There’s an interesting dichotomy in artistic fields like photography and music in which the audience often describes art as having ineffable qualities arising from inspiration, creativity, and talent, while artists describe art like work as being the product of persistence, experimentation, and drive. Great art looks effortless but never is.

Erica Simone is a photographer in New York who put together a project, “Nue York,” involving an unusual sort of self-portrait:

All of the photos are of her doing every day New York activities from riding the subway, buying a hot dog from a food cart, window shopping, shoveling snow, using an ATM machine at HSBC, except that in each one she’s nude, barring the occasional hat or pair of shoes and of course her ever visible tattoo. The photographs were taken by her, using a tri-pod and shutter release.

She’s criticizing image obsessed, overly fashion-conscious New Yorkers who care more about their looks and the next designer sale than what’s going on around them in the city. The concept for her collection was born from these observations and asking herself: “what would we do without clothes?, would we feel comfortable just being who we are?”

There’s of course nothing new about using the naked female form to express an artistic point — some of the oldest human art found does exactly that that — and there is similarly nothing new or original about exploring and pushing social boundaries through nudity.

But there is something new, creative, and original about what Erica Simone did. To understand that original element, we turn to an artist who knew more than a little bit about pushing social boundaries, or at least a lawsuit that related to him:

As Judge Pauley admirably recounted in SHL Imaging, Inc. v. Artisan House, Inc., photography was initially met by critics with a degree of skepticism: a photograph, some said, “copies everything and explains nothing,” and it was debated whether a camera could do anything more than merely record the physical world. 117 F.Supp.2d 301, 307 (S.D.N.Y.2000) (internal quotation omitted). These largely aesthetic debates migrated into legal territory when Oscar Wilde toured the United States in the 1880s and sought out Napoleon Sarony for a series of publicity photographs to promote the event.[6] Burrow-Giles, a lithography firm, quickly copied one of Sarony’s photos and sold 85,000 prints without the photographer’s permission. Burrow-Giles defended its conduct on the ground that the photograph was a “mere mechanical reproduction of the physical features” of Wilde and thus not copyrightable. Burrow-Giles, 111 U.S. at 59, 4 S.Ct. 279. Recognizing that Oscar Wilde’s inimitable visage does not belong, or “owe its origins” to any photographer, the Supreme Court noted that photographs may well sometimes lack originality and are thus not per se copyrightable. Id. (“the ordinary production of a photograph” may involve “no protection” in copyright). At the same time, the Court held, a copyright may be had to the extent a photograph involves “posing the said Oscar Wilde in front of the camera, selecting and arranging the costume, draperies, and other various accessories in said photograph, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired expression. . . .” Id. at 60, 4 S.Ct. 279. Accordingly, the Court indicated, photographs are copyrightable, if only to the extent of their original depiction of the subject. Wilde’s image is not copyrightable; but to the extent a photograph reflects the photographer’s decisions regarding pose, positioning, background, lighting, shading, and the like, those elements can be said to “owe their origins” to the photographer, making the photograph copyrightable, at least to that extent.

From Meshwerks, Inc. v. Toyota Motor Sales USA, Inc., 528 F.3d 1258 (10th Cir. 2008)(bolding added).

Just like how no photographer can claim copyright protection over Oscar Wilde’s face — or Miles Davis playing the trumpet — no one can copyright the idea of taking nude pictures, not even nude pictures on the streets of New York City. Indeed, no one can copyright any ideas at all, they can only copyright their particular expression of an idea. See Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991)(“[N]o author may copyright facts or ideas. The copyright is limited to those aspects of the work—termed `expression’—that display the stamp of the author’s originality,” quoting Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985)).

Rather, a photographer can claim copyright protection and ownership of their own creative elements, like composition, lighting, color, contrast. In short, if you didn’t create the element in question by positioning the subject, pointing the camera, adjusting the camera, or processing the photograph, then you have no claim to ownership over that element of the work.

After Simone published her work, Mullen, the advertising agency for Zappos put together an advertising campaign that involved, perhaps not coincidentally, naked individuals in urban environments, to advertise that Zappos sells more than shoes. Frankly, it seems like an obvious idea to me; the interesting part is that a company of Zappos’ size committed to it.

Simone is quite upset about the matter, upset enough to talk with AdWeek and assert her belief that Mullen “ripped her off.” She says she’s “waiting to hear from different lawyers on what they plan on doing.”

Well, let me help out.

Village Voice seems to have the most reasonable analysis of the pictures’ similarities to one another:

We’re almost always on the side of the little guy in situations like these — take, for instance, Forever21’s beef with satire site WTForever21 or Urban Outfitters seemingly grabbing local artists’ designs. But, at the same time, and as every blogger knows, sometimes ideascan happen simultaneously among different people. And though we feel Simone’s pain, can you really own “being naked and doing everyday things”? If so, what does that mean for those Bluefly ads, which go all the way back to 2005? Or…for our lovely topless lady of the Bowery, for that matter?

And, yet, when we look at the catalog of Zappos ads, which also include riding a Vespa and hailing a cab, all shot in Manhattan locations, there does seem to be a certain similarity. Although Simone’s photos are prettier, and more authentic: During the Zappos shoot, reports the New York Times, “the models wore pasties and thongs or tiny bikinis, which were edited out later.”

Indeed. The jogger? The Vespa? There seems to be some similarity there, but even if we assume that Mullen saw Simone’s art and decided to make their own version, there still likely isn’t any claim there. The new art is simply too different; the idea of a naked woman jogging through New York is an idea, not the expression of an idea.

If Mullen had simply copied her photographs, or had simply re-done pictures with the same composition, that would be an infringement. But the mere idea of public nudity in New York City is not, by itself, protected by copyright.