idea and then whether the second image is not just similar, but strikingly similar.  Here, the details of the images are quite close -- while the bag is shaped a bit differently and the original has the sky in the background, the manner that the bag is placed in the water and the similarity of the colors put this case very close to the line.  In addition to a copyright claim, there is also potentially a claim for lack of attribution that can be brought."

It's a tough call to make, even from an expert legal perspective. To date, National Geographic and Jorge Gamboa have declined to comment. It remains to be seen if this tale of two icebergs is set to become a landmark legal case or not.

Hannah Graves

As Pixsy's Product Marketing and Community Manager, Hannah is always keen to start conversations and she loves to make connections! With years of experience working with and advocating for visual artists, she is passionate about fair pay for fair work and enjoys helping to get artists paid, and heard.

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