Singaporean photographer loses in Luxembourg plagiarism trial against local painter
23 December 2022
In June 2022, Singaporean photographer Jingna Zhang accused Jeff Dieschburg, an art student from Luxembourg, of plagiarizing her work.
Zhang’s photograph features an Asian model, hair held up with some loose strands. Dieschburg’s painting is very similar, its subject an Asian woman bearing a strong resemblance to the lady in Zhang’s photo. Their hairstyles, attire and poses also have striking similarities.
The figurative painter’s work won in a competition in Strassen, Luxembourg with a cash prize of1,500-euro (US$1,570). It was also
up for sale while on exhibit at the Commune de Strassen.
In early December 2022, a district court in Luxembourg determined that Dieschburg did not commit plagiarism. According to Zhang, the court said the model’s pose in her photo is not unique.
Citing they are not experts in Luxembourg IP Law and their opinions come from the Singaporean legal perspective, Mark Teng, executive director of that.legal in Singapore, said: “Originality is the threshold requirement for a work to be protected by copyright. The work need not be looked at as a whole and not all elements of a work necessarily enjoy or do not enjoy copyright protection. The question here is, which part of the work is original, and hence protected?”
He mentions the adage ‘Copyright protects the expression of ideas rather than the ideas themselves.’ The subject matter in the photo is the model. The expression of the subject matter are presumably the model’s pose, colour scheme, angle of the shot, among others. These are the elements of Zhang’s work that are protectable by copyright, not the image of the model which is the subject matter.
“We believe that the Luxembourg court focused mainly on establishing whether copyright subsisted in the model’s pose for a simple reason – it was the only ‘expression’ in the work that was truly copied by Dieschburg’s painting. In the painting, the image is flipped, the colour scheme is different, there is an addition of dangling earring and the presence of what appears to be a sword handle in the background. If the pose is the only thing that was copied,” Teng explained, “then it is the only thing that could possibly result in copyright infringement.”
“Ultimately, the court held that the pose was not original, which meant that it is not protected by copyright,” Teng added. “The court did not actually have to deal with the issue of infringement, not because there was no copying, but rather because what was copied was not protected by copyright.”
Zhang's lawyer said they will appeal.
- Espie Angelica A. de Leon