Copyright denied because the model’s pose is not unique
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Whether something should or should not be copyrightable in the moral sense is a very different conversation than in the legal sense and I don't really see why we should be restricted into believing that things that commonly require licenses should always be that way.
The problem is that Luxembourg's copyright regime should be a lot more stricter than, for example, US (this ruling is significantly different from other Luxembourgish rulings). I actually thought that this is a US ruling at first glance.
If the Law governing IP in Luxembourg only protected exact copies, the reasoning wouldn't have had to have been about the pose, it would have been that the painting wasn't and exactly copy of the photograph.
However either way, I see no reason to think about copyright in such a limited way. I don't think many people believe that copyright is only enforceable if two works are exactly the same. Rather I think they're simply discussing how inspiration and imitation is very common in art.
With AI you need to prove that picture A.jpg was based on work B.jpg. How are you going to do that? "It looks similar" is not a proof I used your picture.
That said, the pose is not unique and her example of someone who "copied" her work (https://nitter.net/pic/orig/media%2FFjY3coxaYAImURa.jpg) wasn't identical and should be allowed. It's clearly directly influenced by the original, but if someone else wants to create something similar that's just art. It's what all artists do and always have done.
If artists couldn't create their own versions of things captured in works by other artists, new art could not exist.
No one should be able to copyright a "style" or a pose just like no one should be able to copyright a genre or a camera angle.
If you like analogies, it’s like some pro photographer found a place, angle and hundreds of other parameters to shoot in the nature, copyrighted the image, and then someone geoguess’d that exact place next day and took a pic with their iphone or google maps street view.
After all, copyright works for whole thing, not spare parts (technique, style or "idea" aren't copyrightable)...
No, this is wrong. Here's a counterexample [0].
[0] Structure, sequence and organization. https://en.wikipedia.org/wiki/Structure,_sequence_and_organi...
I'd agree with that. A movie adaptation (with changes) should be allowed under copyright because it's clearly transformative and creative. Copyright should protect against reproduction without compensation, it shouldn't be used to prevent new artistic works from being created even when they are based on existing works. That's how I feel about it anyway, although sadly the law we have today in the US would disagree.
It's not the same person. The face is very different, as is the hair. not the same folds either, look at the white cloth near the flower. It's also a painting and not a photograph. If a painter creates a painting of Grand Central Station has he violated the copyright of the architect? Artists must be able to create, by their own hand, their own versions of things depicted in other works of art or even of other artistic works themselves. (see for example https://publicdelivery.org/fernando-botero-mona-lisa/)
THE TOWER ILLUMINATED Controlled use
The various illuminations of the Eiffel Tower (golden illumination, twinkling, beacon and events lighting) are protected. The use of the image of the Eiffel Tower at night is therefore subject to prior authorisation by the SETE. This use is subject to payment of rights, the amount of which is determined by the intended use, the media plan, etc.
https://www.toureiffel.paris/en/business/use-image-of-eiffel...
Overbroad copyright protections are often granted, but it's never a good thing for anyone except the shortsighted artists who stand to directly benefit from censoring their peers and preventing the rest of us from having a richer culture.
Just because you are using your hand, doesn't mean that you magically are no longer copying
All art is copying. A painter selected a set of colors, choosing some over others, and then used their own skill and a brush to put those colors to canvas in order to create something based on how they saw an object in the world around them. Their subject was filtered by the eyes and perspective of the artist. The artist chose what to keep identical, what to emphasize, what to remove, or when to add something that the subject they were painting never had. The result is something unique that represents the artist's viewpoint.
The photo was clearly the artist's subject, and so it is very similar, but what resulted was not a reproduction of the original. Personally, I like the original photo much better, but I might like another artist's take on it even more than the original photo. That's why we should be careful when granting copyright protections. When artists can freely create new works by reinterpreting the subjects, ideas, and output of other artists we get a more rich and thriving culture filled with different artistic works to choose from according to our own preferences. It's important to police reproductions so that artists can continue to be rewarded for their works, but over-apply copyright and you not only censor artists, you can prevent yourself from having or experiencing something that would have deeply touched you, or even changed you.
You're wrong. I'd agree that minor photoshop edits would be a different story, but this is a painting. Oil on wood.
We want artists to be protected from outright reproductions of their work, so that'd include minor low effort changes in photoshop made just to get around copyright. Artists should be free to create their own versions of existing works though. Copyright is supposed to encourage the creation of art after all.
That's how stories were shared before copyright. Someone would tell a story, and someone else would hear it and later share it with others and each time it was told by someone new changes would be made. Each storyteller would tell their own version, including the best parts from other versions and trying new changes on each audience and gradually the story would evolve as the most popular changes would be included more often and propagate farther.
I don't want to deny that AI artwork is potentially a threat, much in the way that a printing press was to scribes of the time or a camera to painters. And I understand the need to put food on the table. But the only form of protection available is limited at best, by design, and I think many of these people fail to see how they might be infringing on others' copyright under such a harsh and draconian interpretation of it.
I had an acquaintance tell me to either learn how to draw or commission work, when I expressed that Stable Diffusion was neat for people who might want to create visual art based on their text ideas - still requires human interaction, still art in my book. It was kind of a sad lack of reflection given that their own art reproduced trademarked media from certain spicy chili sauce brands.
I think we should add the caveat "yet", to your quote. I imagine it's physiological to control ideas in people's brains if you could accurately and correctly map neurons to people's thoughts.
Copyrights can on some occasions preclude someone from independently creating a very similar work. In the UK, a photographer was found to have infringed the copyrights of another photographer, by creating very similar works. [0][1]
I don't know if this has ever happened in US law.
[0] https://en.wikipedia.org/wiki/Temple_Island_Collections_Ltd_...
[1] https://www.copyrightuser.org/educate/the-game-is-on/episode...
That is my reading of the translations of the ruling, at the end of the thread. It's not "original" enough, and so it's completely unprotected.
Like with http://www.artistrights.info/cariou-v-prince the works consisting of collages, with a guitar pasted over the original work was found to be fair use. In this case the transformative use was a bigger factor, but part of the work was exactly copied, not just derivative.
Leibovitz v. Paramount Pictures Corp is more similar to this case. But in Leibovitz while the poses were the same there were several other factors that were changed to heighten the comedic effect.
it's an oil panting on wood. Not a photoshop. Someone painted it.
Now, the image in and of itself is unique and the other people taking it and just flipping it and saying suddenly "it's mine" is just as ludicrous.
For some context, when Shepard Fairey used an AP picture of Obama as reference for the "HOPE" picture [0], consensus was that it was a difficult case to judge [1] and that Fairey might lose the case even though, in my opinion, it clearly fell under fair use.
This is, of course, US copyright law which is different from other places around the world, so I wonder if a lot of this ruling has to do with it being in Luxembourg.
[0] https://en.wikipedia.org/wiki/Barack_Obama_%22Hope%22_poster
[1] https://www.law.columbia.edu/news/archive/obama-hope-poster-...
In Zhang's case, there is no evidence that a copy of the original photograph by Zhang was included in the derivative work.
Therefore no infringement. At least under U.S. law.
But I still don't understand about Fairey. How did he use the original? Even if he traced outlines to create his image from a photograph, it's still "creating a drawing based on a photograph".
What about Andy Warhol's Marilyn Monroe screenprints https://www.masterworksfineart.com/artists/andy-warhol/scree... ? Original or copyright infringement?
I think the Prince prints from Andy Warhol are a better example [0]. I see a lot of articles from Oct 2022, so is this case still being tried?
Copyright is a quagmire of "rule-of-thumb" policies and, in my opinion, often invalid assumptions. Understanding what and what does not fall under copyright protection is really about what the legal system understands it to be and how to convince a judge. I don't really like arguing "what's correct" when it comes to copyright violation as that's irrelevant, it's really about "what the legal system thinks is correct".
One of the few pieces on copyright that's made sense to me is the "What Colour are your bits?" article by mksala [1] which, if I'm remember correctly, is arguing that it's less about the artifact produced than the provenance of how it was created.
[0] https://www.npr.org/2022/10/12/1127508725/prince-andy-warhol...
I guess the issue is that the authorities need to feign some sort of objectivity and while a human can say “these are obvious imitations/reproductions” they might struggle to define a set of rules you could use to test every case.
Copyright continues to feel weird to me.
And I think there is always plenty of room to discuss what’s legal and what’s right qs two separate things.
https://www.elitereaders.com/ridiculous-paintings-insanely-s...
That being said I think there’s probably a few things that happen sometimes:
1. Money laundering
2. Rich people buying status
3. Rich people figuring out what exactly to do with their money
4. like crypto and other things, it has value because a community has decided it has value. It doesn’t have to make any sense. It’s self-fulfilling.
I think what I want to say is that the world around art is weird to me.
As for money laundering, Jackson Pollock comes to mind.
https://medium.com/@MichaelMcBride/how-jackson-pollock-and-t...
And politicians receiving vast sums of money for their "art." Makes one go "hmmm."
https://www.indiatimes.com/culture/who-we-are/wtf-mamata-ban...
https://www.forbes.com/sites/forbesbusinesscouncil/2022/09/2...
What I think is particularly confusing about art is that in other disciplines, you pretty much never see such things exhibited to the public. Eg, take Perl poetry for instance:
# The Cow
# by Ogden Nash
#
# The cow is of the bovine ilk;
# One end is moo, the other, milk.
#
package cow;
@ISA = qw(bovine);
push @cow, 'moo';
unshift @cow, 'milk';
1) We have a Twitter thread, from one party, emotionally connected and clearly not unbiased
2) What the threat claims makes no sense. It might be correct -- court often rules in ways which make no sense -- or it might be misrepresenting things significantly.
3) Authors' rights are a cultural construct, and the extent and places protection extends depends on culture. The US has done a lot to push its own model of copyright on the world (and to educate kids that it's the only model of authors' rights and a human right). I would like to see more diversity and innovation globally here.
I don't fundamentally see the court's decision as either correct or flawed without a lot more context and primary sources. My instinct is the same as everyone else's -- this feels like infringement -- but I'm situated in the same cultural context.
My instinct with just a few more changes would be different.
If the folds of the dress, arrangement of flowers, and strands of hair were not placed the same, I'd consider the new work a sufficiently new work to not be infringing. Fundamentally, I'm a fan of building off of other's work and various forms of "resampling," so long as the result is sufficiently derivative, unconfusing (e.g. can't be passed off or confused for the original artist), and doesn't compete directly with the original work. I support a very broad interpretation of fair use. I've also been in countries where copyright is ignored, and where it's draconian, and I can tolerate other perspectives.
In opposition to a place like Germany, where you can't ever fully reassign copyright and always retain some rights (Urheberpersönlichkeitsrecht), for instance to object to a use that reflects badly on you or to insist on being credited. Some of these rights should really be standard; the games industry for instance makes it a habit to strike people off the credits as punishment for leaving a project early or attempted unionizing (as attempted with Raven Software QA workers recently).
At some point, look at the git history for who wrote Open edX, and at some point, look at the git history for who created the first edX course. Compare that to the official narrative, and try to find their names anywhere in PR materials.
https://github.com/openedx/edx-platform/commits/master
http://groups.csail.mit.edu/mac/users/gjs/6.002x/6002x.tar.g...
The first issue here is that she never registered her original work with any copyright registry. It's $55 for 750 photos for the US Copyright Office, which is more or less accepted worldwide. (Also, she's living in the US and working there.)
That leads to the second issue which is that it is now impossible to determine if the painting is a derived work off her photo, or if it is a derived work off one of the countless other images on the web that look pretty similar. (She can't argue that the artist should have know her photo because it wasn't registered)
Together, she's relying on implied copyright (because she didn't register) and arguing that she's famous, so it has to be her photo.
And to that, the judge replied that the photo is not unique enough to make that "it has to be my photo because I'm famous" argument work.
Do the images look similar, like it's the same person? Yes, but that's likeness rights, which the photographer can't sue for. The photographer can only sue for unique aspects in the composition and I'd agree that it is a pretty generic model shoot with pretty generic decoration and a pretty generic pose.
The women depicted in the photo could probably sue and win. But she didn't. This is only the photographer suing.
More info: https://www.tageblatt.lu/headlines/affaire-dieschburg-zhang-...
You don't have to register your art (including photos) to get copyright protection. Otherwise, poor people would get the screwed over even more - $55 is around a day's labour at minimum wage. Requiring registering just paves the way for companies to steal poor people's art and photos. Registering is completely optional, though it will sometimes help if you need to sue. There are other ways to prove stuff ownership, though.
Also, she should have been suing to declare the painting a derived work of her photo. Drawing it was clearly transformative, so it's not a pure copyright infringement. But as a derived work, she would be entitled to receive revenue share from the painter. It's just that for that whole derived work thing to work, her photo needs to be registered first.
I did some image searches to find out if this photo was an ordinary reproduction of something commonly done but found only references to this case and a few references to Zhang's other work. Where/how did you find countless other pretty similar images?
It's also fairly possible to demonstrate that it's a derivative work and that the artist would have had to have used the photo as a reference because the painting is a 1:1 reproduction of the photo, it's actually impressive how well it's reproduced. Flashing image warning: https://i.imgur.com/RERFdBZ.gif
As a nitpick, in this post you're saying it's a derived work but in a child comment you're saying it's a transformative work so it's not 'pure copyright infringement'. In pretty much every country, producing a painting using a reference photo is derivative and is 100% covered by copyright law to the point that it's the example legal scholars use to demonstrate what a derivative work is. It cannot be the case that the photographer can sue for revenue on the painting without it being a copyright violation because that's the legal mechanism for which the photographer has any rights to sue the painter. However that's not the case here, because the court ruled that the photographer has no rights or protection under copyright law because the photo was found to lack the creativity or uniqueness to be afforded protections by copyright law.
As far as 'transformative' goes, it's not a concept that exists in my European countries legislation, but it's a term legal scholars use to demonstrate when a derivative work can be considered fair use using vaguely defined terms such as whether the work substantially changes the 'meaning', 'emotion', or 'aesthetic' of a work, and examples of this are things like reviews or criticism of a work (e.g., movie) or things like a parody. Merely reproducing a photograph is not considered transformative enough to be considered fair use, and even making substantial changes to the photograph may not make it transformative enough to be considered fair use, much like taking a photo of an artwork is not transformative, producing a movie from a book is not transformative, transcribing music is not transformative, etc.
No, the implication is that if you register your work for explicit copyright protection, you have more legal protection than the unregistered implicit copyright protection.
> As a nitpick, in this post you're saying it's a derived work but in a child comment you're saying it's a transformative work so it's not 'pure copyright infringement'.
Correct. Because it was transformed, it's a derived work.
> the court ruled that the photographer has no rights or protection under copyright law
The court only ruled that the photographer cannot stop the artist by saying this is a direct reproduction of her work, which it isn't. The court may well grant her a revenue share, but that's not what this trial was about.
> transformative enough to be considered fair use
Yeah, transformative is on a spectrum. If it is a bit transformative, you get a derived work. If it is a lot transformative, you get a derived work and the fair use exemption from paying the original artist.
The painting is obviously derived from the photograph. The defendant's lawyers didn't even bother to argue otherwise; anybody with eyes can see. I would also argue that a photograph that apparently can be turned into Turandot by the addition of a sword hilt and an earring can't be that generic.
The article you link was cited in the original thread and completely lines up with the photographer's claims. None of your additional claims from this comment are in the article, so I'm not sure why you're citing it.
In this case the court claims this is an ordinary photo, not an artistic work; okay, that means one should easily be able to find hundreds to thousands of similar photos taken and disseminated in non-professional contexts. Image searching the internet through several search providers brings back only references to this case and more of Zhang's work.
It should also mean that Jeff's pieces are not original art work, do not get copyright protection either, and are essentially art fraud. This ruling should open him up to getting sued by anyone who thought they were buying an original art piece, only to find after this ruling that they bought an average Joe's random photo, this should include the gov't supported exhibit, which should want to revoke Jeff's prize.
With this ruling there really are not two ways about this. Either Zhang's work is original and Jeff copied it without asking, or Jeff's work is not original either and therefore isn't worthy of winning a prize or being sold as original art work.
"Copyright" is a concept from countries of "common law" (essentially the US). Most of Europe are _not_ common law countries, and have their own "author's right" systems with very different philosophies and applications.
Copyrights are somewhat enforced in Europe as a matter of facilitating trades with the US by carrying over corresponding authorship protections.
It seems the author here is shocked that US copyright law is not enforced verbatim by the rest of the world... No thank you.
For most of Europe, author's right is a given, you don't need to apply for it and pay a fee.
To me, the US has a very bad track record of legislation around patents and copyrights which is poisoning them. I would very much like it to be contained to the US and not spread elsewhere.
This is a 1:1 replica of the original, "printed" by hand, presented as own, and sold.
The ruling here does not contest that what was sold is a close replica of the original.
What was ruled here is that the original author was not able to convince the tribunal that there was enough originality in the creation of the photograph to have it protected against copies in the first place.
My interpretation from the article:
- The law differentiates "skill" from "originality"
- The author had to prove the originality in at least one aspect of the photograph (lighting, pose, post effects, palette, etc)
- The tribunal found that the proof of originality was not convincing, and declared the work as "skilled" but not "original".
- Thus the original photograph does not represent an original work of art, and can be copied freely.
Here is what the tribunal had to say about the proof of originality that were presented:
> Aucune précision n’est ainsi apportée quant à la composition et l’organisation de l’image, son cadrage, l’angle de prise de vue, le choix de la luminosité, le travail de réflexion du photographe, la mise en scène réalisée, la technique photographique mise en œuvre, etc., à part la remarque qu’il y aurait eu une ‚post-production‘ de la photographie, qui n’est cependant étayée par aucune précision quant aux travaux éventuels effectués et qui constitueraient une manifestation, voire expression de la personnalité de Jingna Zhang
Apparently the arguments of originality provided by the photograph were vague and non convincing, essentially revolved around post effects, but these were not detailed enough.
Apparently the defense was also able to provide numerous photographs from other authors that were close enough to reinforce the idea that it was not such an original work of art.
I'm not a lawyer, but my personal rule(s) of thumb are: - Could you create this work by accident? (clearly no) - Could it be mistaken for another work? (hers not that I know of, his clearly)
She is right that these expectations effectively mean most portraits are not original and anyone can copy them.
Namely:
- Artist: hey, that violates my copyright!
- court: okay, what was copied then?
- artist: well isn't that obvious?!
- court: if it is, you should have no trouble pointing it out...
- artist: well, the pose, the composition, the lighting.
- court: ok. Hey defendant, are you coping copyrightable pose, composition, or lighting?
- defendant: naah dudes. Here, have a look at this bunch of works with the same pose, these lot with similar composition, and these with roughly the same lighting. Why there's even an old Dutch master in that last batch! Original, my ass.
- court: hey artist's lawyer, we're not here to rule on what we think, but on the legal merits of your claim. And your claim has been thoroughly debunked. Sorry, kthxbai!
Note that the crux is in the last part: legal aspects of the claim. If the court had ruled in favour of the artist, they would have to have been able to point out how this work violates copyright, but other similar works don't. And it seems the artist's lawyer didn't supply the court with enough detail to allow them to draw a legal border between what are copies of this work and what is original.
TL;DR: Courts don't rule on the merits of a case. They rule on the merits of each side's arguments.
Is that what they teach in US schools? The common law originated in England and is used there and in many places that were influenced by the English justice system: the US, Canada (except Quebec), India, Australia, Israel and about a third of the world.
That’s how it works in the US too.
You can register a copyright if you really want to but it isn’t necessary to obtain a copyright on your work. There’s also a bunch of exceptions to this in order to keep a copyright beyond the original term when they previously changed the laws which is how the happy birthday song folks finally lost the ability to sue everyone under the sun.
In Germany for example (this will ignore a lot of nuance!), there is no applying or denying of copyright. If you created something, you own the copyright. It is even in the German name: "Urheberrecht" literally translates to "right of the creator". It can not be sold. And then there is the second concept of "Verwertungsrecht" or "Nutzungsrecht", which defines who has the right to "utilize" something (often for monetary gain). That fundamentally also starts with the person that created something, but can be sold (either before or after the work is done, for example via a contract).
As far as I know the US copyright system is very different from that, where you have to register or apply, and put (c) on things to show you own the right to moetize (this is even more vague, that is just the impression I got in the last 20 years of being on the internet).
In Germany the big discussion then is around "Schöpfungshöhe" - "threshold of originality" in English maybe - that decides if something is even in this system or not.
Is the discussion in the tweet about that really? If the work deserves to be in the system or not? If so, for "right of creator" or "right to utilize"?
They're signatories to the Berne Convention[1] which gives you automatic copyright on "every production in the literary, scientific and artistic domain, whatever the mode or form of its expression" and also gives you control over rights for "the right to make adaptations and arrangements". Which I would understand to mean they can't say "copyright is void because of XYZ" - it was created, it is copyrighted. I'd imagine WIPO would slap this down.
> As far as I know the US copyright system is very different from that, where you have to register or apply
Since they're signed up to the Berne Convention, copyright is automatic but apparently there is an allowed "requirement that the right holder of a “United States work” have registered the work before initiating a lawsuit" (from [2])
[1] https://www.wipo.int/treaties/en/ip/berne/summary_berne.html
[2] https://www.mediainstitute.org/2009/10/20/borderless-publica...
Then the "German" way of doing things is actually _the_ way of doing things, and the US just hase some additional stuff on top.
That also clarifies the twitter thread to me: This was about a _court_ ruling, not some copyright office deciding if something is copyrighted or not (which I assumed because I thought about the German way being special, and my misguided understanding of the US system being the international standard).
I also realize now that further down the twitter thread this is made more explicit. I should really have read more then the first 5 tweets. Sorry.
GP is partially incorrect; you can bring a suit regarding an unregistered work. In such cases, however, you cannot claim statutory damages, but are limited to claiming actual damages (actual money lost or actual profit from the infringer). If the work is registered within the alotted time, you can claim statutory damages and attorney's fees.
You can register within 1 month of learning of the infringement to protect your ability to claim statutory damages and attorney's fees.
But that's not the case here. Ruling that the photograph cannot be copyrighted because the pose is not unique is not something I have ever heard of occurring in any case for a Berne signatory until now, and I do not understand how that ruling is compatible with the fundamentals of copyright established within it, though I am a layperson and not a lawyer.
There's a lot of people arguing about how the painting isn't an exact copy, but that's irrelevant - copyright is a lot farther ranging than just ctrl+c ctrl+v'ing something. It's true that something as nebulous as "style" can't be copyrighted, but I could not take the latest Avengers movie, animate it in black and white with subtitles rather than audio, and be free from infringing on copyright. The painting is clearly a derivative work, and if the original photo had copyright protection, the painting would clearly be infringing.
But, bizarrely, this court appears to have ruled that the photo simply cannot be copyrighted, purely because of the pose of the model. If a unique pose is a requirement for a photograph to be copyrighted, then this renders the vast majority of portrait photography uncopyrightable.
I can't imagine this ruling would be upheld upon appeal in most countries that have signed the Berne convention.
> As a Luxembourger, I am sadly not surprised by this. Dieschburg's lawyer is a well known figure (and well respected by many) with a solid amount of anti-American and racist bigotry.
> As an Asian-American woman, being up against a white Luxembourger, with the country's most prominent lawyer, on a Luxembourg court with a Luxembourgish judge, the outcome was almost inevitable.
Yet a painted replica of the photograph was apparently original enough to win a prize and be put up for sale at a gallery.
This decision is completely absurd, so there must be some reason why the court decided the way it did.
The explanation that a Luxembourg judge at a Luxembourg court decides in favor of a Luxembourg man who just won a Luxembourg price and is represented by a popular Luxembourg lawyer just sounds very plausible.
Judges are humans too, and they are not infallible, so it seems plausible that this has something to do with the decision.
What seems most plausible to me, is that we, aliens to Luxembourgh copyright law, outsiders to the court case, unaware of the actual text of the ruling, jump to unfounded conclusions based on our gut feeling and superstitions.
Maybe there is something in the proceedings that explains the absurd ruling, but I really doubt it. We'll see how the story plays out. I don't think this judgement will hold.
Luxemburg is not some random backwards country
If you're going to claim racism and "anti-american bigotry" "plausible", you need a bit more than just a rando on Twitter making such claim. Who's the person tweeting what you quoted? You don't know. What's the exact ruling? You don't know.
Accusing a court of racism against 'asians' and 'anti-Americanism' is a serious accusation.
Not only that, but you are finding 'plausible' a collusion between the lawyer and the judge who made the verdict? it is simply preposterous, not "plausible".
This is an article that goes deeper into the court decision, without resorting to identity politics (in French).
https://www.tageblatt.lu/headlines/affaire-dieschburg-zhang-...
Basically it says that in that specific country, photographs that do not demonstrate some degree of originality aren't protected by a copyright law from 2001 (when it comes to plagiarism which is obvious in that case).
Perhaps some cheeky person with ready access to such machines might flood the market with clone's of everything Jeff does and see how he feels about his own source of income being so easily taken away. Just a thought.
(Spoiler alert: I did it anyways, among other things.)
Many artists seem to think the protection is thicker, but here we see an example of doing a painting based on a photograph being sufficiently transformative.
I'm not familiar with Belgian copyright law so I can't really comment on how reasonable that ruling is. Under American copyright law it would be absurd.
As I understand it, this is a case in the country of Luxembourg, not the Belgian province of the same name.
From the thread _I guess_ that she took a standard pose of a model, then someone else came along and posed the same model in the same way?
If that's right, then the Luxembourg courts would be upholding a quite long standing position.
The following is entirely my personal opinion and in no way relates to my employment.
Consider if ordinary poses were considered creative enough to be copyright works: the first person who took a square-on head and shoulders would own the rights to that pose and no domestic-style face-on photos could be taken without a license (or, what are we at now, until 70y after their death).
Consider if you couldn't hire a model someone else had hired [to shoot standard poses], the first shoot they did might have to be their last. You'd have to pay them enough to cover their entire career; if the photographer kept the copyright (outside USA-style Fair Use) that person could never take photos of themselves again.
https://www.theonlinecitizen.com/2022/12/08/singaporean-phot...
So roughly the population of Detroit, or Glasgow City?
/s
Just abolism this censorship nonsense. Culture wants to be free.
that said, i agree with the ruling. there are chances that other artists who haven't seen her art before would come up with that scene. or that specific pose. not the other artistic choices, but the pose and the flowers, and even the kimono, yes.
Cross-reference Andy Warhol's famous silk screens. For example, the reproduction of Elizabeth Taylor (https://www.sothebys.com/en/articles/andy-warhol-and-his-pro...) was sourced from a 1950s publicity photo.
(IANAL, but personal opinion: appeals whiffed on this one and SCOTUS is going to give them a gentle wrist-slapping. Yes, there is a certain aspect of deciding the transformative nature of a work that requires the judge to step into the role of art critic. The nature of the test is to decide if a new work adds significant creative elements, and that's inherently subjective; the existence of the test doesn't let a judge dodge the art-critique responsibility).
"Transformative" being an affirmative defense for copyright infringement is precedent (Campbell v. Acuff-Rose Music, 1994).
The copies are not "inspired" from the originals. They are copied, flipped vertically, changed in hue, and have some earings or tattoos added.
If you paint a copy of Mona Lisa, it will be under your copyright, because of the provenance. There will be no doubt that it's your work, not Leonardo's.
It's a combination of the changes and the new medium that make it transformative.
It's worth noting here that the court in question did not address whether the painting is a derivative work, but whether the photograph itself was creative enough to earn copyright protection. The idea that it isn't is even more outrageous than the idea that the painting isn't a derivative work.
[1]: https://twitter.com/zemotion/status/1602206042523590658
Either way, legally at least, you're right that many places wouldn't consider making artistic changes to be enough. I feel that artists should be free to create new derivative works however. All art is derivative and the purpose of copyright should be to protect artists from unauthorized reproduction, not prevent the creation of new artistic works. Copyright's original goal was to encourage the creation of new works, it's just been twisted over time into something that too often does the opposite of what it was created for.
I agree that it's crazy that they didn't think photo should have any protection under copyright. It shouldn't matter how unoriginal it was, it's still clearly a work of art. It could get a little more complicated when you're talking about a photo of a very common thing (like a popular landmark) where it might be hard to tell the difference between two people's photos of the same thing, but a photo taken of a specific model at a specific time under specific lighting etc. that seems plenty unique enough to me.
For the sake of argument, let's say that Zhang also created an NFT of her photo. What's to stop Dieschburg from right-clicking it and publishing his own "NFT" of that work?
Sounds unlikely that would merit copyright protection.
Edit: but that being said, the painted portrait is pretty much an exact (mirrored) copy. That definitely does not seem correct to me.
An artist thinks that her unique genius means nobody else should be able to do "pose where model looks over left shoulder holding flowers". Humbug!
That school of thought has forgotten that the original intent of copyright was to encourage creation, not to allow a cabal of rent-seekers to prevent it.
Either...
- Her lawyer fucked up drafting the lawsuit
- The court horrifically misunderstood her claim, and will be smacked down on appeals
- There's some context that has been intentionally omitted (but I doubt it - I mean, the claim fits into a single image and tweet)