Defining Trademarks as Investment in International Investment Law – Some Guidance from Bridgestone v. Panama

The Panama Canal. One of the biggest and most controversial US investments in Panama.

 

Guest post by Ivan Stepanov*

The relationship between intellectual property (IP) and international investment law is no longer at the fringe of the disciplines. The Philip Morris and Eli Lilly cases brought the uneasy relationship to the attention of a wider audience. The reason the cases rose to prominence was their intrinsic relationship with issues related to public health. Although not so apparent, both cases likewise contributed immensely in a jurisprudential manner, clarifying how IP will be treated in international investment law and arbitration. Following in their footsteps is Bridgestone v. Panama. Seemingly not immediately impactful, Bridgestone v. Panama brings us some novelties that can set the discourse for future IP investment cases.

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The Forgotten Right of Independent Creation – Judgments from the Finnish and Swedish Supreme Courts

(Note: The picture is unrelated to the Finnish case)

Setting the Stage

Copyright plays a very important role in the creative industries. But what also plays a very important role for the mere existence of those industries is inspiration. Virtually every musician or artist is inspired by other musicians or artists, every painter is inspired by other painters, that is the way the world works and denying this would be quite naïve to say the least. This short introduction brings us to the topic of this post. If you create an entirely new and independent work, you will not have to seek any permission from the copyright owner to reproduce or distribute your own work. This is the rule in many jurisdictions in the world. But if you use another’s work to make an adaptation, you would need permission. But where to draw the line?

Judgment of the Swedish Supreme Court

On 21 February 2017, the Supreme Court of Sweden had handed down a judgment (T 1963-15) in a quite interesting case. At the heart of dispute was a photograph and a painting which was alleged to infringe Swedish copyright law. The photographer had followed a person who was a suspect in the murder of the Swedish Prime Minister Olof Plame. The photographer managed to get a photo of the suspect, which was then used in the mass media. Another individual then used the photograph as a model and painted a work which he named “Swedish scapegoats”. The painter displayed the painting on the Museum of Modern Arts in Stockholm, published a picture of the painting on his website and sold posters of the painting. The question at dispute was whether the painter had infringed the copyright attached to the photograph.

The question was whether the work was an independent work or an adaptation, which is dependent upon the original work. The Supreme Court briefly compared the two works and did consider that one could, at a first glance, come to a conclusion that the painting would be an adaptation of the photograph. However, there were differences related inter alia to the technique used.

Additionally, the evaluation had to be made based an overall consideration. The Supreme Court held that the painting was indeed to be considered to be  an independent work. The Supreme Court considered the painting to have a different purpose compared to the photograph. The purpose of the painting was not to portray the individual, which was of course the main purpose of the photograph. Rather, the painting was created to critique the general need to have scapegoats in mass media and was also considered to be a commentary of the current times and society. The person depicted was considered a phenomena in the painting and a bearer of the symbolic message expressed by the painting.

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