> This is a 1:1 replica of the original, "printed" by hand, presented as own, and sold.
The ruling here does not contest that what was sold is a close replica of the original.
What was ruled here is that the original author was not able to convince the tribunal that there was enough originality in the creation of the photograph to have it protected against copies in the first place.
My interpretation from the article:
- The law differentiates "skill" from "originality"
- The author had to prove the originality in at least one aspect of the photograph (lighting, pose, post effects, palette, etc)
- The tribunal found that the proof of originality was not convincing, and declared the work as "skilled" but not "original".
- Thus the original photograph does not represent an original work of art, and can be copied freely.
Here is what the tribunal had to say about the proof of originality that were presented:
> Aucune précision n’est ainsi apportée quant à la composition et l’organisation de l’image, son cadrage, l’angle de prise de vue, le choix de la luminosité, le travail de réflexion du photographe, la mise en scène réalisée, la technique photographique mise en œuvre, etc., à part la remarque qu’il y aurait eu une ‚post-production‘ de la photographie, qui n’est cependant étayée par aucune précision quant aux travaux éventuels effectués et qui constitueraient une manifestation, voire expression de la personnalité de Jingna Zhang
Apparently the arguments of originality provided by the photograph were vague and non convincing, essentially revolved around post effects, but these were not detailed enough.
Apparently the defense was also able to provide numerous photographs from other authors that were close enough to reinforce the idea that it was not such an original work of art.