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Is Jingna Zhang’s photograph a copyrightable work?

On 8th December 2022, Jingna Zhang lost her case in which she claimed that the defendant, a painter reproduced her work and infringed her copyright in Luxembourg. As she posted on Twitter, the judge refused to provide copyright protection to her work considering that the contested photograph on which a model holds flowers under organized lighting fails to meet the requirement of originality under EU case law.

With this regard, the primary question is what is the standard of originality in the EU. In light of the decision ruled in Infopaq International A/S v Danske Dagblades Forening (Case C‑5/08) (Infopaq I), the approach to originality is that the author of a work including computer programs, databases or photographs must own intellectual creation if he seeks legal protection under copyright law.

The key test for “authors’ own creation” confined by Cofemel decision introduces two cumulative conditions, in which the first condition is originality itself, in other word “the personality of its author” described as free expressions and creative choices which are not limited by technical considerations, rules or other constraints. The other condition is identifiability requirement, which means that the work should be the expression of the author’s own intellectual creation.

> Also Read: Ye faced with copyright infringement claim over Instagram photo

In particular, as for copyright protection for photograph, Article 6 of the Copyright Term Directive (2006/116/EC) provides that the sole condition for photographs copyright protection is the author’s own intellectual creation in accordance with Article 1. In the judgement of Painer v Standard VerlagsGmbH and others, Case-145/10, 1 December 2011, the court confirmed that a portrait photo was eligible for copyright protection as long as it is generated by free expression and creative choices such as the arrangement of the background, the subject’s pose and the lighting at the preparation stage.

Also, the judge held in Temple Island Collections Ltd v New English Teas Ltd case that the skill and labour in relation to the originality of a work are the element of visual significance. This guidance allows copyright protection for a work even when the author just uses commonplace techniques to produce his work but following his own aesthetic sense to produce the visual effect.

Is Jingna Zhang’s Photograph A Copyrightable Work?
© Ludvig Hedenborg (Pexels)

Coming back to Jingna Zhang’s photograph, considering all the elements of her work, such as the model’s costume, her make-up and pose, the background and lighting, if those components are created by the author and no negative adaptations could be traced, it is controversial that this work was excluded from copyright protection.     

More on Jingna Zhang

Jingna Zhang, also known as Zhang Jingna, is a highly acclaimed photographer recognized for her captivating and ethereal visual style. Born on May 4, 1988, in Beijing, China, Zhang’s talent and passion for art and photography emerged at a young age, leading her to become one of the most prominent photographers of her generation.

Zhang’s journey in the world of photography began when she moved to Singapore at the age of eight. Fascinated by the power of images to tell stories, she immersed herself in the works of master photographers and artists, drawing inspiration from their techniques and compositions. At the age of fourteen, she obtained her first camera and started experimenting with self-portraits, landscapes, and fashion photography.

Her exceptional talent quickly gained recognition, and by the age of eighteen, Zhang had her photographs published in several magazines. Her distinct style, characterized by dreamlike aesthetics, delicate lighting, and evocative storytelling, resonated with viewers worldwide, attracting clients and collaborators from various industries.

Jingna Zhang’s breakthrough came in 2007 when she won the prestigious Prix de la Photographie Paris (PX3) Gold Award at the age of nineteen, becoming the youngest recipient of this honor. This achievement marked the beginning of her international career and opened doors to numerous opportunities, allowing her to work with renowned fashion brands, magazines, and celebrities.

Throughout her career, Zhang has showcased her versatility, effortlessly transitioning between fashion, beauty, and fine art photography. Her portfolio boasts an impressive array of work that includes editorial spreads, advertising campaigns, celebrity portraits, and personal projects. Her photographs have graced the pages of esteemed publications such as Vogue, Harper’s Bazaar, Elle, and Marie Claire, among many others.

One of Jingna Zhang’s notable series is “Something Beautiful,” which explores themes of femininity, strength, and vulnerability. In this collection, she masterfully captures the essence of her subjects, often portraying women in ethereal settings with a combination of elegance and emotional depth. The series resonates with audiences worldwide, showcasing Zhang’s ability to evoke a sense of wonder and introspection through her art.

> Also Read: Types of Intellectual Property that can be found in a podcast

Jingna Zhang’s artistic vision extends beyond photography, as she has also ventured into the realms of film and storytelling. In 2015, she directed her first short film, “Legend of the Seahorse,” which premiered at the Cannes Film Festival. The film combines her unique visual style with a captivating narrative, further establishing her as a multifaceted artist with a deep understanding of storytelling through various mediums.

Beyond her commercial success, Zhang remains passionate about personal projects that allow her to explore her creativity and push the boundaries of her craft. She has exhibited her work in galleries and museums worldwide, garnering critical acclaim and admiration from both the art community and photography enthusiasts.

Jingna Zhang’s contribution to the world of photography extends far beyond her technical expertise and artistic prowess. As a successful Asian female photographer, she has become an inspiration and role model for aspiring artists, breaking down barriers and challenging stereotypes in a predominantly male-dominated industry. Her achievements have paved the way for greater representation and diversity within the field, encouraging others to pursue their creative passions fearlessly.

Conclusion

Today, Jingna Zhang continues to captivate audiences with her evocative and visually stunning imagery. With her unwavering dedication to her craft and a commitment to storytelling, she remains an influential figure in the world of photography, leaving an indelible mark on the industry and inspiring generations to come.

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Yann Tang

Yann is a Chinese Lawyer and Patent Agent specializing in intellectual property law, arbitration and litigation, and company compliances. She has Lawdit as an incoming Trainee Solicitor with a heavy emphasis on filing trademarks in China including Hong Kong. She helps clients in growing their business without legal hassles and commercializing their intellectual property. Since September 2021, she has been pursuing her LLM degree at Queen Mary University of London. In her spare time, she likes Post-Rock, photography, running, hiking and playing tennis.