Tuymans settlement and copyright exceptions

Posted on: October 5, 2015 by

It was announced last week that two Belgian creators had reached a settlement in a copyright dispute highlighting the role (and limits) of copyright exceptions. One was a photographer, Katrijn Van Giel, who had taken a photograph of Belgian politician Jean-Marie Dedecker that appeared in De Standard newspaper in 2010. It was a fairly unique shot: creatively cropped to reveal only the upper part of the subject’s face against a black backdrop. The other was the celebrated contemporary artist, Luc Tuymans, who had used Van Giel’s photograph as the basis for one of his own works – sound familiar? – an oil painting on canvas. Here are the two works, side by side:


Was this copyright infringement? Well, from a layman’s perspective, they do look awfully similar. And there was no question of serendipitous creation: it was clear Tuymans had  used Van Griel’s original as his inspiration. But if this was infringement, what defences were available to Tuymans? That would depend upon the jurisdiction. In the US, for example, there’s a chance that the open-ended fair use defence may be broad enough to catch this sort of thing, so long as Tuymans work somehow ‘transformed’ the original (did it create a new expression, new meaning or new message?).

In a judgment rendered in January this year, the President of the Antwerp Commercial Court found that under Belgian law this did constitute infringement and Tuymans couldn’t rely on any relevant exception. The exception he raised? Parody. If that’s the only possible defence under Belgian law, then it’s a bit of a stretch. Parody, of course, requires both an evocation of an existing work and some sort of humour or mockery. As mordant as Tuyman’s social commentary may be, it would be hard to call it funny.

Tuymans appealed the decision, but before the appeal was heard, the parties reached an agreement last week. This is a good outcome, because we all know how strenuous and expensive a jaunt through the upper levels of the court system can be. Not a good place for artists. It is to be avoided at all costs.

But where does the case leave us (or lead us)? As a lower court decision from Belgium, it doesn’t hold a lot of sway in the larger picture. However, it is indicative of the by-the-book approach such courts will take to the parody exception. Funny means funny, not cutting. It also raises questions about the status of the rest of the artist’s oeuvre, which relies heavily on photographic images. See a few examples below. This is of course done with purpose, arguably to resuscitate the medium of painting from the jarring hyperreality of the modern world (as was made clear during a 2004 Tate retrospective). But when a photographer has her own artistic vision, as Van Giel clearly did, how far is too far?

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Images: Katrijn Van Giel (An Giel: imagedesk.be); Luc Tuymans, A Belgian Politician, 2011; The Secretary of State, 2005; Audition, 2014.