Dieschburg v Zhang: Luxembourg court denies originality of photograph in copyright case

The controversial decision sets a dangerous legal precedent for the art community, says Florian Poncin of Brucher Thieltgen & Partners.

For many a lawyer or copyright law enthusiast, the Jeff Dieschburg case was as good as settled even before it was pleaded before a court of law.

The case was factually simple: Jeff Dieschburg, a Luxembourg artist, was criticised by photographer Jingna Zhang for alleged plagiarism of one of her photographs. Said photograph captures in a sombre, melancholic background a dishevelled woman, wearing scarlet lipstick and light clothing. At first glance, the setting, light and colours of the photograph were chosen and modified by Zhang, as the photographer was clearly playing with tones and shadows. Arguably, Dieschburg’s picture greatly evoked the feeling and forms of Zhang’s photograph.

Such circumstances led many to believe that the case was also legally simple. Indeed, under EU and Luxembourg law, once a creation passes the threshold of “originality” it is protected by copyright and any unauthorised use of such original work is considered illegal, for instance when said original work is plagiarised.