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.

…Around One Year Later on the Other Side of the Gulf

On 28 March 2018, the Finnish Supreme Court (KKO:2018:21) handed down its judgment in a criminal copyright case where an individual had taken a photograph of a capercailzie (a bird) in 1991 and the photograph had been displayed on the website of this individual. Another individual had painted two paintings of a capercailzie, using the photograph as a model for the painting. This person had then offered the painting for sail in a gallery and on a website. The facts are quite similar to the case handled by the Swedish Supreme Court discussed above.

The Finnish Supreme Court compared the paintings to the photograph. The Supreme Court found that on a first glance the works look very similar. Inter alia the surroundings and position of the bird were considered to be similar and many details were considered identical. The differences were held to be insignificant when considering the works as a whole.

In fact, this case was not about independent creation and it appeared the court did not considered this possibility since it appears it was not raised in the proceedings. And such an argument may not have succeeded since the paintings were so similar. The case was to a large extent about whether a painting using a photograph as a model could be considered a “copy” within the meaning of the Finnish Copyright Act. The Supreme Court ruled in the affirmative and held there was a violation of copyright.

Questions and Comments

In both cases, the painter had used a photograph as a motive. In one of the cases, the painter was held to be liable for copyright infringement and in the other there was no infringement. What was decisive difference then? Could it have been the critique included in the painting in Sweden, or was it indeed the differences in the two works – or perhaps both? Further, would your view change if the Finnish painter had included an industrial plant also in the background and the name of the painting would have been something along the lines of “Industrial Pollution vs. Mother Nature”? Also, the question of independent creation was not even discussed in the Finnish Supreme Court case, so one could ask how comparable are these judgments in fact are?

The question of individual creation is a subject that is actually quite seldom discussed in copyright law in the Nordic countries. This is so even though it is fundamental and can in some cases be decisive to decide if there is an infringement at all. It may be pivotal to draw the line between a new individual work and an adaption. The first mentioned does not amount to copyright infringement while the second one does. The purpose of this post is to remind the readers of this important topic in copyright law and hopefully spark some discussion.

Vilhelm Schröder

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