Recent trends towards ‘photorealism’ in painting are triggering copyright infringement claims by photographers who believe that they have rather more than inspired subsequent daubs. But surely a painting can’t infringe copyright in a photograph?
The Oakham Galleries, Darren Baker, Suki Urquhart and Fritz von der Schulenburg
In 1986 photographer Fritz von der Schulenburg snapped a carefully arranged interior scene in the Scottish home of gardening writer and designer Suki Urquhart. Featuring a wide variety of basketware with an assortment of floral contents, the scene featured a distinctive, rustic staircase leading off to the left and an open doorway behind the carefully arranged baskets with a period wooden chair clearly visible through the doorway.
The photographs were published in a 1988 book of interiors. Nothing particularly surprising here, but what was surprising for Suki and Fritz was to see, in 2005, an advertisement in The Spectator for a London gallery featuring a pastel on show by one Darren Baker with a price tag of £3,000.
The pastel, entitled "Country Cottage," bore an uncanny resemblance to the Urquhart/Schulenburg photograph, shot nearly 20 years before. Exactly the same variety of differently shaped basketware was featured, with virtually exactly the same floral contents, a mirror image of the rustic stairway and a photographic likeness of the open doorway with the period chair behind.
Solicitors for Urquhart/Schulenburg have asked Mr Baker for details of the location that was the inspiration for his pastel. Mr Baker's reply so far has been a robust denial that anything untoward has occurred, asserting that his pastel is based on sketches he made of the interior of a friend's house in Yorkshire.
The lawyers for Fritz and Suki have replied asking for the exact address of the location in Yorkshire whilst they consider their position at law.
Why this matters:
Mr Baker's pastel is an example of the current trend for "photo realistic production," where at first blush, the painting could easily be mistaken for a snap. Although we wait to see if the Baker/Schulenburg/Urquhart case is in a different category, the disadvantage of this trend can be that if the images in question are "inspired by" carefully composed photographs, there can be an exposure to allegations of copyright infringement.
There may be cases where a photograph of a standard house interior may struggle to meet the test of "originality" for a copyright work, on the other hand, where care and skill has clearly gone into composing the particular image and its combination of interior and objects, there would be little doubt that the photograph attracted protection as a copyright work.
Sadly, tinkering only with various items within an overall image is unlikely to make a difference. The test will still be whether the later work is a copy of a "substantial part" of the earlier in quality, not quantity terms. Advertisers and their agencies contemplating the use of images which are inspired by existing photographs or paintings will no doubt be watching the progress of this case with interest.