Jingna Zhang vs Jeff Dieschburg: How's how to destroy your art career

Wow. That's shocking. It seems hard to believe the court did not find in Jingna Zhang's favour. I wish her well with her case.
Hopefully nothing as shallow as a Luxembourg court finding in favour of a Luxembourg citizen and against someone of a different origin...

I heard the "artist's" mother is a politician. Maybe that had something to do with it

It is not exactly a copyright infringement to paint a photograph because this photograph is not unique. It is a generic fashion pose. I wouldn't call it a plagiarism either. It is though the unlicensed and uncredited use of somebody else's work of art.

If that was a commission and the customer asked the artist to paint a portrait based on this photo it would have been a very successful painting. And I'm saying that because I have painted a good number of portrait commissions, that most of them were painted by photographs, as the commissioners were living somewhere else and they couldn't pose for me to make their portrait.

The heart of the matter though in this case, is that this particular artist didn't paint this portrait as a paid commission by the owner of the photograph and he didn't ask permission to use this particular photo that is a fashion photograph of a model, that it was probably paid to pose either by the photographer or it was paid but the company that commissioned the photo shoot to the photographer.

By the time that the photo is not in public domain then the artist ought to have asked for a permission to use the photograph or even pay a licence fee to use it, ( if the photographer asked for it) and not use it as a free reference just because he found it on Instagram ( or anywhere else). And he should have also credited the photographer either way.

The photograph might not be unique but it still is a property of the photographer, who at the very end paid the model and so she has every right to sell the photograph or or licence it for any other use.
Photographers have to make a living too you know! And models don't pose for free either!

My point is that this case falls somewhere in between infringement and plagiarism and that is the reason why the court couldn't decide what to do with it.
Copyright infringement exists when you take somebody else's unique work or part of this work and you try to pass it as yours.
Plagiarism on the other hand exists when you try to imitate somebody else's idea or finished work on the same medium. It would have been plagiarism if this guy photographed this particular model in the same pose with the same clothes. Or another model with the same clothes and the same pose. Then is plagiarism of the concept.

But if he hired this model and photographed it in a similar pose with completely different clothes or naked ( here comes the pose that is generic) and used the photographs to make the painting, nobody would have accused him for anything because he would have paid the model and he would have set up the whole thing with his own means. Clothes etc. The model and his face is for hiring after all. If you pay the model to pose for you, you can tell her to pose on whatever pose you like, even this one. This particular set up as a whole is copyrighted, neither the model individually, nor the pose individually, not even the clothes.

The problem is that he took the photo of a well known photographer, he flipped it and changed the colours and he painted it as a portrait without being commissioned to use the photo, or ask for permission or pay any license and giving credits to the photographer.

That shows if anything else laziness and disregard of the rules and (why not?) the netiquette that has to be followed in such cases. But it is not completely illegal because it is not illegal to be inspired by a photograph or paint the face of your favourite model as long as you ask for a permission to use the photo, ask for fair use, or hire the model yourself.

This is a clear case of copyright infringement. The solution, without the scandal and without the expense of a court case, would have been for Jeff Dieschburg to ask Harper's Bazaar Vietnam (or wherever he saw the image) who owned the copyright and could he please use it. Most professional publication groups get this sort of request every day. They charge a small fee for permitting non-exclusive use with the appropriate credit given. Writers and publishers of books are very familiar with this procedure. If done that way, the correct way, there would have been no scandal, no court case, no need for Dieschburg to hide his head in shame.

I'm surprised (but not amazed) at the Luxembourg judge being unable to see this; it's a small place and all the professional and political people know each other... They should have straightened out Dieschburg and handled the matter quietly with a payment to Jingna Zhang. Instead they contributed to an unnecessary international incident.

What makes the copyright infringement so clear is the number of elements directly copied and mirror-imaged. Dieschburg's input was absent in composition and all that follows from it, and even in colouration. This is clearly miles beyond merely taking inspiration from a seen photograph. It is clear to me that Dieschburg had the photograph, or its reproduction up on his board or his computer while he executed the painting.

Incidentally, plagiarism would be setting up another photoshoot with the same model, dressed the same, lit the same, with the same backdrop and props, and sold as another photographer's brainchild. Plagiarism is a heinous professional foul, and the accusation is defamatory; note that the provable truth of such an accusation isn't necessarily a defence in many jurisdictions, including possibly British colonial legacy states.

By comparison to plagiarism, copyright theft is also a form of theft but not necessarily felonious, nor total; the difference is often intent. Most often the remedy is a financial settlement between parties, and only in rare case where there is bad faith is there a penalty judgement in a copyright case. In most cases the settlement is a routine matter caused by initial ignorance rather than malicious intent to defraud. A very small percentage of temporary copyright infringements ever see the inside of a courtroom, and in those cases almost always one party is stubbornly entitled and arrogant -- and dead wrong!

Consider Teoh's example of reference material arriving from a client to an art director who is making an advertisement. The ownership of the art is unknown, but it is in any event used only for inspiration, not to copy directly. On the other hand, anyone with ad agency experience has seen layout artists copying off outlines directly from reference material. Copyright theft lies somewhere between these extremes, and the correct format in which to decide its value is a polite negotiation between the parties, not a court case.

There is so much free photographic material of the highest quality available online for merely giving the photographer a credit, that I'm amazed that Jeff Dieschburg needed to copy Jingna Zhang's admittedly striking photograph.

Yes Andre but the model is available for hiring and the pose is generic. What makes this image so unique in order to be a subject of copyright other than the fact that someone else paid the model and someone else photographed it? It is not that much about the content but more about who paid the model! lol
If Jeff Dieschburg paid himself this model to pose from life at the exact same pose holding roses would that have been a copyright infringement or plagiarism?

Who paid the model is irrelevant, a red herring. She was doing work for hire and has no copyright interest in the photograph, which belongs solely to the photographer (or to the magazine if the photographer was also doing work for hire).

So is the phenomenally stupid comment by the judge that the pose is generic a total red herring, as will be demonstrated on appeal. I don't understand why this case wasn't brought in the States in the first instance.

What makes the photograph unique is the photographer's choice of model, hairstyle, makeup, accessories, posture, props, lighting, other technical choices, etc, etc. This particular photographer took that particular photograph, and copyright belonging to her followed seamlessly. Included in her rights are all manners of viewing the original art of her photograph including mirroring and buggering around with the colours, in short all forms of image manipulation.

To answer Marialena's question, What Dieschburg did is copyright infringement. Where it falls on the scale between ignorant copyright infringement and plagiarism depends on Dieschburg's attitude when confronted with his liability for his deed and ultimately on his intention. Ignorance leads to infringement in the presence of a good attitude, which is then rewarded by being permitted to pay a modest fee. A bad attitude, especially if it forces a lawsuit on the injured party, is punished with a claim for exemplary penalties on top of restitution, the purpose being to warn off other would-be thieves. In the presence of a proven intention to defraud the copyright holder (and the buyer of the final art) by the painter claiming the inspiration for the photo as his own, plagiarism is proven and restitution and penalties may be multiplied many times. (In that sense, the Luxembourg judgement may be a blessing, as it is basically an admission of guilt with the wrong outcome.) In short, copyright infringement and plagiarism lie at the ends of a scale of the same thing, copyright theft, and the exact stop in any particular case depends on the guilty party's attitude when confronted and on his intention when he perpetrated the deed.

Furthermore, the judge and the painter appear to regard a photographer as a lesser artist than a painter, from whom the painter may steal with impunity. This is discriminatory nonsense.

The model may also be able to sue for professional damage by her image, which is her livelihood, being turned inside out by the painter without her consent. A good lawyer should get her a hefty financial judgement from a woke American jury for this lifelong damage to her professional career.

I'm not surprised Dieschburg has caught a disappearing act. He is in serious trouble as long as Jingna Zhang doesn't lose her nerve, and makes a point of moving the case Stateside, where jury awards are much bigger. She can worry later about collecting.

***
Yo, Teoh, I see that I've been owing you thanks for this --
https://www.parkablogs.com/content/plein-air-watercolour-tools-of-andre…
-- since 2015... Now there's a case of bad attitude for you!
Thank you so much for your wonderfully informative blog.

I don't disagree with you Andre about what Dieschburg ought to have done. To ask for permission or pay a licence in order to use the image and I don't disagree that he lied when he claimed that the concept of the portrait was his idea.
But I'm pretty sure as well, that what made things worst for him is that he won a competition and found on top of that a buyer for the portrait whose concept and model were paid by somebody else! That is the heart of the matter IMHO!

P.S @Teoh. I'm pretty sure that there is an option on your comments' dashboard, that allows those whose comments you have already approved once, to post more comments without further approval or moderation.

Both Andre and I visit often your blog and personally I comment quite often on your blog posts.
So change the settings please and let the discussion unfold!

Her appeal trial finished.

She won.

As is only appropriate.