“People copy all the time, they call it homage, but sometimes the copy is just too blatant and it is quite annoying,” she wrote in an email. “I actually tried to sue once, but it is very complicated and in the end not worth it. Today social media is doing the job.”
Mr. Walker, who photographed the “Sour Prom” image, did not respond to an interview request. A representative for Ms. Rodrigo declined to comment for this article.
Amy Adler, a professor at the New York University School of Law who specializes in art law, said that any legal action against Ms. Rodrigo for the image would be an “uphill battle.”
“You can’t copyright an idea, but only the expression of that idea,” she said.
Both images, Ms. Adler said, subvert “the smiling perfection of the idealized beauty queen.” It’s a common visual reference that predates the “Live Through This” cover; the prom scene from the 1976 horror film “Carrie” is probably the best known example, and Ms. von Unwerth herself has cited its influence on her own work.
Ms. Adler said that even though the images for “Sour Prom” and “Live Through This” carry out the same idea, they are still different enough that it likely wouldn’t be considered copyright infringement. Ms. Rodrigo, she said, could argue a fair-use case; making references to a copyrighted work or reproducing it can be legal, “if you’re using it for new purposes.”
Copyright law draws the line between protecting artistic expression and not letting people lock up ideas. “On the one hand, you don’t want to encourage people to steal other people’s expression,” Ms. Adler said. “But in its goal of encouraging and protecting creativity, copyright law also wants to leave room for creators to draw on previous works because so much creativity depends on the freedom to build on and reference previous works.”
While Ms. Love has requested flowers from Ms. Rodrigo, Ms. von Unwerth said she just would have liked to have been included. “I’d love to meet Olivia Rodrigo, I think she’s a wonderful young artist with a cool universe,” the photographer said. “I could offer my vision to the team and make a truly original project!”
