Court Finds Luc Tuymans Infringed Photographer’s Intellectual Property
A few stories floating around the internet report that a Belgian court has found Luc Tuymans liable for “plagiarizing” photographer Katrijn Van Giel’s photograph. We believe this to mean that Tuymans was found liable of infringing Van Giel’s intellectual property rights, most likely copyright. Keep in mind that plagiarism, at least under US law, is not recognized as an actionable legal claim. Rather, plagiarism is an ethical “violation” and not a legal wrong; that would be copyright infringement. And, we can have copyright infringement that is not plagiarism, and plagiarism that is not copyright infringement.
For now, Tuymans did admit to using Van Giel’s photograph of a politician in order to create a painting of that same politician. His defense? Parody. Why not? After all that seems to be the most popular defense raised by appropriationists against intellectual property infringement claims.
If this was in a New York court, and under the current Second Circuit ruling of Cariou v. Prince, we highly doubt that Tuymans’ appropriation would constitute fair use. But this case is being tried in Belgium, so who knows. Anyhow, it seems like the tide is slowly turning toward the owners-artists of the underlying work. Let’s hope so.
Tuymans plans to appeal.