ARTISTIC IMITATION — TRANSLATION OR INFRINGEMENT

Copyright laws generally enure to the benefit of a creator to ensure just rewards and recognition are accorded for their intellectual efforts and the public can, where they need to, have access to such creative works under a structured framework of limitations, exceptions and recognition.

As the digital creative space evolves, it presents new challenges with copyright protection. It broadens the scope and meaning of ‘use’ and ‘copy’ of a copyrighted material and places on the Court the interpretation of what amounts to an infringement. The recent judgment of a Luxembourg Court in Zhang v. Dieschburg gives an insight to the mind of the law and the possible scenarios and instances where the reproduction or use of a work may be deemed as copyright infringement. In that case, the Court on appeal held that Dieschburg’s painting of Zhang’s photograph amounts to a violation of Zhang’s copyright in the work as it referenced Zhang’s work without consent or attribution.

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Zhang v. Dieschburg

In 2017, Zhang took a photograph for a Harper’s Bazaar Vietnam cover shoot. In June 2022, Zhang began raising concerns on social media on the uncanny similarity between her photograph and Dieschburg’s painting and how it infringes her copyright in the work. Dieschburg exhibited the painting which he named Tuarandot, winning the 11th Biennale of Contemporary Art Award which also came with a €1,500 prize money. In 2022, Zhang instituted an action against Dieschburg. In his defence, Dieschburg argued that as a figurative painter, he needed a reference for his work and the photograph was simply the reference for his painting. He also argued that the medium was different from Zhang’s as his was a painting and not a photograph and by this difference, cannot amount to an infringement or plagiarism of Zhang’s photograph. The Court ruled in favour of Dieschburg and held that the model’s pose in the reference photo was not unique to Zhang.

On appeal, the Court ruled in favour of Zhang. The Court held that the use of a different medium was irrelevant, the fact that the work was readily available online was irrelevant and the artist still needed to obtain consent before using Zhang’s work. The Court ordered Dieschburg to pay the sum of €1,500 to Zhang as legal costs for the action and ordered that he should not exhibit the painting. Failing to comply with the order of the Court, he would be liable to a penalty of €1,000 for each day of default up to a maximum fine of €100,000.

The Protection of Photographs under Nigeria’s Copyright Act

While a similar context as in Zhang’s case has not been adjudicated by the Nigerian courts, the extant Copyright Act (“Act”) in Nigeria seems to have provisions that would enure for the benefit of a creator in the same position as Zhang. The Act vests initial copyright in a work in the author and by necessary implication, non-exclusive license to exploit the work for non-commercial purposes, on whomever commissioned the work.

The Act recognises the category of works eligible for copyright protection in the following:

(a) Literary works;

(b) Musical works;

(c) Artistic works;

(d) Audiovisual works;

(e) Sound recordings; and

(f) Broadcasts.

Works falling into the category above would however only be eligible where “(a) some effort has been expended on making the work, to give it an original character; and (b) the work has been fixed in any medium of expression known or later to be developed, from which it can be perceived, reproduced or otherwise communicated either directly or with the aid of any machine or device”.

The Act further describes an artistic work to include photographs not in an audiovisual work, paintings, drawings, engravings, prints, works of sculpture, building models articles of handicraft, among others. Accordingly, a photograph created by a person falls within this category and would be protected by the Act for the duration conferred under the Act (in the case of photographs, 50 years after the work was created).

Would Nigerian Courts come to the same conclusion as the Court in Zhang in similar circumstances?

Having ascertained that photographs fall within the category of works protected under the Act, the pertinent question is whether a Nigerian Court would by the Act, arrive at the same conclusion as the Luxembourg Court. It is important to note that Section 36(a) of the Act specifically states that “copyright is infringed by any person who without the authorisation of the owner of the copyright, does or causes any person to do an act, which constitutes a violation of the exclusive rights conferred under this Act”.

We have highlighted above that copyright in a work confers the exclusive right to use and authorise the reproduction, publication, inclusion in an audiovisual work, broadcast, communicate, make available to the public by exhibition and adapt the work. By logical inference, the translation of a photograph to a painting would ordinarily be an infringement of the copyright of the creator or author of the photograph.

Further, the Act defines copy as “a reproduction in any form including a digital copy”. The implication of this is that where, as in Zhang above, a photograph is replicated or reproduced whether as a painting or as a digital work, the Court may be inclined to construe such act as infringing the copyright of another. Hence, rendering the work in another medium is irrelevant. As far as the work can be adjudged a reproduction of the original without licence or permission, it would amount to an infringement of the original.

Notwithstanding the above, the Act also recognises that at the time of infringement, the infringing person may be unaware and had no reasonable grounds to suspect that copyright subsisted in the work. In such instances, the author suing for the infringement will not be entitled to any damages against the infringing party in respect of the infringement but will be entitled to an account of profits in respect of the infringement. This protection afforded by the Act cannot however be extended out of context to cloak an infringing party with immunity for a work he should and would reasonably expect to know that copyright subsists in.

In sum, Nigerian Courts would likely come to the same conclusion as the Court in Zhang in similar circumstances. The entirety of the Act is premised on the protection of the rights of authors and creators. Invariably, any act or omission targeted at exploiting or circumventing these rights would be frowned on by the Courts.

Conclusion

Infringement of copyright in the digital age would take new and evolving patterns that may be novel and untrodden terrain for the Courts. Fortunately, the posture of the Act and by extension, the interpretation and application of the law by the Courts would be geared at protecting the rights of authors and creators to ensure that just rewards and recognition for their intellectual efforts are realized. On this basis, it is immaterial that the original work is a muse, or the infringing work is a translation of the original. The Court may well find that such reproduction in whatever form amounts to an infringement of copyright.