Introduction

Ms Duan Mei Yue is a Singaporean model and artist and she recently hit the news again after she posted a video on TikTok that went viral (this video has since been taken off the platform). If you want to watch the video yourself, you can still find it on Ms Duan’s Twitter account:

In the video, Ms Duan alleges that Russian artist Angelina Poveteva created a painting (featured on the top right) that “looks exactly like a photo of [her]” (featured on the top left) without her consent. She further alleges that Ms Poveteva has displayed the said painting in an exhibition and even sold it to 2 other persons. Ms Duan contacted Ms Poveteva via Instagram to discuss this issue but was told that the painting was not based on her photograph. Left with no further non-legal recourse, Ms Duan took to social media.

In her video, Ms Duan was noticeably distraught, and said that she “was 18 in that photo. To see [her] 18-year-old self being painted naked and then paraded around like that without [her] consent shattered [her]”. She also felt violated because it made her feel like “some kind of oriental freakshow”. Having said this, Ms Duan voiced her intention to sue Ms Poveteva.

In this article, we explore the Intellectual Property (“IP”) Rights that are involved in Ms Duan’s situation and to hopefully shed some light on the issue. This is not the first time that Ms Duan has been embroiled in a legal tussle relating to IP and we wrote about the previous incident here:

Legal Issues

Unlike in Ms Duan’s previous matter, where the dispute was domestic, this current situation involves a Russian citizen and an allegedly infringing painting that was created in Russia. This means that this situation is a lot more complicated because it involves jurisdictional issues.

In order to succeed in an IP lawsuit against a Russian citizen whose allegedly infringing work was created in Russia, Ms Duan would need to prove that Ms Poveteva infringed on her copyright and/or image rights in Russia and under Russian law.

An image right, or the right of publicity, is touted as an inherent right of every human being to control the commercial use of his or her identity. While this right is featured prominently in countries like the United States, Singapore has not recognised image rights. Therefore, we will not be discussing image rights in this article (especially given that we have talked at length about them in our previous article featuring Ms Duan, link above) and will focus on copyright instead.

Notably, Russia appears to have such image rights for foreign citizens, but we are not in a position to comment on Russian law, and should Ms Duan choose to pursue this course of action, we believe that she should seek out a Russian IP lawyer.

Can Copyright Help?

With that said and done, let’s talk about Ms Duan’s potential recourse vis-a-vis copyright. From our perspective, there are several key issues:

1. Does copyright subsist in Ms Duan’s photograph?

2. If there is a copyright in the photo, is Ms Duan the owner of the same?

3. Given that intellectual property is generally territorial, is the Singaporean copyright in the photograph recognised in Russia?

4. If it is recognised, would the painting by Ms Poveteva constitute an infringement of the copyright in the photograph?

5. Should Ms Duan choose to commence a lawsuit in Russia against Ms Poveteva for copyright infringement, does Singapore being on Russia’s list of unfriendly countries affect Ms Duan’s chances?  

Is there copyright in the photograph under SG law?

Assuming that Ms Duan’s photograph was created in Singapore, copyright likely subsists in the same.

Is Ms Duan the owner of the copyright in the photograph?

Preliminarily, it is important to understand why being the owner of the copyright is crucial. Typically only the owner (or exclusive licensee) of the copyright may commence an infringement action. The reason is simple, to avoid multiple claims from non-exclusive licensees. Therefore, if Ms Duan is not the owner of the copyright in her photograph, she will not possess the requisite standing to bring an infringement action against Ms Poveteva.

Whether Ms Duan is the owner is a more complex and nuanced issue, and the answer is, unfortunately, that it depends on the circumstances surrounding the creation of the photograph.

With the recent 2021 changes to Copyright Law, the position on ownership differs if the photograph was a commissioned photograph and was taken before or after 21 November 2021.

The position in law is that the author of a work is the owner of the copyright subsisting in said work. Therefore, by default, the photographer would be the owner of the copyright in Ms Duan’s photograph.

However, if Ms Duan had commissioned the photographer to take the photograph of her, then the position on ownership might differ based on whether the photograph was taken before or after 21 November 2021. Ms Duan’s photograph would be deemed to be a commissioned photograph if:

1. Ms Duan and the photographer entered into an agreement;

2. The agreement was for the photographer to take the photograph of her; and

3. Ms Duan provided valuable consideration (e.g. the promise to pay certain sums of money) pursuant to the agreement.

If a photograph was taken before 21 November 2021, the copyright would belong to the commissioner of the photographer (in this case, Ms Duan). This would be an exception to the default rule.

The 2021 amendments to the Copyright Act abolished the exception mentioned above. This means that, regardless of whether the photograph was commissioned, the copyright owner is the photographer.  

The owner of the copyright in a commissioned photograph may be varied via the contractual terms set out in the agreement. These contractual terms would take precedence over any of the aforementioned rules.

Based on the available information available to us on the Internet, we have assumed that Ms Duan’s photograph was created in 2018, before 21 November 2021.

If the photograph was not commissioned by her, then the owner of the copyright would be the photographer. If the photograph was commissioned by her, then she would be the owner of the copyright unless there was a term in the contract providing otherwise.

That said, copyright may be subsequently sold or transferred, and only the current owner is relevant for the purposes of commencing an infringement action. Therefore, if Ms Duan is not the current owner of the copyright in her photograph but nonetheless wishes to commence an action, it is possible to acquire the copyright (whether by purchasing it or otherwise) in order to gain the necessary standing.

Is the Singaporean copyright in Ms Duan’s photograph recognised in Russia?

It is likely that the Singaporean copyright would be recognised in Russia.

Generally, IP rights are territorial in nature and can only be enforced in jurisdictions where they subsist. For example, trade mark and patent registrations in Singapore do not confer the same rights in an overseas jurisdiction, unless they are also registered in that same jurisdiction.

Copyright, however, is unique because there are international treaties that provide for copyright created in one country (e.g. Singapore) to subsist in other countries (e.g. Russia). Naturally, this only applies to countries who are signatories to these international treaties.

Under the Berne Convention, contracting parties agree to treat foreign copyright as if it were a local copyright and to protect them on the same basis. Russia and Singapore are both parties to the Berne Convention. Therefore, Russia is obliged to protect a Singaporean copyright in the same manner that it protects a Russian copyright.

To be clear, Russia need not offer a Singaporean copyright the same protections that a Singaporean copyright would be granted in Singapore, but only the same protections that a Russian copyright gets in Russia.

Is Ms Poveteva’s painting an infringement of Ms Duan’s photograph’s copyright in Russia?

Since the alleged act of infringement occurred in Russia, Russian copyright law would apply to determining if that act of selling the painting is an infringement. We are not in a position to comment about Russian law.

Does Singapore being on Russia’s list of unfriendly countries affect Ms Duan’s chances in an infringement action in Russia?

Russia recently (arguably in retaliation to the sanctions imposed by the West pursuant to their “special military operation” in Ukraine) issued a decree (on 6 March 2022) that effectively does not allow unfriendly foreign nations to enforce their patent rights in Russia. The new law loosely translates to “where an invention/utility model/industrial design is used in Russia without the consent of the patent holder that is associated with an unfriendly foreign state the compensation payable to the patent holder shall be zero percent of the actual price”. Effectively, Russia appears to have permitted the infringement of foreign patents related to unfriendly nations.

The big question now (especially for the IP industry) is whether Russia will extend their maltreatment of patent rights to other IP rights. As far as we are aware, no similar laws have been enacted for other IP rights such as trade marks, copyrights, or even image rights. However, there seems to be a legitimate cause for worry that they may do so in the not-so-distant future.

Recently, there was a peculiar ruling in the Russian Courts pertaining to the IP of the popular children’s cartoon character – Peppa Pig. Peppa Pig’s IP is owned by a company in the UK, which, like Singapore, has been declared by Russia to be an unfriendly nation. The Russian Courts refused to enforce Peppa Pig’s rights, even though there was no specific law providing that the Courts should not enforce foreign unfriendly nation trade marks.

There has yet, to our knowledge, been a case in Russia since the Ukraine war pertaining to copyrights. That said, it would not be too much of a stretch to imagine a similar unfriendly treatment of foreign copyrights by the Russian Courts.

Conclusion

We sympathise with Ms Duan’s situation and wish her all the best in whatever course of action that she chooses to pursue. Ultimately though, we believe that her case, be it relating to copyright or image rights, would be largely governed, and decided by Russian law.

This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to a practicing lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of That.Legal LLC accepts or assumes responsibility, or has any liability, to any person in respect of this article.

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