US-based photographer Jingna Zhang accused Luxembourg painter Jeff Dieschburg of copying in his oil painting ‘Turandot’ one-to-one from her photographs, claiming copyright infringement. Dieschburg had exhibited the painting at the 11th Strassen Biennale of Contemporary Art, requested a substantial amount of money for it and had won a EUR 1.500 prize for it.
Background: determining originality in art
Ms Zhang took the original photograph in the context of the shooting for a cover of the Harper's Bazaar Vietnam edition of October 2017 as part of a series of Botticelli-inspired images. Despite minor differences, a side-by-side comparison of the photo and the painting shows striking similarities. In June 2022, Ms Zhang raised concerns about this on social media. Fellow artists and supporters rallied behind her, and other artists revealed similar experiences.
On 7 December 2022, the Luxembourg district court ruled that Mr Dieschburg had not infringed on Ms Zhang’s work which allegedly lacked originality and, hence, copyright protection. To benefit from copyright protection under Luxembourg law (‘loi du 18 avril 2001 sur les droits d’auteur’), a creation must meet two conditions: i) it must be a work that presents a concrete expression, making it different from an abstract idea; and ii) it must display a sufficient degree of originality on the part of the author.
The decision of the Court of Appeal
The Court of Appeal disagreed with this decision. It confirmed that Ms Zhang is the sole author of the disputed image, that it is sufficiently original to be copyright protected and that Mr Dieschburg had infringed Ms Zhang's copyright by exposing a painting that was a mirror image of the original image.
Conclusion
“This win means a lot - not just for me but also for artists and photographers everywhere”, Ms Zhang says in a statement on Linkedin. ”It’s a reminder that copyright protects individuals from those that try to profit off our work without consent. It reaffirms that our work being online doesn't mean we give up our rights. I know that as individuals, it may not seem like there's much we can do. But even if we are alone, the act of many individuals fighting for what's right, over time, may one day be collectively enough to make a difference in this world.”
“Hopefully this can be a landmark case for copyright protection in Luxembourg and reassure the creative community in Luxembourg and beyond”, says IP partner Vincent Wellens who leads the NautaDutilh team that represented Ms Zhang. “Ms Zhang’s work is undeniably original, it is a photograph that is known and recognised as an artistic work. However, this case shows that it is of utmost importance to document the contributions of the different actors in the creative process ánd to explain the creative choices of the author in order to assure copyright protection.”