THE FASHION LAW EXCLUSIVE – Harper’s Bazaar’s September issue has hit newsstands and as a result, the magazine may soon be coming under fire for its “Dance of Dior” editorial – one that according to sources looks a bit too much like a photo credited to SHOWstudio’s Nick Knight. You may recall that in 2004, the celebrated fashion photographer teamed up with Alexander McQueen and choreographer Michael Clark to create, Blade of Light (pictured above), which was featured in Numero magazine’s Spring/Summer 2004 issue. According to the SHOWstudio site, “Knight’s Blade of Light image has become one of his most famous works.” And as you may have noticed, its been making the rounds online since early this year as part of SHOWstudio’s “Unseen McQueen” series, leading up to the March opening of the McQueen “Savage Beauty” exhibit at the V&A in London.

Now enter Harper’s Bazaar’s September 2015 editorial (pictured directly above), which was styled by Michelle Jank, shot by Simon Procter and choreographed by New York City Ballet’s Justin Peck, and features New York City Ballet dancers. At first glance, the similarity is quite astounding (so much so that someone in Knight’s camp tweeted: “Who knew plagiarism in fashion could be so obvious? Harper’s Bazaar rips off Nick Knight”) – maybe even strong enough for Knight to make a merited case for copyright infringement. Both images certainly depict what Vanity Fair described in 2004 as “a human latticework of tossed bodies.” Essentially, both images depict dancers, some of whom are gracefully suspended in air in the shape of an arc – with limbs astray, grounded by two sets of dancers on each side. 

At the same time, there are arguably enough differences between the two photos to make a case that Harper’s Bazaar’s version is not infringing of Knight’s original at all. The larger group of dancers on the ground in Knight’s photo are lying down, while in Harper’s Bazaar’s they are standing. Both groups on the ground in Knight’s photo consist of at least three dancers, whereas one of the groups in Harper’s Bazaar’s photos only consists of one. In Knight’s photo, there are four dancers in the air at the top of the arc. In Harper’s Bazaar’s, there are five (seven – if you count the two on the respective sides). Lastly, the models in Knight’s photo are dressed in Alexander McQueen garments, whereas those in the Harper’s Bazaar spread are wearing Dior. Differences such as these give the Harper’s Bazaar photo a bit of a different appearance than the original.

If we look to the law of copyright for a moment, Knight’s best argument (if he has a successful argument at all, which is very much up for debate) is likely that Harper’s Bazaar’s image is an infringing derivative work. (While copyright law affords protection to creators of unique choreography that is fixed in some permanent, tangible form such as a written notation, book, video, sound recording, or drawing, this protection is not at issue here as the individual poses all vary quiet a bit). A derivative work is a new, original product that includes aspects of a preexisting, already copyrighted work. Only copyright owners have the exclusive right to produce derivative works based on their original, copyrighted works. Hence, Knight’s hypothetical argument.

Essentially, Knight could possibly argue that Harper’s Bazaar’s team was inspired by his work, and that they’ve used some of his original without his consent. The thing is: that does not necessarily mean Harper’s Bazaar infringed his original work, as the magazine’s creative team’s use could amount to “fair use” – a defense available to someone who uses another’s work —without permission — in the creation of his or her own. I will spare you the in-depth analysis of whether this would be fair use (and whether or not Knight even has a case in the first place). [The legally-minded can find another example of the fair use analysis here.]

I think Harper’s Bazaar is in the clear here, but feel free to sound off on whether this is, in your opinion, a case of inspiration or imitation in the comments section below. 

Update: Turns out, Lou Stoppard, editor of SHOWstudio, also noticed the similarity. She took to her Instagram, posting the two images, along with the caption: “Just deeply not okay. Spot the difference … Surely Harpers US have seen this Nick Knight image before? Is this a direct reference?”

Update II: In response to comments on her Instagram alleging plagiarism (not from us), Harper’s Bazaar editor, Laura Brown stated: “We were inspired by many things, from the incredible @showstudio_nick_knight image to the charm of the 70s disco video.”