Can a poster of a photo or painting be transferred to a canvas without the consent of the photographer or painter? The answer to this question was contested in proceedings in The Netherlands.
The copyright holder of the image on the poster took the position in this case that no consent had been given for the transfer to canvas and that his copyright had therefore been infringed. The party selling the poster, which also started selling the canvas transfer, did not think this consent was necessary. He believed this consent had already been granted with the consent for the sale of the poster, since the same image was being sold, only now on canvas. This party claimed that the copyright to the poster had already been exhausted and that it could not therefore be invoked again for the canvas transfer. The Appeal Court of Den Bosch (The Netherlands) found in favour of the copyright holder. The seller appealed the case in cassation at the Dutch Supreme Court. The Supreme Court then submitted the key question in the dispute to the European Court of Justice (CJEU), since copyright law has been harmonised in Europe.
In its judgment of 22 January 2015, the CJEU provided a definitive answer to this question: a canvas transfer may not be made without the permission of the holder of the right to the image. The CJEU’s arguments in reaching this decision can be summarised as follows.
A photographer or painter can give permission for his work (photograph or painting) to be copied onto posters which are then to be sold in Europe. Every copy of such a poster then incorporates the copyright-protected work of that photographer or painter.
As a rule, the copyright to a tangible object which incorporates a protected work, such as a poster, is exhausted as soon as it is marketed in Europe with the consent of the rightholder (article 4 (2) European Directive 2001/29/EC). This means that this object may be resold onwards without separate consent from the rightholder. That is the case for the aforementioned posters, therefore.
Via the canvas transfer process, a copy of the paper poster is transferred onto a canvas with the image of the poster. Thus the tangible carrier of the copyright-protected work is replaced; the poster disappears and a canvas takes its place. It was established that the canvas is more durable and gives a higher-quality image than the paper poster.
The fact that the canvas thus constitutes the (new) physical carrier of the work therefore results in the creation of a new tangible object that incorporates the copyright-protected work. In a material sense the canvas is a different object than the poster. The canvas is a new reproduction of the work. The rightholder had not given consent for the creation and marketing in Europe of this newly created tangible object.
The CJEU considered literally (paragraph 46): ‘Consequently, the consent of the copyright holder does not cover the distribution of an object incorporating his work if this object has been altered after its initial marketing in such a way that it constitutes a new reproduction of that work.’
His copyright to the canvas containing the image of the poster is therefore not exhausted, and he can demand that the making and marketing of it be prohibited and that damages be paid.
The question is thus answered on basis of the principle of exhaustion of copyright. The CJEU says that the concept of adaptation does not apply in this case because the poster and the canvas contain the image of the work. I feel this is open to question. In my opinion the CJEU fails to appreciate that as a result of the process of canvas transfer the image is really altered (the canvas is more durable and gives a higher-quality image). So this case was an outstanding opportunity to give clarity about the concept of adaptation being harmonised or not under EU laws. Contrary to article 12 of the Berne Convention the Directive 2001/29/EC does not mention the exclusive right of adaptation. However the outcome of the case would be the same under the principle of the ‘adaptation right’.
It seems as if with this judgement, the CJEU is implicitly taking a first step in recognizing European harmonisation of the ‘adaptation right’, implicitly and masked under the principle of exhaustion.