Did David Burdeny copy Sze Tsung Leong's photographs?

By Mark Lamster >>>

Feb. 28, 2010 12 AM PT

It seems like something out of a Charlie Kaufman film.

Last month, the New York-based photographer Sze Tsung Leong was on location in La Paz, Bolivia, when he received a phone message from his New York gallerist, Yossi Milo. It had come to Milo’s attention that a Canadian photographer was exhibiting a series of works in Vancouver that bore a striking similarity to an ongoing series by Leong. An image of the Canale della Giudecca in Venice? The Canadian photographer had it, and from the same perspective as Leong’s. A cracking ice floe in Iceland? An Egyptian pyramid? A Japanese shrine? He had those, too, all cropped and composed in similar fashion.

FOR THE RECORD:
Photographs and copyrights: An article in today’s Arts & Books section about photographs and copyrights refers to photographer David Burdeny as Daniel Burdeny in a caption and a quotation. —

Using images sent to him by a source in Vancouver, Milo identifiedseven photographs that he believed to be, if not “exactly the same,” at least “very similar” to Leong’s, as well as several images that bore direct resemblance to works by the German photographers Elger Esser and Andreas Gursky.

But it was Leong, a rising art world star whose work is held in the collections of the Museum of Modern Art and the International Center of Photography, who appeared to be the principal source for the Canadian photographer, David Burdeny. The installation style of Burdeny’s “Sacred and Secular” series at Vancouver’s Jennifer Kostuik Gallery seemed to be borrowed from the rather idiosyncratic presentation of Leong’s “Horizons” series at Milo’s New York gallery. Even Burdeny’s artistic statements had wording that was similar to Leong’s.

A little investigation on the Internet revealed to Milo that Burdeny, 41, had studied architecture before turning to photography, as had the 39-year-old Leong. It all brought up the question: Did Leong have a doppelgänger stalking him around the globe, reproducing his images?

There’s nothing particularly unusual about uncredited borrowing in the world of photography, a medium that is itself predicated on direct reproduction. But when such cases rise to the level of legal infringement is a difficult and largely subjective question.

Every photograph, even a tourist’s snapshot, is protected by copyright law. But the extent of that protection is itself regulated by the doctrine of “fair use,” which even the United States Copyright Office says is “unclear and not easily defined.” Presumably, some form of transformation of an original work is required to avoid infringement, but just what constitutes an acceptable level of transformation is a matter of interpretation.

There have been several high-profile instances of photographic infringement. Sherrie Levine, who challenged the very nature of photographic originality by shooting the works of Walker Evans for her 1981 work “After Walker Evans,” was forced to turn over that series to the Evans estate. Jeff Koons has had mixed results in court defending his own appropriation of photographic images.

The financial ramifications can be considerable. Leong’s prints sell for as much as $25,000, and Burdeny’s for up to $10,500. Confusion between the work of the two artists in the marketplace could adversely affect those values.

Eye of the beholder

Burdeny, for his part, denies all charges of infringement, and even denies being influenced by Leong. “These were all taken in heavily populated tourist areas,” he says of the photographs whose originality has been questioned. “A big one that’s come up is the pyramid. It just so happens that that’s the only pyramid that you can photograph with a tripod without some very expensive permits.”

Perhaps even more challenging for Leong and his attorneys is Burdeny’s position on the nature of reproduction. “Nothing is truly copyable,” he says. “My take on it is if I’m doing it there’s always going to be a piece of me telling the story.”

A narrow preponderance of commenters on the website of Photo District News, an industry source that reported the story last week, support Burdeny’s contention. “It’s slightly ridiculous that anybody is shocked by similar images,” wrote Nathan Erfurth, a Colorado photographer. “In this day and age, just about everything has been photographed by many different people in many similar ways.”

Burdeny’s Vancouver gallerist, Jennifer Kostuik, goes beyond even that contention. “I don’t find them substantially similar,” she says of the works by Leong and Burdeny. “There are similarities in any contemporary artists’ work. I’m only going to say that there’s a similarity in terms of composition. But thematically, in terms of color, Mr. Leong’s work, it’s not even the same thing. There’s nothing spiritual about Mr. Leong’s work. It’s all aesthetics.”

Burdeny and Kostuik have not always been so dismissive of Leong’s aesthetic proclivities. A signed credit card receipt furnished by Yossi Milo Gallery indicates that Burdeny purchased a copy of Leong’s “Horizons” catalog at the gallery on March 6, 2009, several months before he agreed to show his “Sacred and Secular” series at the Kostuik gallery.

A year earlier, on April 2, 2008, Kostuik sent Milo an e-mail requesting permission to show Leong’s work in her gallery, timed to the opening of the Vancouver Winter Olympics. Milo declined that request, but Kostuik followed it up again, two days later, pressing her interests. “Just wondering if you may still be interested in hav[ing] a show out here together with this artist [Leong],” she wrote. “Let me know and we should begin discussing if it is possible.”

Clayton Caverly, a Toronto-based attorney for Leong, says, “Without knowing all of the evidence at this preliminary stage, Leong believes that there is a basis for inferring that the gallery owner and the artist engaged in a civil conspiracy to infringe copyright and appropriate his artistic expression.”

Kostuik vigorously denies this charge. “I know he’s trying to make it look like we cooked things up, but that’s ridiculous. It’s not what happened,” she says. “I hadn’t thought about [Leong] in years.”

To Joshua Chuang, a curator at the Yale University Art Gallery who has purchased Leong’s work, that argument is unconvincing. “[Burdeny] is more or less claiming that his ideas were original. That his ideas were inspired by a whole visual culture,” says Chuang. “What I find egregious is a lack of acknowledgment of his sources. I think he’s delusional, in the case of pretty hard evidence that he studied Leong’s work.”

Question of originality

Leong’s photographs are themselves hardly produced out of thin air, as Antonio Homem, a director of New York’s Sonnabend gallery, which represents Esser, points out. “Both [Burdeny] and Leong have a body of work that relates to Esser, but in the case of Burdeny, it’s more than relating, he went to the place to take the photographs that Esser took.” Esser, according to Homem, is at present planning no action against Burdeny.

Leong, a trim and studious Guggenheim Fellow who is self-taught as a photographer, has devoted considerable thought to the nature of originality in his chosen profession. One of the ironies of the situation in which he now finds himself embroiled is that he actually began photographing his work in series because he felt that was a way to develop a distinctive personal vision, one that would be his and his alone.

“It’s more difficult to create something new and unique within a single image,” says Leong. “It’s easier to create something unique through multiples exploring a theme.” Indeed, this was the subject of his strangely prophetic essay, “A Picture You Already Know,” published in August 2008 by the Los Angeles County Museum of Art. “To shape a personal vision requires revisiting a subject over many images to create a more focused and particular view.”

“In photography, you see a lot of quotation,” he says. “Every photograph has traces of past photographers.” Sometimes, those traces are just a bit too close for comfort. Whether they are too close for the law is another matter, and yet to be determined.

Mark Lamster is author, most recently, of “Master of Shadows,” a political biography of the painter Peter Paul Rubens.