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Monday, 19 March 2018

Swedish Supreme Court says that painting based on photograph is new and independent creation and hence … non-infringing

Mr Lemberger's picture (left) 
and Mr Andersson's painting (right)
Exhausted after several days of intense work, I (finally) afforded the luxury of watching some TV. Zapping my way through the channels, I stumbled upon something called “Domstolen” (ENG: “The Court”), a reality TV-show in the form of a reportage, based on somewhat recent court cases and judicial developments in Sweden. Just as I was about to zap away to the next channel there appeared a case concerning copyright infringement.

The case reported is colloquially known as Swedish scapegoats – a case from 2017 that made all the way up to the Swedish Supreme Court, and concerned a copyright dispute between the author of a close-up photograph and the author of a painting that was based on that photograph.

Markus Andersson is a Swedish artist who primarily paints images in oil and watercolor. In 2006 he was invited to exhibit his oil paintings at the Moderna Museet in Stockholm (The Museum of Contemporary and Modern Art). Mr Andersson exhibited a number of oil paintings of Swedish people, represented as scapegoats (a scapegoat is someone that is used to lay the blame on for all that goes wrong). Amongst others, there was a painting depicting the prosecuted – but subsequently freed of charges – Christer Petterson, ie the alleged murderer of former Swedish Prime Minister Olof Palme.

The portrait used as a basis for the painting of Christer Pettersson was a photograph by Jonas Lemberg. Mr Lemberg had followed and photographed Christer Petterson for a few days in 2005. One of the photographs taken by the Mr Lemberg was a close-up portrait of Christer Petterson that was consequently circulated on Swedish media.

The painting

The painting used dull colours in a rugged landscape and – compared to the photograph - featured a goat depicted in the upper right corner in the background. A photograph of the painting was subsequently uploaded onto Mr Andersson’s website and also sold in poster format.

When finding out about the painting, Mr Lemberg claimed that the artist had infringed the copyright in his close-up portrait of Mr Christer Petterson. 

The District Court and the Court of Appeal’s decisions

The Solna District Court held that, because main focus of the painting was Christer Petterson, which was also the case in the close-up photograph, the painting could not be considered a new and independent work, but rather an adaptation of the original work. This was the case despite the alteration of the environment, such as the dull colours, the rugged landscape and the goat. 

The Court of Appeal, however, held that the painting could not be regarded as an adaptation of the close-up portrait but rather as a new and independent work. In the Court of Appeal’s judgment it is stated that “the face of Christer Petterson has … been highlighted and the face seems less angular than in the photograph. In addition, the colours in the painting are more subdued and adapted to the background, which also causes some differences in how the light falls over the face”.

The Swedish Supreme Court

The main issue subsequently raised before the Swedish Supreme Court was whether the work in question should be regarded as an adaptation of the photographer’s existing work or rather as a new and independent work.

According to 4 § of the Swedish Copyright Act (SCA), a person who has made an adaptation of a work or shall have copyright in the work in the new form, but the right to exploit it shall be subject to the copyright in the original work. Hence, the exclusive rights of the author of the adaptation would be dependent on the original photographer’s rights. The former would therefore not be allowed to dispose of the painting by, for example, making copies of it without obtaining the prior approval of the original copyright owner. If however the work was regarded as an independent work, the artist’s rights in relation to his painting would be separate from the photographer’s rights and he would be free to exploit his painting as he wishes. 

The IPKat reflects on 
scapegoats and adaptations
According to the preparatory works for 4 § SCA, for a work to be regarded as an adaptation of the original work, the adaptation must leave the individuality and form of the original work unaffected. The original features of the original work must therefore be left unaltered in the work as adapted. In order to receive separate copyright protection, instead, the adaptation must be so independent and original that a new work would be created, taking into account, inter alia, the older work that has been used as a model. 

If the artistic individuality that embodies the older work appears as dominant in the new work, then it would be merely regarded as an adaptation. If, however, the new work is characterized by the author’s own expression of individuality and originality, it would be regarded as a new and independent creation.

In making its assessment, the Supreme Court stated that the painting must be considered in its entirety. Hence, even though Christer Petterson is at the centre of the painting, the dominant composition thereof essentially differs from the photograph. The dull colours, the rugged landscape and, above all, the symbolic goat – all give the painting a completely different meaning than the one conveyed by the original photograph. Instead of a strong close-up portrait, the painting conveys an allegory that suggests criticism of mass media’s need for scapegoats.  The painting is therefore a provocation in the form of commentary: Christer Pettersson is only portrayed a subject that has been prone to such media attention. Together with the goat, he is the carrier of such a symbolic message, a message which is also emphasized by the colours in the background.

The Supreme Court, therefore, held that the artist had transformed the photograph in such a way that he had created a new and independent work that gives expression to the painter’s individuality. Therefore he had not infringed the photographer’s rights over the underlying photography of Christer Petterson.

While the case might seem rather peculiar, it is interesting because it protects transformative uses of existing works … is this the Swedish fair use doctrine?

9 comments:

Stef said...

Another painting based on a photograph was the subject of a similar discussion in Belgium in 2015: http://www.egbertdommering.nl/?p=683
The painter was convicted for plagiarism. Long story short (Google Translates): "a case of literal post-painting, because the details and composition of the photo have been accurately reproduced, even the cut-off of the face."

Andy said...

Although I suspect that the Swedish Supreme court did not address it, a case of this sort always raises the issue of originality (in the copyright sense) when it comes to photographs. At its basic level of function a camera faithfully reproduces the image in front of its lens. Unlike other forms of copyright work, there may be absolutely no human intervention at all in producing a photograph (cf a speed camera) or there may be considerable evidence of the spirit and creativity of the photographer (for instance a Yousuf Karsh portrait or a David LaChapelle work). This is why the Berne Conventions, and several national laws on copyright, distinguish between 'creative photographs' and 'other' photographs (Lichtbilder and Lichtbildwerke in German) when it comes to the amount of protection afforded to each type. In practice, in most real world cases such distinctions are not made, and so a drunken selfie can have the same protection as a portrait by the aforementioned Karsh, just as the painting by a 2 year old child fixed to a fridge door (the painting, not the child) can have the same protection as a work by Picasso.

It strikes me that Mr Lemberger's photograph owes much to the reaction of the subject, rather than to any real technical input such as the choice of angle of view, lighting etc. In fact the best one can say about it from the creative input point of view is the matter of timing - what Henri Cartier-Bresson referred to as 'the decisive moment'. To that extent I agree with the Supreme Court's analysis that Mr Andersson has produced a truly separate work which in no way infringes the very thin copyright of Mr Lemberger's photograph.

Lorenzo Albertini said...

thanks, very interesting case and report. Similar statement of the problem in Italy, I'd say

Bart Van Besien said...

In the Belgian case (Van Giel vs. Tuymans), the court at first instance decided that the painter (Luc Tuymans) had committed copyright infringement. The parties settled the dispute before a decision in appeals was rendered. The decision at first instance tackled the question whether the painting based on the photograph was to be considered a 'parody'. In my opinion, the court at first instance did not apply the criteria of the CJEU in a correct way (see CJEU, Deckmyn vs. Vandersteen, 3 September 2014, C-201/13). The decision in appeals might have been different...

See for an analysis of the Belgian case (in Dutch) https://finniancolumba.be/auteursrecht-en-parodie-de-zaak-van-giel-t-tuymans/

See for a comparison with the US fair use system (also in Dutch): https://finniancolumba.be/inspiratie-of-plagiaat-de-grens-tussen-auteursrecht-en-expressie-vrijheid/

THE US anon said...

Interesting...

Rendering something in a different medium may be transformative (and may in some cases be a function of WHO is doing the rendering - a la Google and it's rendering of books in digital form [for the transformation of easy search]).

I'm not a professional artist, but I have done some art in both photography and painting.

I agree with the author here that the painting provides more transformation than Google, but wonder about the inconsistency seemingly inevitable when different people (and different cultures of those people) are judging "enough" of a transformation when such "enough" has no objective measure.

However, I am NOT convinced that the portion of the painting that is being challenged - the image of the man himself - should be deemed transformative. I "get" an analysis of a work of art being evaluated "as a whole," but I also "get" that some may believe that copyright protection may have been violated by a portion of a later work. I do not buy the "independent" finding because that finding is just not looking at the item to which independence is being asserted. The complaint is NOT saying that the rest of the painting is a violation, but only that the portion was a violation.

The court's attempted rationalization of "light and face angles" does not pass the sniff test.

Anonymous said...

The English parallel is Bauman v Fussell [1978] RPC 485, which concerned a painting by a young English artist in the 1950s based on a photograph, taken by a famous photo-journalist in Cuba, of cocks fighting

Pedro Malaquias said...

I find this to be a very interesting case. Although my first reaction is that this would be an infringement, I find it bizarre (to say the least) if the courts simply ignored Painer.

Trying to make sense out of it, and without having read the three decisions, I am curious to know whether there was any discussion on the copyright protection of the picture. If this was deemed not to be original, the decision would make sense. Could this be the case?

Painer does not say that all the portrait pictures are subject to copyright protection. It simply says that the criteria for protection and the degree of protection is the same as for the other works. If we look into the facts of Painer, Ms Painer designed the background, decided the position and facial expression of Natascha. The Court further mentions the following possible free and creative choices: "In the preparation phase, the photographer can choose the background, the subject’s pose and the lighting. When taking a portrait photograph, he can choose the framing, the angle of view and the atmosphere created. Finally, when selecting the snapshot, the photographer may choose from a variety of developing techniques the one he wishes to adopt or, where appropriate, use computer software.").

To what extent were free and creative choices present in the first photo? Wasn't this work simply the result of the photographer being at the right place at the right time. It is true that, in the US, this would afford you protection (see Mannion v Coors and their discussion of originality in timing), but Painer does not decide on that. I would be astonished if something different was to be said, but my point is that I am not aware of any CJEU case law on that point.

Another potential reasoning is that Plaintiff did not submit the right kind of evidence to demonstrate that the work is original (or that, at least, the part that was copied in the painting is original). For instance, check the Mankowitz case in Paris - http://ipkitten.blogspot.be/2017/06/hendrixs-portrait-is-original-afterall.html. I do not know whether such an outcome is possible under Swedish procedural law.

Finally, I see one additional possibility. Maybe the court considered the photo original, but found that the free and creative choices made by the photographer are not in the painting. Naturally, this assessment might require a deconstruction of the photo to see what makes it original. There is only an infringement if what makes the photo original (the free and creative choices) is in the painting. Could they have decided otherwise?

Anonymous said...

Hi - I was wondering does anyone know where I can find the court documents to this case (ideally where they can be translated into English)? thank you in advance.

Eleonora Rosati said...

@Anonymous - if you're looking for the decision, it's available here: http://www.hogstadomstolen.se/Domstolar/hogstadomstolen/Avgoranden/2017/2017-02-21%20T%201963-15%20Dom.pdf

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