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The first issue here is that she never registered her original work with any copyright registry. It's $55 for 750 photos for the US Copyright Office, which is more or less accepted worldwide. (Also, she's living in the US and working there.)

You don't have to register your art (including photos) to get copyright protection. Otherwise, poor people would get the screwed over even more - $55 is around a day's labour at minimum wage. Requiring registering just paves the way for companies to steal poor people's art and photos. Registering is completely optional, though it will sometimes help if you need to sue. There are other ways to prove stuff ownership, though.

Yes, poor people are being screwed over. You lose a whole set of available remedies in court if you don't register "timely". It's about as optional as health insurance. You're not forced to do it, but if anything goes wrong, you'll dearly regret your decision.

Also, she should have been suing to declare the painting a derived work of her photo. Drawing it was clearly transformative, so it's not a pure copyright infringement. But as a derived work, she would be entitled to receive revenue share from the painter. It's just that for that whole derived work thing to work, her photo needs to be registered first.

That leads to the second issue which is that it is now impossible to determine if the painting is a derived work off her photo, or if it is a derived work off one of the countless other images on the web that look pretty similar.

I did some image searches to find out if this photo was an ordinary reproduction of something commonly done but found only references to this case and a few references to Zhang's other work. Where/how did you find countless other pretty similar images?

If the court ruled that the work is not creative or unique enough to qualify for copyright protection, then why does it matter that the work was not registered with a copyright office? The implication of this would be that foreign artists would have more legal protection and rights in Luxembourg than Luxembourgers.

It's also fairly possible to demonstrate that it's a derivative work and that the artist would have had to have used the photo as a reference because the painting is a 1:1 reproduction of the photo, it's actually impressive how well it's reproduced. Flashing image warning: https://i.imgur.com/RERFdBZ.gif

As a nitpick, in this post you're saying it's a derived work but in a child comment you're saying it's a transformative work so it's not 'pure copyright infringement'. In pretty much every country, producing a painting using a reference photo is derivative and is 100% covered by copyright law to the point that it's the example legal scholars use to demonstrate what a derivative work is. It cannot be the case that the photographer can sue for revenue on the painting without it being a copyright violation because that's the legal mechanism for which the photographer has any rights to sue the painter. However that's not the case here, because the court ruled that the photographer has no rights or protection under copyright law because the photo was found to lack the creativity or uniqueness to be afforded protections by copyright law.

As far as 'transformative' goes, it's not a concept that exists in my European countries legislation, but it's a term legal scholars use to demonstrate when a derivative work can be considered fair use using vaguely defined terms such as whether the work substantially changes the 'meaning', 'emotion', or 'aesthetic' of a work, and examples of this are things like reviews or criticism of a work (e.g., movie) or things like a parody. Merely reproducing a photograph is not considered transformative enough to be considered fair use, and even making substantial changes to the photograph may not make it transformative enough to be considered fair use, much like taking a photo of an artwork is not transformative, producing a movie from a book is not transformative, transcribing music is not transformative, etc.

> The implication of this would be that foreign artists would have more legal protection and rights in Luxembourg than Luxembourgers.

No, the implication is that if you register your work for explicit copyright protection, you have more legal protection than the unregistered implicit copyright protection.

> As a nitpick, in this post you're saying it's a derived work but in a child comment you're saying it's a transformative work so it's not 'pure copyright infringement'.

Correct. Because it was transformed, it's a derived work.

> the court ruled that the photographer has no rights or protection under copyright law

The court only ruled that the photographer cannot stop the artist by saying this is a direct reproduction of her work, which it isn't. The court may well grant her a revenue share, but that's not what this trial was about.

> transformative enough to be considered fair use

Yeah, transformative is on a spectrum. If it is a bit transformative, you get a derived work. If it is a lot transformative, you get a derived work and the fair use exemption from paying the original artist.

Luxembourg is a signatory to the Berne Convention, which requires automatic registration of copyright and forbids requiring formal registration. (The US was a late signatory to the Convention and arguably is still in violation.) Author's rights under Berne include an exclusive right to reproduction of the work or any derivative works.

The painting is obviously derived from the photograph. The defendant's lawyers didn't even bother to argue otherwise; anybody with eyes can see. I would also argue that a photograph that apparently can be turned into Turandot by the addition of a sword hilt and an earring can't be that generic.

The article you link was cited in the original thread and completely lines up with the photographer's claims. None of your additional claims from this comment are in the article, so I'm not sure why you're citing it.

By the way, how much money does a copyright-judge make on a case like this, typically?