Dieschburg v Zhang: Luxembourg court denies originality of photograph in copyright case
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.
Astoundingly, the recent decision of the District Court of Luxembourg seems to differ with the opinion of Zhang, her lawyer and, possibly, with a large fraction of the general public. In fact, the District Court just rendered a decision in the case which opposed Dieschburg and Zhang, rejecting the plaintiff’s claim that Dieschburg violated Zhang’s copyright on her photograph.
At time of writing, the full decision is not yet publicly available, although it is now known that the focus and main rationale of the decision is that, allegedly, Zhang’s photograph is not original and thus does not enjoy legal protection against (alleged) plagiarism.
Such a decision might fly in the face of all preceding EU and Luxembourg case law on the concept of “originality”. Indeed the threshold required by the courts of law for a work (of art, or otherwise) to be qualified as “original” and thus enjoy legal protection is very, very low. One such famous example and clarification regarding this legal concept is the 2011 CJEU Painer case in which the EU judges explained that: “a portrait photograph can […] be protected by copyright if, which it is for the national court to determine in each case, such photograph is an intellectual creation of the author reflecting his personality and expressing his free and creative choices in the production of that photograph” [paragraph 99 of the case].
No other criterion is required by law for a photograph to be “original” and thus protected against plagiarism. In other words: (i) the quality of the photograph’s creation, (ii) the market value of the work, (iii) the fame of the work or its artist are not relevant when one has to assess whether a photograph is original or not. So long as creative choice was available to the artist and he or she used it to infuse the creation with its personal touch, legal protection follows.
Given the ease with which one can claim originality for his/her work, experts tend to first assume that it exists before looking for clues as to why it might in fact not be the case. That is why lawyers often half-joke amongst themselves saying that their toddler’s drawing made with crayons during tea time does enjoy copyright protection. This is, at the very least on principle, actually a correct statement.
Most if not all Luxembourg judges do, in fact, follow the above interpretation given by the CJEU judges, a previous decision of the District Court of Luxembourg [TA Lux., com. march 21, 2014, no. 153.803] even explicitly stated that (free translation) “In matters of photography, the courts generally analyse the choices made by the author to deduce that he has marked the work with his personality. The choices must reveal the personality of the creator in order to justify copyright protection.”
