The Swedish Supreme Court (SC) recently gave judgment in a high-profile copyright case concerning the alleged unauthorised reproduction of a photograph of Christer Pettersson; a former suspect in the murder case of Prime Minister Olof Palme. In its judgment, the SC held that the artist, who used a photograph of Christer Pettersson as model for an oil painting, had transformed the photographic work in such a way that he effectively created a new and independent work of art. Therefore, he was not deemed to have infringed the photographer’s copyright. In the judgment, the SC provides new guidance on how to make the distinction between an adaptation of an existing work of art and the creation of a new, independent one.
By way of case background, a photographer followed and photographed Christer Pettersson for a few days. One of the photographs taken by the photographer was a close-up portrait that was consequently broadly published in Swedish media. Without obtaining the photographer’s consent, an artist used the close-up portrait as model when he later created an oil painting named ”Swedish scapegoats” (Sw. “Svenska syndabockar”). The artist exhibited the painting, published a photograph of the painting on his website and sold posters containing the image of the painting. As a result, the photographer claimed that the artist had infringed the copyright to his photographic work.
The case turned on whether the artist’s painting was either (i) an adaptation of the photographer’s existing work of art, or (ii) a new and independent work of art. If the painting would be considered the latter, the artist’s rights in relation to his painting would be separate from the photographer’s rights and he could freely use and dispose of his painting. By contrast, if the portrait would be deemed an adaptation of the original photograph, the artist’s rights in relation to his painting would be dependent on the photographer’s rights. If that was held to be the case, the photographer would not be allowed to dispose of the painting, e.g. making copies of it, without obtaining the photographer’s prior approval.
In its judgement, the SC held that the painting must be assessed in its entirety. The SC noted that although Christer Petterson’s image is a central motif of the painting, the dominant composition of the painting differs from the photograph. Taking the painting’s composition into consideration, the SC found that the painting contains and communicates on a different meaning and message than the photograph. The SC claimed that the painting comes across as an allegory that subtly criticises the media’s need for “scapegoats” and becomes a commentary on society today. By contrast, SC described the underlying photograph as a “strong, photographic portrait”.
To summarise, the SC held that the artist had transformed the photograph in such a way that he had in effect created a new and independent work, expressing his individuality as an artist. Therefore, his consequent use of the painting did not infringe the photographer’s right to the underlying photographic work. The SC’s decision is particularly interesting as the SC makes a clear reference to the meaning and message of the painting compared to the underlying photographic work. This approach can be viewed as a deviation from the traditional view that physical and objective criteria form the basis of the assessment when comparing two works of art from a copyright perspective.
You can find the photograph and the painting here