UPDATE: JInga Zhang won her appeal in MAY 2024 :)
Images: Jeff Dieschburg and Jingna Zhang, edited by @zemotion/Instagram
I know I only have a very small platform, but I feel it is an imperative for me, a fellow creative, to speak up about a very unfortunate copyright ruling – a precedent which threatens to degrade the livelihood of artists on an international level.
If you haven’t heard of US-based, Singaporean photographer Jingna Zhang’s copyright lawsuit against Luxembourgish art student Jeff Dieschburg, here is a short recap:
In June 2022, Zhang reports on her social media accounts that Dieschburg not only created an oil painted, one-to-one copy of her photograph, he also exhibited his version at the Commune de Strassen Biennale, and won a €1,500 prize for it. Internet sleuths uncover that this isn’t the first time Dieschburg has appropriated the works of at least one other photographer, but by then Dieschburg has gone incognito mode and pretty much immediately lawyered up.
Fast forward to the court proceedings in December 2022, in which a civil division at the Luxembourg District court finds Zhang’s claim unfounded, due to a lack of originality in the photographed pose.
That was just an overview; if you would like to learn more about the case, I highly suggest the following links:
Jeff Dieschburg vs. Jingna Zhang – eine Chronologie by Luxemburger Wort. It’s in German, but very well documented, and you’ll get a coherent English version with an auto-translator.
Burden of proof “particularly high” in Zhang-Dieschburg case by Delano. This explains the court ruling and different copyright laws.
Jingna Zhang Interview by RTL Today Radio. Short overview of the case in English.
You may wonder, why should we care, nothing original exists under the sun, and the law is the law. And what can we do about this, anyway?
One: I propose that we care because intellectual, creative work – maybe more the latter – is so rarely recognised as such. What we see in the end is often a two-dimensional image, which resulted from hours of careful contemplation, the mobilisation of resources, and physical work. Jingna herself shares the meticulous work she puts behind her commercial photoshoots here.
And yes, there is work that is physically more demanding, more strenuous, more life-saving. The issue is, if we don’t recognise intellectual, creative work as work – then how far can we push the boundary? We already have the issue of not recognising child care and nursing staff adequately for their labour. There are countless other examples. If we don’t recognise where work begins, whether that’s because of the type of work or the person that’s doing it – then we risk setting up a slippery slope of labour loss that could tear our infrastructures apart.
via: copyright.gov
In fact, we already have labour-affirming copyright laws in place, for example in Swiss law, where the author “is not obliged to demonstrate that there is originality.” And under US doctrine, even fair use of copyrighted work is limited, as exemplified in the Shepard Fairey vs. The AP case, which ended, at least, in a settlement, with both parties sharing rights over the disputed “Obama – Hope” image.
Two: True, nothing is completely original, everyone’s expression is an amalgamation of those that came before. But if no synthesis takes place, and the work is copied from a living artist, whose oeuvre is protected under copyright until 70 years after their death, then we can sensibly speak of a kind of theft: reaping the benefits of a two-dimensional object which another spent hours of intellectual, creative work bringing to that stage in the first place. For clarification, theft refers to copied work intended for profit, and Jingna herself has stated multiple times – for example in court and the RTL Live interview – that she does not have a problem with people using her work for artistic studies.
In the Zhang vs Dieschburg case, I vehemently disagree with the court verdict that the photo and its copy share only a pose in common. Consider the hair, the arrangement of the flowers, the falling of the clothes, the general distribution of lights and darks. All of these factors were appropriated. These elements may have not resulted solely from Zhang’s efforts, but at least the parties involved were paid for their time and efforts.
Further, I cannot speak for Jingna Zhang’s financial status, but is it truly fair for a person who resides in Luxembourg, a country with the third highest GDP per capita in the world, to profit so easily from the work of someone else? We are not talking about someone taking desperate measures to survive; this was a truly unnecessary transgression, in my opinion.
Three: What can we do? I guess you got me there. I am not a lawyer, and though I live quite close to the Luxembourgish border, there is really not much I can do to influence the laws and politics of this tiny little country. And ultimately, I know that most people probably don’t have the time to care about this niche issue, after all, the world’ kind of on fire.
But I hope that I can ask you to care – firstly, about the recognition and fair enumeration of work in its varied forms. Secondly, I think the least that we can do is show Jingna Zhang our moral support, especially for the upcoming appeal, which was originally scheduled for April 2023.
We can let her know, the best we can, that what affects her affects us, too. We are on your side.
As for me personally, I hope this all will be resolved as soon as possible, with a fair outcome, and that I was able to argue my case here. I would love to hear your thoughts. Please share if you can!
Sources:
Jeff Dieschburg vs. Jingna Zhang – eine Chronologie by Tom Rüdell, Luxemburger Wort, 09.06.2022.
Burden of proof “particularly high” in Zhang-Dieschburg case by Lydia Linna, Delano, 24.01.2023.
Jingna Zhang Interview with Sam Steen, RTL Today Radio LIVE, 09.06.2022
Zhang Jingna Walks Us Through a Commercial Photo Shoot, from Request to Postproduction by Zhang Jingna, Profoto, 03.04.2014.
Why America's childcare system is crumbling and its workers are begging for help by Juliana Kaplan and Madison Hoff, Business Insider, 23.04.2023.
Caregivers face poor work conditions in Germany by Grzegorz Szymanowski, Deutsche Welle, 07.02.2021.
Why Do Employers Lowball Creatives? A New Study Has Answers by Nastia Voynovskaya, KQED, 23.05.2019.
The gender pay gap in the health and care sector a global analysis in the time of COVID-19, World Health Organization, 13.07.2022.
Subject Matter and Scope of Copyright – 107. Limitations on exclusive rights: Fair use via copyright.gov.
Obama Hope Poster Lawsuit Settlement a Good Deal for Both Sides, Says Kernochan Center Director by Columbia Law School, 11.01.2011.
GDP per Capita by Country 2023 via World Population Review.
UN says climate change ‘out of control’ after likely hottest week on record by The Guardian, 07.07.2023.