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  • 1.2 Photo Collage, Adaptation and Compilation
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A photo collage may, for example, comprise of photographs, drawings and paintings, or parts thereof. For a photo collage to meet the prerequisites of originality, the work must be independent and original.  In principle, however, consent is required from all the right holders for its individual parts or works.  If the new work is composed of small image details, which in themselves do not meet the prerequisite level of originality, then consent is not required. The copyright of a collage author, or adaptor, covers only their own work and does not restrict the copyright of the original work. In principle, creating a collage and adaptation from someone else's work requires consent of the author of the original work.

If the activity concerns the creation of a completely new work, to whose creation the original work has provided ideas, materials and inspiration, but which does not constitute the use of the original work in the sense intended in the Copyright Act, copyright does not depend on the original work.  The work likely requires the consent of the original author, if it easily evokes a feeling of likeness between the original and new work in the viewer/the person experiencing the work.  When creating a completely new and independent work, this new work is not identifiable with an original. In practice, the issue must be resolved on a case-by-case basis.   It is impossible to draw a clear line between free creation and dependent adaptation that requires permission.  In practice, the issue must be resolved based on singular cases.

In the Supreme Court ruling 1979 II 64, a person had painted a painting, using as their model a published photograph created by B, put it on public display and sold it. In its ruling, the Supreme Court considered it evident that the painting could not have been created independent of the photograph. Among other things, the positions and clothing of the children depicted in the work, as well as the background, demonstrated remarkable similarities. On the other hand, the photograph and painting also exhibited essential differences, particularly in the expressions of the children and in that the painting was not descriptive to such an accurate extent as the photograph was. Taking into consideration that the right of A to their photograph didn't extend to its subject and that, due to the differences in a painting and photograph's methods of production, even minute visual differences essentially affect the whole, the Supreme Court did not consider B's painting a reproduction of A's photograph, but an independent work created on the basis of the photograph. B was considered not to have infringed A's copyright by their actions.

Adaptation and/or free adaptation is also discussed, among others, in the opinions of the Copyright Council 1993:22, 1993:23, 1993:24, and 2002:7. The Copyright Council opinion 2002:7 specifically related to works of fine art and dealt in part with the same questions regarding interpretation. The case concerned the creation of a music video using the scratch technique and making use of previously created works of fine art and photography.

TN 2002:7.  In its opinion, the Copyright Council noted that the inclusion of adapted works of fine art and photography, under protection was, in accordance with Section 2 of the Copyright Act, reproduction, which falls under the exclusive right of the author and photographer and requires permission from the authors and photographers of the works in question, or the organisation representing them.

According to the Council, permission is required even when one wishes to include a work of fine art or photography in a compilation, as defined in Section 5 of the Copyright Act. If a manipulated visual work or photograph can be regarded as being the same work or photograph as the original work, the photographer or author of the original work has the right to control the work or photograph realised in manipulated form.

The Copyright Council also noted in its opinion that the inclusion of a work of fine art or photography into a music video is permitted without the consent of the author or photographer if, based on a provisional restriction in the Copyright Act such as Section 25 subsection 2, or the right to quote in Section 22, the use is secondary. In the Copyright Council's view, Section 25 subsection 2 only rarely permits works of art to be reproduced in the kind of music video mentioned in the request for comment. In accordance with Section 25 subsection 2 of the Copyright Act, permissible reproduction is, for example, when a work of fine art or a photograph is displayed in a music video, with secondary significance, behind the performers.

In connection with including of a work of fine art in a music video based on the right to quote in Section 22 of the Copyright Act, the Copyright Council noted that in the committee report 1991:33, references had been made to a more wider possibility to exercise the right to quote in the context of creating and quoting works of fine art, than the original preparatory materials for the Copyright Act refer to. The Council also noted, that in assessing the permissibility and the scope of the right to quote, one must first examine whether the object being quoted is a protected work. If the item does not meet the prerequisites of originality, or if the work's period of protection has ended, there are no restrictions based on Section 22 of the copyright Act, on its use.

A compilation work means a so-called derivative work. A compilation work has been created by combining already existing works or parts of works. We speak about compilation works once the works included in the compilation meet the prerequisite level of originality. For a compilation work to be granted copyright, the compilation is required to have compiled the works in a creative and original way. A wholly mechanical compilation does not meet the requirements of independence and originality.  The person who has created the compilation work owns the copyright to it. The copyright of the author of the compilation does not limit the copyrights of the included works' authors. Consent of the original works' authors is required to use them in a compilation work. 


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