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?