It is nearly a week since Steve Jobs passed away. The outpouring of emotion and the artistic manner it often appeared in, seemed both startling and natural. It was a testimonial to Jobs’ conviction that art and utility worked together.
Of all the tributes, nothing captured more attention than Jonathan Mak Long’s creation, where a silhouetted profile of Jobs served as the bite from the famous apple.
The artist, who goes by the name Jonathan Mak, posted the image here on August 26, 2011 after Jobs stepped down from his position as CEO of Apple. At the time, Mak wrote: “Posting designs like this one makes me paranoid, because I can’t shake the feeling that it’s not original. I enjoyed the process regardless, but please let me know if somebody else beat me to the idea!”
The words were prophetic; comments later posted to his blog accused him of taking from an editorial work of Chris Thornley. That image was published at Creative Review, a visual communication magazine and can also be seen at Thornley’s own site. On October 9, 2011, Mr. Mak posted a very thoughtful and considerate response to the charge of plagiarism. Michael Cavna, of the Washington Post, summed it up well: “It happens … Two talented artists, same deft idea.” [Cavna’s article includes some delightful editorial cartoons, all relying on a similar theme.]
The dispute is a reminder that “originality” is a heavily laden term, far weightier than what copyright law might impose. As I noted earlier, current discussion of originality draws from the 2004 CCH Canadian decision which reminds us that originality does not rely on being “novel or unique.” That train of thinking has its roots in an English case of 1916, (Mak, being a resident of Hong Kong, conceivably can draw from the same legal lineage). University of London Press v. University Tutorial Press is a classic case; it set the minimal requirement for originality as something more than a copy, yet not necessarily novel. At issue was whether a set of mathematics examination papers were original. The court wrote:
The word ‘original’ does not in this connection mean that the work must be the expression of original or inventive thought. Copyright Acts are not concerned with the originality of ideas, but with the expression of thought… The originality which is required relates to the expression of the thought. But the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work — that it should originate from the author (p.608-609).
The circularity of definition notwithstanding, the last phrase set the bar of originality as separate from the question of uniqueness. Originality is a question of origin. The expression of thought must be new to the author.
But while law awards the label of originality on the basis of individual thought and expression, society is less fair-minded. Whoever speaks, illustrates, composes and then publishes first, gains a prestige at the expense of fellow creators. [It took the world over a century to allow both Newton and Leibnitz equal claims to Calculus]. The assumption is that any similar, or near-identical work, must have been copied. It is a sobering thought – that all work must either be seen as unique or condemned to the stamp of plagiarism.
University of London Press v. University Tutorial Press,  2 Ch 601
Abraham Drassinower, “Taking User Rights Seriously,” in In The Public Interest: The Future of Canadian Copyright Law, ed. Michael Geist (Toronto: Irwin Law, 2005).