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Paintings from Photographs: A Copyright Conundrum

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Abstract

There has been a series of decisions of national courts in Europe concerning claims of infringement of copyright in photographs by paintings based on those photographs. These cases have had a diversity of outcomes. In part, this is due to a failure by national courts in recent cases properly to apply the guidance of the Court of Justice of the European Union. More fundamentally, it reflects a lack of agreement as to what the copyright in a photograph is supposed to protect. This article proposes a solution to the problem through a careful application of the principles laid down by the CJEU.

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Notes

  1. See e.g. Scharf (1990).

  2. There is a burgeoning literature on the copyright protection of photographs under United States law (even leaving aside scholarship primarily concerned with fair use and/or the phenomenon of appropriation art): see e.g. Butler (1998), Farley (2004), Allan (2007), Miller (2009), Madison (2010), Subotnik (2011), Bruce (2012), Hughes (2012), Kogan (2015) and Mazurek (2017). There has been less recent scholarship in Europe on the subject.

  3. Note that similar issues arise in relation to sculptures based on photographs, as in the US case of Rogers v Koons 960 F 3d 301 (2nd Cir 1992).

  4. It is an interesting question whether photographers object to their photographs being used in this way for economic reasons or on moral rights grounds or both. My sense from reading the cases discussed in this article is that the photographers commonly object to what they see as the painters profiting from their (the photographers’) work, particularly because the paintings generally command significantly higher prices than the photographs on which they are based. But lack of attribution is also a factor, and in some cases photographers may have concerns about the treatment of their work.

  5. Cooper (2018).

  6. Arnold (2011); Dramatico Entertainment Ltd v British Sky Broadcasting Ltd [2012] EWHC 268 (Ch), [2012] RPC 7 at [63]; England and Wales Cricket Board Ltd v Tixdaq Ltd [2016] EWHC 575 (Ch), [2016] Bus LR 641 at [58].

  7. England and Wales Cricket Board Ltd v Tixdaq Ltd, supra note 6, at [66].

  8. [EU:C:2018:1002].

  9. As in Reject Shop plc v Manners [1995] FSR 870.

  10. As in Hyde Park Residence Ltd v Yelland [2001] Ch 143.

  11. Cartier-Bresson (1952).

  12. As in the US case purporting to apply English law, Bridgeman Art Library Ltd v Correll Corp 25 F Supp 2d 421 (SDNY 1998). Cf. Antiquesportfolio.com plc v Rodney Fitch & Co Ltd [2001] FSR 23. Note that under German law, such photographs are protected by a neighbouring right: see infra note 15 and the recent decision of the Bundesgerichtshof (Federal Court of Justice) in Museumsfotos, I ZR 104/17, 20 December 2018.

  13. Arnold (2011).

  14. Thus protecting a photographer against the reproduction of a scene created by the photographer whether by independently photographing the same scene (as in Creation Records Ltd News Group Newspapers Ltd [1997] EMLR 444) or by re-creating and then photographing the scene.

  15. This is similar, but not identical, to the solution adopted by some Member States of the EU, such as Austria, Germany and Italy, which confer copyright (i.e. authors’ right) protection upon photographs which qualify as artistic works (Lichtbildwerke) and neighbouring right protection upon photographs which involve insufficient intellectual creativity to qualify as artistic works (Lichtbilder): see Gendreau et al. (1999). The difference is that my first category focuses on what is captured by the photograph. The distinction is illustrated by Creation Records, supra note 14, where Lloyd J held that independently photographing the same scene was not an infringement of photographic copyright, but said at 450 that re-creating the scene from the photograph and then photographing that would be an infringement.

  16. As in Temple Island Collections Ltd v New English Teas Ltd [2012] EWPCC 1, [2012] FSR 9.

  17. Paris Act, 1971.

  18. See e.g. Ricketson and Ginsburg (2007), pp. 505–508, 1205–1208; Goldstein and Hugenholtz (2013), pp. 106, 158, 189–191; Ficsor (2003), p. 27.

  19. Ricketson and Ginsburg (2007), pp. 79, 442–444.

  20. Ricketson and Ginsburg (2007), pp. 79, 444–446.

  21. Ricketson and Ginsburg (2007), pp. 95, 446–447.

  22. Ricketson and Ginsburg (2007), pp. 115, 450–451. Even then, there was no minimum term of protection for photographic works. A 25-year minimum term was introduced by Art. 7(4) of the Stockholm revision in 1967, while a duration of 50 years post mortem auctoris was first required by Art. 9 of the WIPO Copyright Treaty of 1996.

  23. Berne Convention, Art. 2(5).

  24. Ricketson and Ginsburg (2007), pp. 451–452; Goldstein and Hugenholtz (2013), pp. 203–204.

  25. Ricketson and Ginsburg (2007), p. 505.

  26. See in particular Case C-5/08 Infopaq International A/S v Danske Dagblades Forening [2009] ECR I-6569 at [33]–[34]. For commentary on Infopaq see in particular Rosati (2013), Chap. 3.

  27. Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs, now codified as European Parliament and Council Directive 2009/24/EC of 23 April 2009, Art. 1(3); European Parliament and Council Directive 96/9/EC of 11 March 1996 on the legal protection of databases, Art. 3(1).

  28. See supra note 15.

  29. [2011] ECR I-12533. For commentary on Painer see in particular Rosati (2013), pp. 148–155, 189–200.

  30. Ibid at [87]–[94].

  31. Ibid at [95]–[98].

  32. Supra note 26 at [33]–[34].

  33. Ibid at [39].

  34. Ibid at [45]–[48].

  35. In countries which confer a neighbouring right on unoriginal photographs, the position is likely to be different with regard to infringement of the neighbouring right.

  36. In considering this case law, it should be borne in mind that, for reasons that will appear, the images of the respective photographs and paintings or drawings are crucial. I have been able to track down many of the images, but not all of them. In cases where the images are not available, I have relied upon the courts’ description of them.

  37. (1895) 65 LJ QBD NS 120.

  38. (Robert) Gambier Bolton (1854–1928) was an English author and photographer interested in natural history and psychical phenomena. Bolton made numerous photographs of animals during his travels to many countries. His interest in animal photography was professional, being among the first to profit from this pursuit: see Wikipedia.

  39. Cecil Aldin (1870–1935) was an English artist and illustrator best known for his paintings and sketches of animals, sports, and rural life: see Wikipedia.

  40. The case has factual similarities with the earlier US case of Burrow-Giles Lithographic Co v Sarony 111 US 53 (1884), which concerned a lithograph based on a photograph of Oscar Wilde.

  41. [1895] AC 20.

  42. (1953) [1978] RPC 485. Note that Bolton v Aldin does not appear to have been cited. Nor is Bolton v Aldin cited in either of the current leading commentaries, Davies et al. (2016) and Laddie et al. (2018).

  43. Felix H. Man (1893–1985) was a photographer who was one of the pioneers of photojournalism, particularly in his work for Picture Post after he emigrated from Germany to England in 1934: see Wikipedia. Shortly before Bauman v Fussell, he was successful in claiming damages for wrongful dismissal from the publisher of Picture Post: Bauman v Hulton Press Ltd [1952] 2 All ER 1121.

  44. Michael Fussell (1927–1974) was an English artist who subsequently worked in a more abstract idiom. The Tate has one of his pictures in its collection.

  45. Supra note 42 at 492 (Romer LJ).

  46. Ibid at 487 (Somervell LJ).

  47. Ibid at 487 (Somervell LJ).

  48. Ibid at 488 (Somervell LJ quoting HHJ Dale).

  49. Ibid at 487.

  50. Ibid at 492.

  51. Ibid at 490.

  52. See Cooper (2018), at 50 for a contrary view.

  53. Some commentators [e.g. Laddie et al. (2018), at 4.70] regard this as having been confirmed by Temple Island, supra note 16, but as noted above the copyright work in Temple Island was really a digital artwork and not a pure photograph.

  54. See European Union (Withdrawal) Act 2018, Secs. 2 and 6.

  55. NJA 1989 Sec. 315; [1991] GRUR Int. 567. I am grateful to Nedim Malovic for assistance in locating this case.

  56. Bert Olls (1923–2013) was a Swedish author and illustrator who published 62 books: see Wikipedia.

  57. T 1963-15, 21 February 2017; Swedish Scapegoats [2018] IIC 1111. See case note by Malovic N [2018] JIPLP 604.

  58. Jonas Lemberg is a Swedish press photographer and founder of the Photographers Giving Back award, a competition set up to promote photojournalism and to strengthen the position of the professional photographer: see Jonas Lemberg, The PGB Photo Book: The Best Photography From Around the World (Arena, 2009).

  59. I have been informed that this reasoning is a novelty in Nordic copyright law.

  60. Hubschrauber mit Damen (Helicopter with Women) 21 O 17164/85, 29 November 1985, [1988] GRUR 36. See Nordemann, “Germany” in Gendreau et al. (1999), p. 145.

  61. Michael Friedel (born 1935) is a German photographer and photojournalist: seewww.worldpressphoto.org.

  62. Peter Nagel (born 1941) is a German painter and graphic artist: seewww.widewalls.ch.

  63. Power of Blue [1996] NJW 1153. See Nordemann, “Germany” in Gendreau et al. (1999), p. 145 (but note that Nordemann wrongly attributes the decision to the OLG Munich). The case is discussed in Landes and Posner (2003), pp. 267–268.

  64. Helmut Newton (1920–2004) was a German–Australian fashion photographer well known for his erotically-charged photographs: see Wikipedia.

  65. George Pusenkoff (born 1953) is a Russian–German painter, installation artist and photographer known as a representative of post-modernism: see Wikipedia.

  66. [2008] ZUM-RD 202.

  67. 4Ob 221/03 h, 16 December 2003; [2006] ECDR 9.

  68. See Temple Island, supra note 16, [18]–[20].

  69. 11259/09, 28 May 2009. See van den Eede and Trevisan (2010). I am grateful to Luca Trevisan for supplying further information about this case.

  70. Mauro Davoli (born 1955) is an Italian photographer with an established reputation in the field of design and architectural publications: see van den Eede and Trevisan (2010).

  71. Giuseppe Muscio is an Italian painter who is known for hyperrealistic paintings of flowers and still lives: seewww.fineartblogger.com.

  72. 14/4305/A, 15 January 2015. See Searle (2015).

  73. Katrijn van Giel is a Belgian photographer who graduated from the Antwerp College for Photography in 2004 and won the award for the best Belgian photographer in the Sony World Photography Awards in 2017: seewww.katrijn.com.

  74. Luc Tuymans (born 1958) is a Belgian artist who lives and works in Antwerp. Examples of his work are held by numerous international museums and he has exhibited widely: see Wikipedia.

  75. [EU:C:2014:2132].

  76. RG 15/06029, 16 March 2018. See case note by Rosati E [2018] JIPLP 525.

  77. Alix Malka is a French photographer who previously worked for many years as art director for Thierry Mugler: seewww.alixmalka.com.

  78. It is not clear whether the photographer was responsible for the make-up or another person, which could affect the analysis of the case.

  79. Peter Klasen (born 1935) is a German painter, photographer and sculptor who lives and works in Paris and who is known for his collage-like Pop Art paintings: seewww.artnet.com.

  80. Decision n 519, 15 May 2015; X v Y [2016] ECDR4; Glamour [2016] IIC 856.

  81. App No. 36769/08.

  82. [KKO:2018:21], 21 March 2018.

  83. Reijo Viljanen (born 1950) is a Finnish artist known for abstracted landscapes: see wwww.askart.com.

  84. Korkein Oikeus 1979 II 64.

  85. See Kogan (2015) for a detailed exposition of the creativity involved in photography.

  86. See Designs Guild Ltd v Russell Williams (Textiles) Ltd [2001] FSR 11 at [17]–18], [21] (Lord Hoffman) and [38]–[41] (Lord Millett). This does not mean that differences between the painting and the photograph are irrelevant, particularly where the painter has replaced photographic effects with painterly ones. Additions may also be relevant to defences such as parody and quotation.

  87. This is not, as some have suggested, contrary to Painer. The CJEU held that portrait photographs did not enjoy lesser protection than other works; it did not say that all photographs enjoyed the same scope of protection.

  88. Laddie H et al. (2018), at 4.66. The classification was adopted in Temple Island, supra note 16, at [21]–[27]. As the judge recognised at [28], although he then proceeded to discount it at [29], the artwork in issue in that case was original in a different way, because it had been subject to extensive digital manipulation: see [4]–[6] and [51]–[54].

  89. Hughes (2012), pp. 389–407.

  90. Creation Records, supra note 14. This is because of the UK’s closed-list system of copyright protection, which requires a work to be fitted into one of the categories listed in the Copyright, Designs and Patents Act 1988 in order to be protected. If it were to be held that such closed-list systems are contrary to EU law, as some commentators have argued (e.g. Rosati (2019)), and the UK remained in the EU, then the position would change.

  91. Although it may be debated whether protection should extend as far as making it an infringement of the copyright in the photograph to re-create the scene at a later date and then photograph that, as in the US case of Gross v Seligman 212 F 930 (2d Cir 1914).

  92. Or their digital equivalents in the case of e.g. film colour speed.

  93. Hughes (2012), pp. 404–407.

  94. See Bently and Aplin (2018A) and Bently and Aplin (2018B). The viability of such an argument may depend on the extent to which the CJEU adopts the Opinion of Advocate General Szpunar in Case C-516/17 Spiegel Online [EU:C:2019:160].

  95. Even in Davoli v Muscio it is debatable whether the source was properly attributed – the Milan District Court thought not.

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    Richard Arnold

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I am grateful to Lionel Bently, Elena Cooper, Estelle Derclaye, Jane Ginsburg, Ansgar Ohly, Eleonora Rosati and two anonymous reviewers for comments on earlier drafts.

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Arnold, R. Paintings from Photographs: A Copyright Conundrum. IIC 50, 860–878 (2019). https://doi.org/10.1007/s40319-019-00856-3

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