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Drawing Content of Other People's Photos May Constitute a Copyright Infringement
An object in a photograph does not receive copyright protection. Nonetheless, the Intellectual Property and Commercial Court's recent judgment states that drawing the content of another person's photo constitutes an infringement of such other person's copyright to the photo by reproducing the photo.
The Taiwan Intellectual Property Office (TIPO) has explained in its rulings that photographs are the attachment of light and shadow to a media while painting is the expression of lines and colors, and that as the two expression methods are different, changing the photo into a painting in most cases is an adaption of the photo into a derivative work. Although the derivative work receives copyright protection as an independent work, the adaption is subject to the license or permission of the copyright owner of the photo as the adaptation is his/her exclusive right. An adaption without such license or permission would constitute a copyright infringement.
Scholar Zhang Zhongxin pointed out that the above view of the TIPO is incorrect because copyright does not protect the people, objects or scenes taken in a photo, but the photograph itself (presenting the photographer's judgment in his/her arrangement of light and shadow, angle, layout, color, time, etc. of a specific subject). Hence, if a person does not directly copy another person's photo with a photographic equipment, but draws a picture of the photo and adds his/her own judgment and presentation of the depicted object, the drawing will not infringe the copyright of the photo but should receive copyright protection as an artistic work. The Taiwan High Court, Tainan Branch has confirmed in a civil judgment (Case No. 95-Shang-Yi-Tze-7) that the painter's depiction of natural creatures in another person's photographs is based on the painter's artistic views and painting skills, which should not be deemed as plagiarization of the photographs but demonstrated the painter's thoughts and creativity in terms of the overall combination of space, angle, lines, natural light and color. However, scholar Zhang Zhongxin still believes that the Court failed to clearly distinguish between expressions (protected by copyright) and ideas or concepts expressed through works (not protected by copyright) (cf. Article 10-1 of the Copyright Act).
Nonetheless, the Intellectual Property and Commercial Court's judgment (Case No. 111-Min-Chu-Su-Tze-80) states that the defendant's direct reproduction of the photographs by way of painting constitutes an infringement of the plaintiff's copyright to the photographs. The Court pointed out that scholar Zhang Zhongxin's article emphasizes that a photographer cannot claim copyright over the people, animals and landscapes photographed by him, and thus another person's drawing of the same objects does not infringe the photographer's copyright. However, in the subject case, the defendant was not simply painting the objects (i.e., the characters and background) in the photographs, but directly copied the photographs in their entirety in his paintings.
The Court cited the Supreme Court's following judgements in arriving at its own conclusion:
1. Whether there is copyright infringement should be carefully investigated, and the following two elements should be considered: contact and substantial similarity. Substantial similarity refers not only to quantitative similarity, but also qualitative similarity. Quantitative similarity refers to the amount of the work being plagiarized (depending on the nature of the work; for example, a realistic work requires more weight of similarity than a fictional work). Qualitative similarity lies in whether it is an important part. If the plagiarized part is an important part of the plaintiff's work, even if it only accounts for a small part of the plaintiff's work, the plagiarized part will constitute a substantial similarity (Supreme Court's criminal judgment Case No. 97-Tai-Shang-Tze-3121).
2. When judging whether works of artistic or aesthetic sensibility such as graphic, photographic, artistic or audio-visual works are plagiarized, it is often difficult or may be unfair to use the analytical and deconstructive methods that are used in literary works in making such determination. Hence, when determining qualitative similarity, special attention should be paid to the "total concept and feel" between the works (Supreme Court criminal judgment Case No. 97-Tai-Shang-Tze-6499).
The Court holds that the plaintiff's photographs and the defendant's paintings show the protagonists of the same gender, dress, demeanor and facial expression, have the same background, composition, silhouette and furnishings beside the protagonists, and have similar color tones. Although the defendant argued that his paintings were based on his own photos taken at the scene, the details in the defendant's photos and his paintings are different, and the protagonists' movements therein are not the same. These differences prove that the defendant did not draw the paintings based on his photos, but copied the plaintiff's photos. Although there are slight differences in the tone, light and shadow between the plaintiff's photographs and the defendant's paintings, the main tones are similar, and the "total concept and feel" of the two are consistent. Thus the defendant's paintings constitute a substantial similarity to the plaintiff's photographs.