Plagiarism or not, that is (no longer) the question here

By Laura TomassiniLex Kleren Switch to German for original article

The case of Zhang against Dieschburg has made waves in Luxembourg and far beyond the borders of the Grand Duchy. At the beginning of December, the court ruled in the first instance that the student had not copied because the photo used as inspiration lacked originality. In an interview, photographers comment on the decision, which came unexpectedly for many.

"We photographers are now almost like fair game, with whom you can do anything." With his words, Yves Kortum expresses what many in the national and international photography scene are currently feeling. On December 7th, the Luxembourg court handed down a judgement in a plagiarism case that had already become the focus of public attention in the summer and has polarised the art milieu ever since. In the meantime, "plagiarism" should actually be deleted from the word, because according to the District Court of the City of Luxembourg, the oil painting "Turandot" by Jeff Dieschburg, a diptych (two-part painting, ed.), which was published at the eleventh Art Biennale in Strassen and awarded a prize, is precisely not a copy of the photograph of the same appearance by the American photographer Jingna Zhang.

"However, she does not describe any element that would enable the court to identify the personal creative achievement of Jingna Zhang that would give the disputed photograph sufficient originality to qualify it as a photographic work protected by the 2001 Act", reads the judgment, which was to decide on the copyright of the image's content and composition. It continues: "Jingna Zhang thus fails to prove the extent to which the disputed photograph reflects her personality, which is a necessary condition for protection under the 2001 Copyright Act." The decisive argument for the legal decision, which nullifies Zhang's charge of copyright infringement, is the originality of her image, which was taken as part of a fashion shoot for the Vietnamese verison of the magazine Harper's Bazaar in 2017.

Displeasure in the photography scene

The pose of Korean model Park Ji Hye photographed by Zhang resembles, according to the judgement, numerous other poses already photographed, there was no precision to the creation of the photograph, and the retouching demonstrated was "merely for the purpose of brightening the general colours, playing with light contrasts, refining the model's skin texture, smoothing out imperfections and adding make-up" – all post-processing that does not witness originality, at least that's what the court ruling says. A damning conclusion for a field of fine arts that often has to contend with prejudice anyway in the digital age and due to the ever-improving technology of smartphones. Maître Gaston Vogel, Jeff Dieschburg's lawyer, also describes today's (fashion) photography, as it is common in big campaigns, as "pushing the button" – something he could have done himself.

Jingna Zhang made "no contribution at all" to the final photo, the lawyer specifies in an interview with apart TV, after all, it was a "collective work" by the modelling agency, director, hairdresser, make-up artist, fashion designer and photographer, and not a work that was entitled to copyright. While Vogel's arguments were well received in court and his client won the case in December, Luxembourg's photographers are displeased with the ruling. "I find it an insult to every photographer, like accusing a film director of not having an impact on the film because someone else did the make-up", says Patrick Hoffmann, amateur photographer and council member of the Luxembourg Street Photography Collective, about the court's manifesto.

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