Wow. That's shocking. It seems hard to believe the court did not find in Jingna Zhang's favour. I wish her well with her case.
Hopefully nothing as shallow as a Luxembourg court finding in favour of a Luxembourg citizen and against someone of a different origin...

This is a clear case of copyright infringement. The solution, without the scandal and without the expense of a court case, would have been for Jeff Dieschburg to ask Harper's Bazaar Vietnam (or wherever he saw the image) who owned the copyright and could he please use it. Most professional publication groups get this sort of request every day. They charge a small fee for permitting non-exclusive use with the appropriate credit given. Writers and publishers of books are very familiar with this procedure. If done that way, the correct way, there would have been no scandal, no court case, no need for Dieschburg to hide his head in shame.

I'm surprised (but not amazed) at the Luxembourg judge being unable to see this; it's a small place and all the professional and political people know each other... They should have straightened out Dieschburg and handled the matter quietly with a payment to Jingna Zhang. Instead they contributed to an unnecessary international incident.

What makes the copyright infringement so clear is the number of elements directly copied and mirror-imaged. Dieschburg's input was absent in composition and all that follows from it, and even in colouration. This is clearly miles beyond merely taking inspiration from a seen photograph. It is clear to me that Dieschburg had the photograph, or its reproduction up on his board or his computer while he executed the painting.

Incidentally, plagiarism would be setting up another photoshoot with the same model, dressed the same, lit the same, with the same backdrop and props, and sold as another photographer's brainchild. Plagiarism is a heinous professional foul, and the accusation is defamatory; note that the provable truth of such an accusation isn't necessarily a defence in many jurisdictions, including possibly British colonial legacy states.

By comparison to plagiarism, copyright theft is also a form of theft but not necessarily felonious, nor total; the difference is often intent. Most often the remedy is a financial settlement between parties, and only in rare case where there is bad faith is there a penalty judgement in a copyright case. In most cases the settlement is a routine matter caused by initial ignorance rather than malicious intent to defraud. A very small percentage of temporary copyright infringements ever see the inside of a courtroom, and in those cases almost always one party is stubbornly entitled and arrogant -- and dead wrong!

Consider Teoh's example of reference material arriving from a client to an art director who is making an advertisement. The ownership of the art is unknown, but it is in any event used only for inspiration, not to copy directly. On the other hand, anyone with ad agency experience has seen layout artists copying off outlines directly from reference material. Copyright theft lies somewhere between these extremes, and the correct format in which to decide its value is a polite negotiation between the parties, not a court case.

There is so much free photographic material of the highest quality available online for merely giving the photographer a credit, that I'm amazed that Jeff Dieschburg needed to copy Jingna Zhang's admittedly striking photograph.

Who paid the model is irrelevant, a red herring. She was doing work for hire and has no copyright interest in the photograph, which belongs solely to the photographer (or to the magazine if the photographer was also doing work for hire).

So is the phenomenally stupid comment by the judge that the pose is generic a total red herring, as will be demonstrated on appeal. I don't understand why this case wasn't brought in the States in the first instance.

What makes the photograph unique is the photographer's choice of model, hairstyle, makeup, accessories, posture, props, lighting, other technical choices, etc, etc. This particular photographer took that particular photograph, and copyright belonging to her followed seamlessly. Included in her rights are all manners of viewing the original art of her photograph including mirroring and buggering around with the colours, in short all forms of image manipulation.

To answer Marialena's question, What Dieschburg did is copyright infringement. Where it falls on the scale between ignorant copyright infringement and plagiarism depends on Dieschburg's attitude when confronted with his liability for his deed and ultimately on his intention. Ignorance leads to infringement in the presence of a good attitude, which is then rewarded by being permitted to pay a modest fee. A bad attitude, especially if it forces a lawsuit on the injured party, is punished with a claim for exemplary penalties on top of restitution, the purpose being to warn off other would-be thieves. In the presence of a proven intention to defraud the copyright holder (and the buyer of the final art) by the painter claiming the inspiration for the photo as his own, plagiarism is proven and restitution and penalties may be multiplied many times. (In that sense, the Luxembourg judgement may be a blessing, as it is basically an admission of guilt with the wrong outcome.) In short, copyright infringement and plagiarism lie at the ends of a scale of the same thing, copyright theft, and the exact stop in any particular case depends on the guilty party's attitude when confronted and on his intention when he perpetrated the deed.

Furthermore, the judge and the painter appear to regard a photographer as a lesser artist than a painter, from whom the painter may steal with impunity. This is discriminatory nonsense.

The model may also be able to sue for professional damage by her image, which is her livelihood, being turned inside out by the painter without her consent. A good lawyer should get her a hefty financial judgement from a woke American jury for this lifelong damage to her professional career.

I'm not surprised Dieschburg has caught a disappearing act. He is in serious trouble as long as Jingna Zhang doesn't lose her nerve, and makes a point of moving the case Stateside, where jury awards are much bigger. She can worry later about collecting.

***
Yo, Teoh, I see that I've been owing you thanks for this --
https://www.parkablogs.com/content/plein-air-watercolour-tools-of-andre-...
-- since 2015... Now there's a case of bad attitude for you!
Thank you so much for your wonderfully informative blog.