Birds of a feather...copy each other?

The Australian press is a flurry with reports of some artistic copying. The first image below is a photograph, entitled Shenae and Jade, by artist Petrina Hicks, which is held in the collection of the Art Gallery of New South Wales. The second is a painting by Czech artist Marek Hospodarsky entitled Bird.

Reports the Sydney Morning Herald:

Art dealer David Hulme found it hard to spot the differences when he received a promotional email from art dealer Saatchi Online.

The price of the Hospodarsky painting is $1200 - a print costs $20.

 Mr Hulme said the image was an ''iconic photographic image''. ''I compared the two and it's obvious that it's a copy,'' he said. ''The main problem is the way it is being proliferated to such a substantial amount of people around the world.'' He rated the work as ''quite an amateurish representation of Petrina's very highly professional work'' and said it could damage the artist ''because it is not of anywhere near the same quality''.

When The Sunday Age contacted the Stills Gallery in Paddington, Sydney, which represents Hicks, it was not long before a second painting by the artist was discovered on the Saatchi website that also looked familiar. Hicks accused Hospodarsky of ''directly'' ripping off another of her images. "I can also recognise the works of other well-known artists in his paintings; his work is 100 per cent derivative,'' she said.

Looking to our favourite recent UK Red Bus case, there it was held that it is possible to infringe copyright in a photograph by recreating a scene that had been photographed, when the skill and labour of the author (his intellectual creation) went into creating the scene that was photographed in the first place. The judge found that the common elements between the defendants' work and the claimant's work were causally related, in other words, that they had been copied, and, on a qualitative assessment of the reproduced elements, those elements were a substantial part of the claimant's work. Therefore, there was copyright infringement of the original work.

Applying the decision to the facts of this situation, upon a very basic visual appraisal (of my own), it does seem that the Hospodarsky painting reproduces the key visual elements of the Hicks painting. I would be interested to know our readers' views on the matter. Would you consider that Hospodarsky's painting reproduces a substantial part of the Hicks image so as to amount to copyright infringement? Or is Hospodarsky's painting his own intellectual creation.


Source: Sydney Morning Herald, 8 July 2012

Originality or author's own intellectual creation? What is the legal test for copyright subsistence in photographs?

Is this the red bus that sparked
a thousand copyright debates?

One of the many insightful comments in response to the Art & Artifice debate surrounding the "Red Bus" decision came from Francis Davey.

He wrote in response to my musings regarding the current test for copyright subsistence in photographs:

Does Painer apply? Painer was considering the "own intellectual creation" standard for European Law, but common law protection is, arguably, lower (I'd say - almost indisputably).

Surely recital 16/article 6 of 2006/116/EC preserved the common law level of protection for "uncreative" photographs? The 1988 was not, and could not, be amended to raise that level of protection by a regulations made under the 1972 Act, so the law must, presumably, be the common law. Unless some new, countervailing, principle exists that has never been properly articulated.

My understanding was that there are not two systems that run in parallel for assessing whether a photograph has artistic copyright and that following Infopaq, which was confirmed in Painer, the correct test is now "author's own intellectual creation" rather than the common law approach of originality. However, lacking complete confidence in my convictions, I deferred to a higher authority, namely Dr Justine Pila of Oxford University. She, diplomatically, replied as follows:

I agree with you both.

1. Is the common law originality standard lower than the EU ("author's own intellectual creation") standard?

*If* the common law standard requires "skill and labour" only, and *if* the EU standard requires creativity (as per Floyd J and AG Mengozzi in Football Dataco) then *in principle* yes - and this certainly was the view of AG Mengozzi in that case ("copyright protection is conditional upon the database being characterised by a ‘creative’ aspect, and it is not sufficient that the creation of the database required labour and skill").

2. Does the Term Directive permit Member States to confer copyright protection on photographs which satisfy the common law originality standard but not the EU standard?

I think it does. Article 6 of the Term Directive requires that photographs satisfying the EU standard be protected as literary or artistic works within the meaning of Berne Art 2 - ie, by lit/artistic copyright - without the imposition of any other criteria. And it expressly permits [Member States] to "provide for the protection of other photographs", ie, photographs not satisfying the EU standard. So the only question is whether UK law still recognises the sufficiency of the common law originality standard with respect to photographs.

3. Does UK law recognise photographic copyright in the absence of "creativity"?

I think it does, consistent with Antiquesportfolio.com (2001 Ch).

4. Does it follow that UK copyright only subsists in photographs if they are creative, or that the UK and European tests of photographic copyright differ?

No, I don't think so, because I don't think that Painer requires creativity for photographic copyright. Rather, it requires (a) that the subject matter of a photograph leaves scope for “sufficient formative freedom”, and (b) that the photographer exploit that freedom so as to leave his “mark” on the resulting work (ie, the photograph). (And it held that in the case of a photographic portrait, there is sufficient formative freedom, and thus the possibility of copyright, as "the photographer can determine, among other things, the angle, the position and the facial expression of the person portrayed, the background, the sharpness, and the light/lighting.") In my view this is perfectly consistent with the UK approach as adopted in Antiquesportfolio.com, where the court held that UK copyright will always subsist in a photograph of a single, static non-spherical 3-d object (eg, antiques) on the basis of the judgement involved in positioning the object, determining the angle at which it is to be taken, and determining the lighting and focus.

So I agree with you, that the European and UK tests of photographic copyright are the same, and conform with that adopted in Painer. The critical question in any particular case is whether the subject matter leaves scope for “sufficient formative freedom” which the photographer exploits so as to leave his “mark” on the resulting work. This test seems better captured by the "author's own intellectual creation" formulation than the "skill and labour" one; though in fact UK courts have often expressed the common law originality standard in terms of "skill, labour and judgement", which is arguably not different from the European "author's own intellectual creation" test. And I personally doubt that the EU test requires creativity - it's almost identical to the Canadian test, which was formulated partly so as to underline that creativity is *not* required. (That at least is my memory.)

Do you agree? Where is the line in your jurisdiction? Where do you think the line for copyright subsistence should lie? Please join in the debate using the comments section below.

Note: no weblinks were included in the correspondence.  They have been included in this blog for readers' ease of reference.