[Galanwe]

> This is a 1:1 replica of the original, "printed" by hand, presented as own, and sold.

The ruling here does not contest that what was sold is a close replica of the original.

What was ruled here is that the original author was not able to convince the tribunal that there was enough originality in the creation of the photograph to have it protected against copies in the first place.

My interpretation from the article:

- The law differentiates "skill" from "originality"

- The author had to prove the originality in at least one aspect of the photograph (lighting, pose, post effects, palette, etc)

- The tribunal found that the proof of originality was not convincing, and declared the work as "skilled" but not "original".

- Thus the original photograph does not represent an original work of art, and can be copied freely.

Here is what the tribunal had to say about the proof of originality that were presented:

> Aucune précision n’est ainsi apportée quant à la composition et l’organisation de l’image, son cadrage, l’angle de prise de vue, le choix de la luminosité, le travail de réflexion du photographe, la mise en scène réalisée, la technique photographique mise en œuvre, etc., à part la remarque qu’il y aurait eu une ‚post-production‘ de la photographie, qui n’est cependant étayée par aucune précision quant aux travaux éventuels effectués et qui constitueraient une manifestation, voire expression de la personnalité de Jingna Zhang

Apparently the arguments of originality provided by the photograph were vague and non convincing, essentially revolved around post effects, but these were not detailed enough.

Apparently the defense was also able to provide numerous photographs from other authors that were close enough to reinforce the idea that it was not such an original work of art.

[samastur]

It's an idiotic expectation because you can't prove that somebody out there hasn't done what you have. It should be assumed until proven otherwise.

I'm not a lawyer, but my personal rule(s) of thumb are: - Could you create this work by accident? (clearly no) - Could it be mistaken for another work? (hers not that I know of, his clearly)

She is right that these expectations effectively mean most portraits are not original and anyone can copy them.

[Beldin]

That actually makes some sense of this situation. Not saying it's an okay ruling, mind you. But I can understand why the court arrived at this ruling.

Namely:

- Artist: hey, that violates my copyright!

- court: okay, what was copied then?

- artist: well isn't that obvious?!

- court: if it is, you should have no trouble pointing it out...

- artist: well, the pose, the composition, the lighting.

- court: ok. Hey defendant, are you coping copyrightable pose, composition, or lighting?

- defendant: naah dudes. Here, have a look at this bunch of works with the same pose, these lot with similar composition, and these with roughly the same lighting. Why there's even an old Dutch master in that last batch! Original, my ass.

- court: hey artist's lawyer, we're not here to rule on what we think, but on the legal merits of your claim. And your claim has been thoroughly debunked. Sorry, kthxbai!

Note that the crux is in the last part: legal aspects of the claim. If the court had ruled in favour of the artist, they would have to have been able to point out how this work violates copyright, but other similar works don't. And it seems the artist's lawyer didn't supply the court with enough detail to allow them to draw a legal border between what are copies of this work and what is original.

TL;DR: Courts don't rule on the merits of a case. They rule on the merits of each side's arguments.