Is imitation the sincerest form of flattery? On copyright in truthful depictions

Can a copy of a painting in the public domain be protected by copyright? As IPKat readers know, this is something that has been already subject to litigation [eg, in Germany: see here and here] and has been also considered in the context of the proposed Directive on Copyright in the Digital Single Market [Article 14 - the EU Parliament will vote on the directive TOMORROW]. 

A recent decision from the Netherlands also adds to this debate, Katfriend Léon Dijkman (European University Institute) explains.

Here's what Léon writes:

Lucrezia and Rembrandt

Is imitation the sincerest form of flattery? On copyright in truthful depictions

by Léon Dijkman

The Dutch celebrate the Rembrandt Year in 2019 to commemorate perhaps the greatest of all Dutch painters, who died 350 years ago this year. Rembrandt was a controversial figure in his lifetime and controversies around his work still arise, not just in the art market [where the discovery of a 'new' Rembrandt caused a scandal between two well-known art dealers] but also in IP. 

A while ago The IPKat reported on an attempt to register Rembrandt's Night Watch as a Benelux trade mark, which ultimately failed before the Court of Appeal in the Hague [here]. 

The Night Watch came up again in a decision by the Court of Appeal of Arnhem-Leeuwarden last week [here], which raises interesting questions on copyright protection in truthful or 'realistic' depictions and derivative works. 

The Night Watch was originally painted by Rembrandt for the headquarters of the Amsterdam civic guard and when it was moved to the town hall, it was trimmed on all four sides to fit the painting between two columns. 

Between 1985 and 1990, Dutch painter Jan van der Horst painted a copy of the Night Watch, including a reconstruction of the trimmed-off parts [note from Eleonora: this case seems to have some points of similarities with the Sawkins case, which concerned performing editions of public domain music]. Since 1992, the copy is on display in an exhibition centre. 

After his death in 2014, Van der Horst's widow sued the exhibition centre seeking restitution of the painting. One of the grounds of her claim was her co-authorship of the painting, which allegedly arose from her assistance in reconstructing what the trimmed-off parts of the original had looked like. 

At first instance, the Overijssel District Court left open the issue whether the copy was subject to copyright, but dismissed the claim because the widow in any event could not be considered a co-author [here]. 

The Court of Appeal upheld the decision, but ruled explicitly that no copyright vests in Van der Horst's work because it was intended as a "truthful copy" of the original Night Watch. 

No creative choices in truthful depictions? 

The case is the latest in a line of Dutch cases that have held that truthful depictions would not be eligible for copyright protection, because these do not entail "free creativity" on the part of the author [see also here, where the District Court of the Hague denied copyright in model trains (at 4.23), and here, where it denied copyright to a stuffed toy of Boo, the world's cutest dog (at 5.7). The decision was overturned on appeal, without however addressing the issue of originality in truthful copies]. 

I find these decisions puzzling: why should we assume that creating a truthful depiction of an object involves no creative choices? If 'mere photographs' are protectable by copyright [as was accepted without discussion in the CJEU's recent Renckhoff decision, despite the A-G's doubts that they satisfy the Court's criteria in Painer], why shouldn't more complex depictions of other objects be, even if they attempt to portray the object as realistically as possible? This seems particularly true if one is copying a Rembrandt painting, which owe their depth and complexity to Rembrandt's painting technique. Trying to emulate this technique undeniably involves a large number of creative choices when it comes to choosing the right paint, how to apply it, etc. There are good reasons to deny a copy of a Rembrandt painting copyright, but doing so because making the copy does not involve creative choices seems incorrect. 

Derivative works

In its upcoming decision in Pelham and others, the CJEU will address the difficult issue of derivative works [see prof. Mireille van Eechoud's chapter in her edited volume here]. In that case, AG Szpunar opined that producing a phonogram containing a sample is intended to "create a new work independent of the [sampled] phonogram" [par. 48, here, see The IPKat's discussion of the Opinion here]. This is in line with the general rule for derivative works, which seems to be that adaptations of works are treated as infringing reproductions if they do not contain sufficiently original added elements, whereas if they do they can be copyright works in their own right (but they would still infringe the original work). 

What should be the scope of protection of such works? Elsewhere in the Opinion, AG Szpunar states that "elements of [the] work which must clearly remain in the public domain" must be excluded from protection (par. 35). This is a sensible solution for an adaptation of the Night Watch, since it would be unacceptable if the original painting was "reclaimed" from the public domain through an adaptation. But it will not always be easy to 'carve out' the elements of a work that must remain in the public domain, and this approach seems more suited for design protection, which is commensurate with the contribution to the Umfeld. By contrast, copyright normally protects the work as a whole once the originality threshold is met. It will be interesting to see how the CJEU addresses this in future cases. 

Adaptation and restoration of artworks

What about the fact that Van der Horst did not paint the Night Watch as it exists today, but as it was originally painted by Rembrandt? This, too, failed to persuade the Court of Appeal, since the trimmed-off parts were painted on the basis of a picture of a copy of the original Night Watch [the artistic quality of which apparently merits its display in The National Gallery]. If the truthful depiction-analysis is unpersuasive for one-on-one copies, it is all the more so for copies that involve a complex reconstruction of the original painting on the basis of photographs. Or think of restorations of paintings, which often drastically change the appearance of the existing work [as happened in the controversial restoration of Newman's Who's Afraid of Red, Yellow and Blue III]. It is clear that these modifications involve creative choices; it is, however, less clear how they fit within copyright law. In a time when use and re-use of artworks is ubiquitous, we can expect interesting developments in this regard.