tag:blogger.com,1999:blog-5574479.post7198337793507868946..comments2024-03-29T11:10:02.290+00:00Comments on The IPKat: Swedish Supreme Court says that painting based on photograph is new and independent creation and hence … non-infringingVerónica Rodríguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger11125tag:blogger.com,1999:blog-5574479.post-24748051079948692472019-12-30T08:57:19.641+00:002019-12-30T08:57:19.641+00:00What's Ironic about this is that the artist in...What's Ironic about this is that the artist in his painting copied the goat from a painting Called "The Scapegoat" by William Holman Hunt (English). Hunt is unlikely to complain about this since he died in 1910, & any copyright associated with his family or relatives would have run out at this point; some art museums claim copyright of paintings they own (I personally don't think this is right or fair) I don't know what the museum's attitude is regarding copyrights on the painting. I'm including a link to Wikipedia re Hunt's painting so you can judge for yourself any similarities (there is a photo of the painting).... https://en.wikipedia.org/wiki/The_Scapegoat_(painting) See also, https://www.liverpoolmuseums.org.uk/collections/preraphaelites/item-227852.aspxAnonymoushttps://www.blogger.com/profile/00447353812361468816noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-17939080345306742482018-06-13T15:41:04.965+01:002018-06-13T15:41:04.965+01:00Most interesting case, my professor (P.G.F.A. (Pau...Most interesting case, my professor (P.G.F.A. (Paul) Geerts) pointed me to this case for my thesis. Now all I need to do is understand Swedish, should be doable with the general overviews provided by this article.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-66978275930871691312018-04-04T14:29:57.015+01:002018-04-04T14:29:57.015+01:00@Anonymous - if you're looking for the decisio...@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.pdfEleonora Rosatihttps://www.blogger.com/profile/05629420303968805446noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-78661130271913552512018-04-04T13:39:02.358+01:002018-04-04T13:39:02.358+01:00Hi - I was wondering does anyone know where I can ...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.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-53205464378263490302018-03-21T09:31:19.154+00:002018-03-21T09:31:19.154+00:00I find this to be a very interesting case. Althoug...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. <br /><br />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? <br /><br />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.").<br /><br />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.<br /><br />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. <br /><br />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?Pedro Malaquiashttps://www.blogger.com/profile/07534086208709473863noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-4091685120835415662018-03-20T13:29:27.316+00:002018-03-20T13:29:27.316+00:00The English parallel is Bauman v Fussell [1978] RP...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 fightingAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-53703693343838552852018-03-20T11:39:35.331+00:002018-03-20T11:39:35.331+00:00Interesting...
Rendering something in a different...Interesting...<br /><br />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]).<br /><br />I'm not a professional artist, but I have done some art in both photography and painting.<br /><br />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 <i>judging</i> "enough" of a transformation when such "enough" has no objective measure.<br /><br />However, I am NOT convinced that the <b>portion</b> 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 <i>rest of</i> the painting is a violation, but only that the portion was a violation.<br /><br />The court's attempted rationalization of "light and face angles" does not pass the sniff test.THE US anonnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-22987978971850667512018-03-20T11:18:12.813+00:002018-03-20T11:18:12.813+00:00In the Belgian case (Van Giel vs. Tuymans), the co...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...<br /><br />See for an analysis of the Belgian case (in Dutch) https://finniancolumba.be/auteursrecht-en-parodie-de-zaak-van-giel-t-tuymans/ <br /><br />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/Anonymoushttps://www.blogger.com/profile/02654070031502318103noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-7950714860767761772018-03-20T10:24:46.029+00:002018-03-20T10:24:46.029+00:00thanks, very interesting case and report. Similar ...thanks, very interesting case and report. Similar statement of the problem in Italy, I'd saylorenzohttps://www.blogger.com/profile/18356039793253967329noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-8175815719797740142018-03-20T10:15:31.613+00:002018-03-20T10:15:31.613+00:00Although I suspect that the Swedish Supreme court ...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 <a href="https://en.wikipedia.org/wiki/File:Sir_Winston_Churchill_-_19086236948.jpg" rel="nofollow">portrait</a> or a <a href="https://en.wikipedia.org/wiki/File:David_LaChapelle_Tak_pravil_LaChapelle,_Galerie_Rudolfinum,_Praha,_2011_12_13.JPG" rel="nofollow">David LaChapelle</a> work). This is why the Berne Conventions, and several national laws on copyright, distinguish between 'creative photographs' and 'other' photographs (<i>Lichtbilder</i> and <i>Lichtbildwerke</i> 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. <br /><br />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.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-70639937693881938012018-03-20T07:59:37.705+00:002018-03-20T07:59:37.705+00:00Another painting based on a photograph was the sub...Another painting based on a photograph was the subject of a similar discussion in Belgium in 2015: http://www.egbertdommering.nl/?p=683<br />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."Stefnoreply@blogger.com