Famed German photographer and filmmaker, Peter Lindbergh, shot Julianne Moore in 2008 for a Harper's Bazaar piece entitled, Portrait of a Lady. The result, a series of recreations of famous works of art, including: Seated Woman With Bent Knee by Egon Schiele, Woman With a Fan by Amedeo Modigliani, Adele Bloch Bauer I by Gustav Klimt, and Madame X by John Singer Sargent. The most strikingly similar image, however is, artist John Currin's, The Cripple, dated 1997. For the legal buffs among us, you may be thinking, derivative work?
For those of you who aren't familiar with derivative works, they are works of art based on or derived from one or more preexisting works. This type of work is often debated for a couple of reasons: (1) it is potentially copyrightable subject matter, and (2) you can only legally produce a derivative work of another's copyrighted work (the underlying work) with authorization from the copyright holder. As such, unwarranted use of another's copyright to produce a derivative work amounts to copyright infringement as it is the copyright owner's exclusive right to prepare derivative works based on his copyrighted work. As with other works subject to copyright law, a derivative work is copyrightable only if it amounts to an original work of authorship. (If the subsequent work is devoid of originality, it is simply a copy). Courts have largely held that any work in which the editorial revisions, annotations, elaborations, or other modifications represent, as a whole, an original work of authorship is considered a copyrightable derivative work. So, would Lindbergh's photo amount to a derivative work?
In some jurisdictions (those with a lower standard of originality), the answer would be a definite, yes! In courts with a higher standard for originality, the result would likely also be yes. A mere photograph of Currin's painting may be deemed to be infringement but this interpretation of the painting by Lindbergh, which is fixed via photograph, is most likely a derivative work, even in jurisdictions with higher standards of originality. Thus, as long as Harper's Bazaar got the authorization from Currin, this is an independentlycopyrightable derivative work.