5 ms·

This seems to me to be a pretty clear case of copyright infringement. As others have pointed out, looking at the picture side by side it's nearly a copy, with d

This seems to me to be a pretty clear case of copyright infringement. As others have pointed out, looking at the picture side by side it's nearly a copy, with details of the neck shadow, hair placement and clothing kept almost verbatim. For some context, when Shepard Fairey used an AP picture of Obama as reference for the "HOPE" picture [0], consensus was that it was a difficult case to judge [1] and that Fairey might lose the case even though, in my opinion, it clearly fell under fair use. This is, of course, US copyright law which is different from other places around the world, so I wonder if a lot of this ruling has to do with it being in Luxembourg. [0] https://en.wikipedia.org/wiki/Barack_Obama_%22Hope%22_poster https://en.wikipedia.org/wiki/Barack_Obama_%22Hope%22_poster [1] https://www.law.columbia.edu/news/archive/obama-hope-poster-lawsuit-settlement-good-deal-both-sides-says-kernochan-center-director https://www.law.columbia.edu/news/archive/obama-hope-poster-...

jdkee 4y ago
The difference is that Fairey used a copy of the original Obama photograph in his work. Thus he violated the copyright of the photographer, Mannie Garcia. In Zhang's case, there is no evidence that a copy of the original photograph by Zhang was included in the derivative work. Therefore no infringement. At least under U.S. law. EDIT_ See https://www.copyright.gov/circs/circ14.pdf https://www.copyright.gov/circs/circ14.pdf
- abetusk 4y ago
  I guess one way to look at it is, if the original work (the photograph) was in the public domain and the derivative work was created (the painting), would the artist who created the painting still be allowed to claim copyright over it. But I still don't understand about Fairey. How did he use the original? Even if he traced outlines to create his image from a photograph, it's still "creating a drawing based on a photograph".
  - andirk 4y ago
    Your question encapsulates the issue: where do we draw the line? To see copyright laws whether the letter or the spirit of the law is left to pretty murky opinion maybe moreso than other case law. Traced a copyrighted photo, now it's new, but it's heavily derived from someone else's copyrighted IP, etc. What about Andy Warhol's Marilyn Monroe screenprints https://www.masterworksfineart.com/artists/andy-warhol/screen-print/marilyn-monroe-marilyn-1967-1-2/id/W-7933 https://www.masterworksfineart.com/artists/andy-warhol/scree... ? Original or copyright infringement?
    - abetusk 4y ago
      Yeah, so maybe it's a lot murkier then we all understand. From a previous response, it looks like this case sidestepped the issue by ruling the photograph was not original enough so didn't fall under copyright protection (I guess?). I think the Prince prints from Andy Warhol are a better example [0]. I see a lot of articles from Oct 2022, so is this case still being tried? Copyright is a quagmire of "rule-of-thumb" policies and, in my opinion, often invalid assumptions. Understanding what and what does not fall under copyright protection is really about what the legal system understands it to be and how to convince a judge. I don't really like arguing "what's correct" when it comes to copyright violation as that's irrelevant, it's really about "what the legal system thinks is correct". One of the few pieces on copyright that's made sense to me is the "What Colour are your bits?" article by mksala [1] which, if I'm remember correctly, is arguing that it's less about the artifact produced than the provenance of how it was created. [0] https://www.npr.org/2022/10/12/1127508725/prince-andy-warhol-supreme-court-copyright https://www.npr.org/2022/10/12/1127508725/prince-andy-warhol... [1] https://ansuz.sooke.bc.ca/entry/23 https://ansuz.sooke.bc.ca/entry/23
- VanTheBrand 4y ago
  I think you are misunderstanding what a derivative work is and what is required for something to be considered one. Read the examples in the link you posted. Many of these don’t incorporate a literal direct copy of the underlying work.
  - deleted 4y ago
    [deleted]
jefftk 4y ago
At the end of the thread there are translations from the ruling. The Luxembourg court didn't rule "this is different enough not to infringe", they ruled "the photo doesn't have enough originality to be covered by copyright" and so even an exact copy would be legal.

jdkee 4y ago

The difference is that Fairey used a copy of the original Obama photograph in his work. Thus he violated the copyright of the photographer, Mannie Garcia. In Zhang's case, there is no evidence that a copy of the original photograph by Zhang was included in the derivative work. Therefore no infringement. At least under U.S. law. EDIT_ See https://www.copyright.gov/circs/circ14.pdf https://www.copyright.gov/circs/circ14.pdf

abetusk 4y ago
I guess one way to look at it is, if the original work (the photograph) was in the public domain and the derivative work was created (the painting), would the artist who created the painting still be allowed to claim copyright over it. But I still don't understand about Fairey. How did he use the original? Even if he traced outlines to create his image from a photograph, it's still "creating a drawing based on a photograph".
- andirk 4y ago
  Your question encapsulates the issue: where do we draw the line? To see copyright laws whether the letter or the spirit of the law is left to pretty murky opinion maybe moreso than other case law. Traced a copyrighted photo, now it's new, but it's heavily derived from someone else's copyrighted IP, etc. What about Andy Warhol's Marilyn Monroe screenprints https://www.masterworksfineart.com/artists/andy-warhol/screen-print/marilyn-monroe-marilyn-1967-1-2/id/W-7933 https://www.masterworksfineart.com/artists/andy-warhol/scree... ? Original or copyright infringement?
  - abetusk 4y ago
    Yeah, so maybe it's a lot murkier then we all understand. From a previous response, it looks like this case sidestepped the issue by ruling the photograph was not original enough so didn't fall under copyright protection (I guess?). I think the Prince prints from Andy Warhol are a better example [0]. I see a lot of articles from Oct 2022, so is this case still being tried? Copyright is a quagmire of "rule-of-thumb" policies and, in my opinion, often invalid assumptions. Understanding what and what does not fall under copyright protection is really about what the legal system understands it to be and how to convince a judge. I don't really like arguing "what's correct" when it comes to copyright violation as that's irrelevant, it's really about "what the legal system thinks is correct". One of the few pieces on copyright that's made sense to me is the "What Colour are your bits?" article by mksala [1] which, if I'm remember correctly, is arguing that it's less about the artifact produced than the provenance of how it was created. [0] https://www.npr.org/2022/10/12/1127508725/prince-andy-warhol-supreme-court-copyright https://www.npr.org/2022/10/12/1127508725/prince-andy-warhol... [1] https://ansuz.sooke.bc.ca/entry/23 https://ansuz.sooke.bc.ca/entry/23
VanTheBrand 4y ago
I think you are misunderstanding what a derivative work is and what is required for something to be considered one. Read the examples in the link you posted. Many of these don’t incorporate a literal direct copy of the underlying work.
- deleted 4y ago
  [deleted]

jefftk 4y ago

At the end of the thread there are translations from the ruling. The Luxembourg court didn't rule "this is different enough not to infringe", they ruled "the photo doesn't have enough originality to be covered by copyright" and so even an exact copy would be legal.