Lots of posters here seem to fundamentally misunderstand the basics of copyright protection and derivative works. So many replies about the example here not being an “exact copy” and therefore “obviously” not deserving of protection. I wonder if maybe all the talk over the last 20 years about copyright infringement as it relates to digital piracy and “exact copies” has perhaps confused people into thinking that exactness is a necessary part of copyright infringement. It’s not. Some very common examples you see every day. When you make a book into a movie? You need copyright holder permission. When you take sheet music or lyrics and make a song recording? You need permission of the copyright holder. These aren’t exact copies they aren’t even the same mediums.
And clearly the Luxembourg copyright system doesn't work that way? Maybe in Luxembourg, copyright only exists in much more limited situations?
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 comments I’m talking about are not speaking about Luxembourg they are speaking (incorrectly) about the US and copyright in general. Also the Luxembourg system does work this way. In the case discussed here, they simply said the underlying work was itself not deserving of protection. Were it ruled deserving of protection, the derivative works would have been infringing.
> And clearly the Luxembourg copyright system doesn't work that way? Maybe in Luxembourg, copyright only exists in much more limited situations?
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.
I think the ruling is probably much more complicated than the simple statement that it was on pose alone. Whether or not the similarities between the original and derivative work meet the criteria for the Luxembourg equivalent of Fair Use is probably a better discussion.
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.
I'm not sure anyone is thinking of copyright 'in such a limited way' in this particular thread? the parent comment was regarding comments on this post implying or explicitly stating there isn't an issue because there isn't a material duplication.
Knocking off a book by changing some character names is common. So in spirit, yes you can't make a movie based on a book without licensing. In practice we have stealth book adaptations without license. We even have movies licensing a book, and then ignoring everything EXCEPT the names of few characters.
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.
I don't really understand, I'd think that complete reproduction of her photo should be prohibited under copyright. No one should be able to take copies of her photo and paste it onto whatever product they want to sell for example. If her exact photo has been denied copyright protections I'd agree that's a problem.
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.
How is it only "inspired" when it's not only the same pose, but the same person and the same clothes, up to its individual folds. "Inspired" would be inviting a model to wear the same thing and take the pose, and painting that. Here, it's a reproduction of the mirrored picture, with different colors and trivial changes (like the earings). Calling this inspiration is utterly ridiculous.
I agree, it is far beyond "inspiration". Next to zero changes: same type of flowers, identical thinness of straps, hair up in a loose bun with strands spraying in very similar locations, folds in the fabric carbon-copy identical. Even the eyebrow, with its slight heaviness on the straight part, is the same. Dude made her eye a bit more slanted, wow. This is saying anyone can flip, photocopy, and color someone else's work, making the most nominal changes, and it's suddenly an "original."
Tbh, what I perceive as “art” in the original work is still unique and wasn’t copied into the reproduction. It’s a copy of hair, face and clothing configuration, which is non-unique and a strange subject for copyright. I mean this is obviously borderline, but still a subjective issue.
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.
Essentially any movie adaptation of a book can't be copyright infringement based on this being the bar; even cases that keep many lines of dialog verbatim end up just being detail similar to keeping the exact same folds of fabric at the bottom.
> Essentially any movie adaptation of a book can't be copyright infringement based on this being the bar;
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.
> but the same person and the same clothes, up to its individual folds.
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 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.
This sort of copyright absurdity warrants flouting the rules as often as is realistically possible. It may be an overreach backed by law, but that makes it no less of an overreach.
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.
The flowers are arranged identically in the painting to the photograph. The differences between the two are trivial. The hair is certainly not "very different" and the face is similar enough to be a copying by an imprecise hand. This isn't a painting of Grand Central Station, it's a photo of the Mona Lisa.
https://imgur.com/8OoQFr8 the image is composite of 50% the photo, 50% the painting. (with re-alignment, the flowers are also a perfect match, same for the clothes, etc.)
Just because you are using your hand, doesn't mean that you magically are no longer copying
> 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.
There are clear differences between the painting and the photo, multiple things were added and removed. You might not place much value in them, but that's purely subjective. I must place more importance on those changes than you do because I have a preference for the photo over the painting. Objectively, those changes do exist regardless of how we feel about them.
It's clear that one is a mirror image of the other with minor Photoshop edits. I think it's clear to just about everybody. I don't believe you are arguing in good faith.
IANAPS, but I don’t think these are minor ps edits (or that it’s even ps) after overlaying the two and sliding the opacity. That’s a grey area no doubt, and the source of “inspiration” is clear, but you’re probably overtrivializing it.
I don't think the claim is that it's literally Photoshopped. It's a painting. It could be a painting of a Photoshopped version of the photo, or the changes could have been made while painting. There isn't any legal basis for distinguishing between digital and physical works here -- a copy is a copy, and a physical copy with alterations is as much a derivative work as a digital copy with alterations.
Would you consider an oil painting that exactly duplicated the photograph to be sufficiently different to not be covered by the original artist's copyright?
I think if the painting were perfectly identical than it'd be just a reproduction and it should violate the photo's copyright, but even if such a thing were possible for a very skilled artist to pull off, I don't think that'd be something that happens very often. I'd guess that most artists would have a hard time not making changes.
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.
OK. You should make it clearer that you're arguing for a weaker system of author's rights, not just making claims about the current system. I favor copyright reform but what you're suggesting would destroy the ability for artists to commercially exploit their work.
The difference is between crafting something transformative and a reproduction. If you simply typed up the same story (even with minor changes) you haven't created anything. Turning a typed work into a typed work isn't really meaningful. A better analogy might be if you retold the story yourself aloud, from memory, making changes by adding characters and omitting scenes that you didn't think were as exciting and adding new ones.
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 agree. I am part of the local art community and there is this meme idea floating around that the artist owns everything about a work they make, even the idea. At present people are using this to bash on AI art and decry it as stolen. But this is mistaken, both from a legal sense (many aspects of a work are not copyrightable), and in a physics sense (you cannot control an idea in the minds of others, information wants to be free, and so on).
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.
As both an artist and an AI person for my dayjob, this is spot on. People are losing their minds (esp. on twitter ) but really it’s exactly identical to the painting to photography transition.
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.
>"and in a physics sense (you cannot control an idea in the minds of other,"
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.
> 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.
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]
The case law in the US is favorable to the newer artist in many cases, the four factors of fair use would be in the newer artists favor for a one off piece of art based on a reference.
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.
Because what they did wasn't original. I've seen this pose, this "look", this everything thousands of times over before this person was even alive. To claim this whole thing is copy-writable is ludicrous.
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.
This seems to me to be a pretty clear case of copyright infringement. As others have pointed out, looking at the picture side by side it's nearly a copy, with details of the neck shadow, hair placement and clothing kept almost verbatim.
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.
At the end of the thread there are translations from the ruling. The Luxembourg court didn't rule "this is different enough not to infringe", they ruled "the photo doesn't have enough originality to be covered by copyright" and so even an exact copy would be legal.
The difference is that Fairey used a copy of the original Obama photograph in his work. Thus he violated the copyright of the photographer, Mannie Garcia.
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.
I guess one way to look at it is, if the original work (the photograph) was in the public domain and the derivative work was created (the painting), would the artist who created the painting still be allowed to claim copyright over it.
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".
Your question encapsulates the issue: where do we draw the line? To see copyright laws whether the letter or the spirit of the law is left to pretty murky opinion maybe moreso than other case law. Traced a copyrighted photo, now it's new, but it's heavily derived from someone else's copyrighted IP, etc.
Yeah, so maybe it's a lot murkier then we all understand. From a previous response, it looks like this case sidestepped the issue by ruling the photograph was not original enough so didn't fall under copyright protection (I guess?).
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.
I think you are misunderstanding what a derivative work is and what is required for something to be considered one. Read the examples in the link you posted. Many of these don’t incorporate a literal direct copy of the underlying work.
That is an unoriginal pose. Which is why it seems ridiculous that a copyright would be based on pose. There’s still a lot of originality present.
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.
I’ll agree that the pose isn’t original, but at the same time Jeff Dieschburg should be shamed forever for his blatant rip-off of her work. It’s the friggin The Office meme, “They’re both the same.” What an ass.
I don’t understand a lot of these pieces. But I’ve also experienced tremendous emotion over something that I try to share with others who give the same kind of “uhh what?” response. So I accept that I’m probably not the audience.
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.
Think of it this way: props from the original Star Wars films fetch millions of dollars at auction. Most movie fans and even most Star Wars fans would never pay that much for a prop. But you can understand wanting to own part of a piece of history. Now, consider these paintings are props for a movie you haven't seen yet, a movie called 'the history of art'. Perhaps if these pieces had a significance to you beyond their visual appearance, it would make more sense why they could be so valuable (to a very small minority).
A lot of art is part of some sort of conversation that those in the know had, and so it makes sense to them, but those outside that scene have no idea.
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';
Now imagine somebody framed that and hung it in a museum and normal people trying to understand what is this all about.
"Particular art pieces sell for ridiculous prices because of the strange world of art investment" is a reasonable opinion to hold. But the article is just "wow, Rothko sure is shit."
I will point a few issues with this whole discussion:
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.
The US copyright model is for the advantage of rights holders (i.e. die Disney corporation), not individual creatives. Especially when many creatives do not work alone and contribute their output to a larger product (like a movie). Their inclusion as individuals seems almost incidental.
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.
The point was more about deliberately withholding credit as a form of punishment. That many less deliberate instances of this would (and in Germany, do) occur even if such a legal obligation was in place is clear, it's just a matter of them being actionable.
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.
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.)
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.
Yes, poor people are being screwed over. You lose a whole set of available remedies in court if you don't register "timely". It's about as optional as health insurance. You're not forced to do it, but if anything goes wrong, you'll dearly regret your decision.
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.
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.
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?
If the court ruled that the work is not creative or unique enough to qualify for copyright protection, then why does it matter that the work was not registered with a copyright office? The implication of this would be that foreign artists would have more legal protection and rights in Luxembourg than Luxembourgers.
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.
> The implication of this would be that foreign artists would have more legal protection and rights in Luxembourg than Luxembourgers.
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.
Luxembourg is a signatory to the Berne Convention, which requires automatic registration of copyright and forbids requiring formal registration. (The US was a late signatory to the Convention and arguably is still in violation.) Author's rights under Berne include an exclusive right to reproduction of the work or any derivative works.
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.
Flipping the question around exposes the court's bias towards their own.
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.
I don't quite understand the exact case that is being ruled here.
"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.
As an European, I don't see the problem with what's being argued here. The photo is art, as is, and it should be automatically covered by copyright. You can't download a photo and sell it.
This is a 1:1 replica of the original, "printed" by hand, presented as own, and sold.
> 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.
It's an idiotic expectation because you can't prove that somebody out there hasn't done what you have. It should be assumed until proven otherwise.
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.
That actually makes some sense of this situation. Not saying it's an okay ruling, mind you. But I can understand why the court arrived at this ruling.
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.
> "Copyright" is a concept from countries of "common law" (essentially the US).
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.
> For most of Europe, author's right is a given, you don't need to apply for it and pay a fee.
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.
US copyright law is harmonized with the Berne Convention. European countries might use a different term but I don't think the differences come into play here.
Oh, that cinches it: Jeff Dieschburg is a word I can’t use here without being banned. My hope is that he is drummed out of the art world, that he is repeatedly sued by the original artists, and that his name lives on in disrepute. What an absolute turd of a human being.
Copyright addresses a real issue but at the same time creates new issues. It's not obvious to me that a world without copyright is better than one with it. Just because something solves a problem doesn't always mean that it's worth doing, if the costs are too high.
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"?
> How does the copyright system in Luxembourg work?
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])
Thank you so much for doing the research and explaining this.
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.
Important nuance, thanks for letting me know.. I was under the impression you only "got" the copyright by doing that. Do you "forfeit" anything by not doing it as soon/early as possible?
Copyright in the U.S. is immediate upon creation of a work.
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.
There was a clear precedent set many years ago when an artist did this exact thing and lost in court. The photograph was of a Native American in profile with specific headgear that was copied into a computer illustration. We are talking 1990s here. No idea how to find it.
That was interesting nevertheless. We really could do a massive public service by finding that case. The illustration won an award - advertising I think - and that's how the whole issue came to light. The illustrator genuinely didn't realize he was infringing on copyright as he was working in a different medium.
Bizarre. I can see the argument that artwork or photography using the same pose is not infringing, and I've seen quite a lot similar poses used in photography and art over the years.
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.
I think this reply from @mezoliad has the most plausible explanation why the court would rule in this way:
> 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.
Why? You fail to mention your assumptions about Luxembourg judges that underlie the "plausibility" and "unsurprisingness" of this outcome. Can you maybe share your argument with the curious reader?
The court argued that the original photograph was not original enough to warrant copyright protection.
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.
Yes, there must be a reason. It's described extensively in the proceedings of the case.
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.
You seem to have a lot of trust in the Luxembourg district court :)
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.
No, it’s a very special country with almost all of its lawyers on retainer for Paypal. But, since Paypal only answers to litigation inside Luxemburg, there is a problem. If you try to sue them there, you will have a hard time finding a lawyer who will represent you.
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).
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).
This is NOT the US (or any common-law jurisdiction) where it sets a precedent. Civil-law jurisdictions don't have a concept of precedents, they always look at a case based only upon law.
I think that’s not quite right. Precedents have a lesser role but are definitely relevant. My law classes in the Netherlands extensively covered important rulings as a way to interpret laws.
Now even more fun question. Does the derivative work in this case have copyright? As original doesn't and it substantially copied it. So one probably would consider that new work can't be original and unique enough either.
Given that most of Jeff's pieces seem to be painted knock offs of other artist's photographic works, it seems to me that one could set up a cnc painting bot to copy nearly all of Jeff's work with minor variations at best and the Luxembourg court would have to consider that at least at legit as Jeff's own work.
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.
This is somewhat demonstrative of how thin-on-the-ground copyright protection is relative to where creators want it to be (especially when considering what AI-generated art does to the industry).
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.
It's not the the painting was found to be sufficiently transformative, but rather that the photograph was ruled to be ineligible for copyright protection in the first place.
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.
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.
Nope. Zhang took a photograph of a model, and the guy in Luxembourg basically copied the photo in a painting, no new model involved. This article has a side by side comparison:
She didn’t ask for copyright on the pose, she asked for copyright on the entire thing. The robots in Luxembourg were the ones who argued the pose isn’t original. That’s why you need human beings to do such an evaluation, many aspects of the picture need to be taken together at the same time in order to determine the originality. Any minimally reasonable human being can see that the person stole her work and sold it for profit.
The pose is only one of many creative elements in the portrait, and if the painting had simply replicated the same pose nobody would have even noticed, much less cared.
not an artist but, reading between the lines, her real fight is against people who are copying. and profiting from her work.
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.
The face of the person in the painting is recognizable across the copying, I don't see how it can not be a copyright issue. Clearly cribbed her work completely and changed some color and details.
This is kind of funny, given that "Estate of Andy Warhol vs a photographer of a picture he used" is in front of the supreme court right now, suggesting it might not be that clear-cut?
The question of whether something is transformative isn't always clear-cut, but when it is ruled transformative, it's independently copyrightable.
(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).
I think we can possibly see a difference - the face crop of Elizabeth Taylor could be regarded as generic, without artistic detail ("not original") while in this case the original photo with posture, composition, face, flowers, details together make it an original artwork with its own character.
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.
That’s actually incorrect. In your example it’s fine only because the painting is old enough to be in the public domain. In general (with rare exceptions) you can’t paint an exact copy of a work under copyright and then utilize that copyright without permission of the original copyright holder. What you’ve created is a “derivative work.”
The flowers are arranged identically. The folds of fabric and hair are identical aside from a few trivial changes. It looks like a lightly photoshopped version of the original. Far too similar for chance.
It's not photoshop. It's an oil painting of a photograph, so of course it looks similar to the photo, but it also has several changes and it clearly took skill to paint. In fact it won some kind of award for how skillfully it was painted.
It's a combination of the changes and the new medium that make it transformative.
I can't agree. The changes are trivial[1]. An oil painting reproduction of a photograph is a derivative work, which makes this an unauthorized derivative work. The amount of skill involved in creating the reproduction is totally irrelevant, and a derivative work being transformative does not remove the original creator's rights over the distribution of derivative works.
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.
I don't personally don't feel that the changes are trivial, since I find that I have a strong preference for the photo over the painting, but that's subjective.
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.
How would NFTs have solved someone copying your work?
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?
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.
This isn't copyright maximalism; she's suing someone who literally just made a painting of her photograph. If you can't sue over that, then you own basically nothing, and copyright is effectively abolished.
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)
