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From The IPKat:
The case reported is colloquially known as Swedish scapegoats – a case from 2017 that made all the way up to the Swedish Supreme Court, and concerned a copyright dispute between the author of a close-up photograph and the author of a painting that was based on that photograph.
Markus Andersson is a Swedish artist who primarily paints images in oil and watercolor. In 2006 he was invited to exhibit his oil paintings at the Moderna Museet in Stockholm (The Museum of Contemporary and Modern Art). Mr Andersson exhibited a number of oil paintings of Swedish people, represented as scapegoats (a scapegoat is someone that is used to lay the blame on for all that goes wrong). Amongst others, there was a painting depicting the prosecuted – but subsequently freed of charges – Christer Petterson, ie the alleged murderer of former Swedish Prime Minister Olof Palme.
The portrait used as a basis for the painting of Christer Pettersson was a photograph by Jonas Lemberg. Mr Lemberg had followed and photographed Christer Petterson for a few days in 2005. One of the photographs taken by the Mr Lemberg was a close-up portrait of Christer Petterson that was consequently circulated on Swedish media.
Mr Lemberger’s picture (left) and Mr Andersson’s painting (right) Click on image for a larger version
. . . .
The painting used dull colours in a rugged landscape and – compared to the photograph – featured a goat depicted in the upper right corner in the background. A photograph of the painting was subsequently uploaded onto Mr Andersson’s website and also sold in poster format.
When finding out about the painting, Mr Lemberg claimed that the artist had infringed the copyright in his close-up portrait of Mr Christer Petterson.
. . . .
The Solna District Court held that, because main focus of the painting was Christer Petterson, which was also the case in the close-up photograph, the painting could not be considered a new and independent work, but rather an adaptation of the original work. This was the case despite the alteration of the environment, such as the dull colours, the rugged landscape and the goat.
The Court of Appeal, however, held that the painting could not be regarded as an adaptation of the close-up portrait but rather as a new and independent work. In the Court of Appeal’s judgment it is stated that “the face of Christer Petterson has … been highlighted and the face seems less angular than in the photograph. In addition, the colours in the painting are more subdued and adapted to the background, which also causes some differences in how the light falls over the face”.
. . . .
According to 4 § of the Swedish Copyright Act (SCA), a person who has made an adaptation of a work or shall have copyright in the work in the new form, but the right to exploit it shall be subject to the copyright in the original work. Hence, the exclusive rights of the author of the adaptation would be dependent on the original photographer’s rights.
. . . .
If the artistic individuality that embodies the older work appears as dominant in the new work, then it would be merely regarded as an adaptation. If, however, the new work is characterized by the author’s own expression of individuality and originality, it would be regarded as a new and independent creation.
In making its assessment, the Supreme Court stated that the painting must be considered in its entirety. Hence, even though Christer Petterson is at the centre of the painting, the dominant composition thereof essentially differs from the photograph. The dull colours, the rugged landscape and, above all, the symbolic goat – all give the painting a completely different meaning than the one conveyed by the original photograph.
19 thoughts on “Swedish Supreme Court says that painting based on photograph is new and independent creation and hence … non-infringing”
Asides from the copyright issues, isn’t also against the law to use another’s likeness for commercial purposes without their consent?
That occurred to me too, but maybe this guy is considered a public figure and there’s some loophole that allows that? (Not sure what the loophole for public figures is exactly, but I figured there must be one or tabloids would be out of business.)
“the exclusive rights of the author of the adaptation would be dependent on the original photographer’s rights”
Does this mean that proceeds from the painting have to be shared with the photographer?
Is this significantly different then U.S. copyright law?
PG maybe it’s supposed to be ugly?
I’m with the Solna District Court — looks to me like an adaptation of the original work. Not a good adaptation, in my opinion.
It’s nice to have a celebrity comment, Sasha.
I feel like Homer Simpson looking through “The Far Side” calendar: “I don’t get it…I don’t get it…”
I don’t get what you mean…?…
Perhaps PG thinks you are really with Solna District Court – a judge or something?
THAT’S IT! Thank you, Lexi 🙂 Sometimes it takes me a while to get a joke..
(And no, I’m not really with Solna District Court!)
You’re still a celebrity, Sasha.
I found it quite interesting to compare the two images at the larger size. The painterly artist has changed the lines of the face and the position of the mouth in such a way that the subject looks sad and evokes my pity. Whereas the photograph depicts a man who scares me.
Art isn’t always meant to be attractive or pretty. In this case, the painter seems to be making a statement about an innocent man found wrongfully guilty.
(I know nothing about the Petterson case and the allegation. I’m merely responding to the two images, one a photograph, one a painting.)
Interesting observations. I would certainly agree that the painting is not meant to look pretty but rather to be some sort of political/social statement (which seemed clear to me from the article). I could see how those small changes to create a different impression could make the work transformative rather than derivative. But a fully original work? I don’t get that.
I agree with you that the changes are transformative, and thus that the painting is not merely derivative.
But isn’t that the basis for whether a work is considered to be infringing or not? I suppose the question is whether the changes ar sufficiently transformative.
Insufficient transformation would cause one to conclude that the work is in fact derivative enough to be infringing. Sufficient transformation would allow one to decide that the work was not derivative, and thus did not infringe.
I think I don’t wish to scrutinize the work closely enough or long enough to decide whether I think the changes are sufficiently transformative. 😉
From the article, it sounded like the court decided it was a wholly original piece of art, which I had thought went beyond ‘transformative’, but maybe my understanding of the whole ‘transformative’ aspect of copyright is not right. (It seems to me, logically, that a work of art can be transformative and therefore non-infringing without discounting the clear connection it has with a different piece of art as if sprang fully from the imagination of the second artist with no inspiration from the first work.) Or maybe the Swedish court analyzes things along different lines than the US court does.
Now you’ve gotten me interested in delving into the definition of “transformative” as applied to copyright. 😀
I went looking to see what The Copyright Handbook had to say about it. Most of the discussion seems to be in the context of fair use, but it seems relevant.
A use is tansformative where the material is used to help create a new and different work, not simply copied vrbatim.
In the case spurring this discussion, I would say that th painting is not simply copied verbatim.
Concerning the term “derivative”:
A…process of transformation can be used to creat new works of authorship; that is, an author can take expression that already exists, add new expression to it, and end up with something new—that is, a new and different work of authorship. Such works are calld derivative works.
However, a work is derivative for copyright purposes only if its author has taken a substantial amount of a previously existing work’s expression.
That would seem to me to be the question with this photograph and this painting. How substantial is the amount taken? To me, the amount taken seems very substantial.
But there would seem to be a lot of subjectivity in deciding this question.
Here’s another passage from The Copyright Handbook that seems pertinent:
…the purpose and character of your intended use must be considered… The test here is to see whether the subsequent work merely serves as a substitute for the original or “instead adds something new with a further purpose or different character, altering the first with new expression, meaning, or message.
That may be why the court found it not to be infringing. Because the painting clearly is conveying a political or moral or emotional meaning that is not present in the photograph.
Thanks for prompting me to check this out, PG and Anon. I enjoy rabbit holes of this sort!
(Although I should be working on the diagrams of long sword fencing techniques that will go in the appendices of WIP!)
The painting is indeed unattractive, but then Mr. Petterson’s face in the photograph is also unattractive. But at least the photograph is an accurate representation of the face at a certain time; the painting has no such excuse.
Good!
And yes, that be one ugly son-of-a-bread-eater. (and the ‘artwork’ didn’t improve him none! 😉 )
I wouldn’t buy the painting – or the original photo. But the composition in the painting is so basic it looks like a quick and dirty photoshop montage, not something ‘artistic.’
My opinion, of course. I’ve seen better composition on Fiverr covers for $5.
Asides from the copyright issues, isn’t also against the law to use another’s likeness for commercial purposes without their consent?
That occurred to me too, but maybe this guy is considered a public figure and there’s some loophole that allows that? (Not sure what the loophole for public figures is exactly, but I figured there must be one or tabloids would be out of business.)
“the exclusive rights of the author of the adaptation would be dependent on the original photographer’s rights”
Does this mean that proceeds from the painting have to be shared with the photographer?
Is this significantly different then U.S. copyright law?
PG maybe it’s supposed to be ugly?
I’m with the Solna District Court — looks to me like an adaptation of the original work. Not a good adaptation, in my opinion.
It’s nice to have a celebrity comment, Sasha.
I feel like Homer Simpson looking through “The Far Side” calendar: “I don’t get it…I don’t get it…”
I don’t get what you mean…?…
Perhaps PG thinks you are really with Solna District Court – a judge or something?
THAT’S IT! Thank you, Lexi 🙂 Sometimes it takes me a while to get a joke..
(And no, I’m not really with Solna District Court!)
You’re still a celebrity, Sasha.
I found it quite interesting to compare the two images at the larger size. The painterly artist has changed the lines of the face and the position of the mouth in such a way that the subject looks sad and evokes my pity. Whereas the photograph depicts a man who scares me.
Art isn’t always meant to be attractive or pretty. In this case, the painter seems to be making a statement about an innocent man found wrongfully guilty.
(I know nothing about the Petterson case and the allegation. I’m merely responding to the two images, one a photograph, one a painting.)
Interesting observations. I would certainly agree that the painting is not meant to look pretty but rather to be some sort of political/social statement (which seemed clear to me from the article). I could see how those small changes to create a different impression could make the work transformative rather than derivative. But a fully original work? I don’t get that.
I agree with you that the changes are transformative, and thus that the painting is not merely derivative.
But isn’t that the basis for whether a work is considered to be infringing or not? I suppose the question is whether the changes ar sufficiently transformative.
Insufficient transformation would cause one to conclude that the work is in fact derivative enough to be infringing. Sufficient transformation would allow one to decide that the work was not derivative, and thus did not infringe.
I think I don’t wish to scrutinize the work closely enough or long enough to decide whether I think the changes are sufficiently transformative. 😉
From the article, it sounded like the court decided it was a wholly original piece of art, which I had thought went beyond ‘transformative’, but maybe my understanding of the whole ‘transformative’ aspect of copyright is not right. (It seems to me, logically, that a work of art can be transformative and therefore non-infringing without discounting the clear connection it has with a different piece of art as if sprang fully from the imagination of the second artist with no inspiration from the first work.) Or maybe the Swedish court analyzes things along different lines than the US court does.
Now you’ve gotten me interested in delving into the definition of “transformative” as applied to copyright. 😀
I went looking to see what The Copyright Handbook had to say about it. Most of the discussion seems to be in the context of fair use, but it seems relevant.
In the case spurring this discussion, I would say that th painting is not simply copied verbatim.
Concerning the term “derivative”:
That would seem to me to be the question with this photograph and this painting. How substantial is the amount taken? To me, the amount taken seems very substantial.
But there would seem to be a lot of subjectivity in deciding this question.
Here’s another passage from The Copyright Handbook that seems pertinent:
That may be why the court found it not to be infringing. Because the painting clearly is conveying a political or moral or emotional meaning that is not present in the photograph.
Thanks for prompting me to check this out, PG and Anon. I enjoy rabbit holes of this sort!
(Although I should be working on the diagrams of long sword fencing techniques that will go in the appendices of WIP!)
The painting is indeed unattractive, but then Mr. Petterson’s face in the photograph is also unattractive. But at least the photograph is an accurate representation of the face at a certain time; the painting has no such excuse.
Good!
And yes, that be one ugly son-of-a-bread-eater. (and the ‘artwork’ didn’t improve him none! 😉 )
I wouldn’t buy the painting – or the original photo. But the composition in the painting is so basic it looks like a quick and dirty photoshop montage, not something ‘artistic.’
My opinion, of course. I’ve seen better composition on Fiverr covers for $5.