Lawyers say 'not easy' for S'pore model to sue Russian artist accused of using her likeness on nude paintings

SINGAPORE — For almost a month, Singapore-based model Duan Meiyue has been cataloguing evidence to demonstrate that a Russian artist has allegedly made two paintings based on a photo of her, without her consent.

Describing the experience as “dehumanising” and “traumatising”, she said it has been made worse by the fact that the photo of her face, taken when she was 18, was painted on a nude body. The paintings were exhibited and sold for a five-figure price tag each, she said.

Unfortunately this was not the first such experience for Ms Duan, who last year was embroiled in a similar situation with a local artist. She said that case has not been fully resolved.

“I wake up crying every morning when I think about this. I have thoughts of deleting everything and disappearing,” the 22-year-old model told TODAY.

While she is contemplating taking legal action, intellectual property (IP) experts who spoke to TODAY said that it would be an uphill task given copyright law.

This is further complicated by the fact that the artist whom Ms Duan may want to take action against is based in Russia, which has placed Singapore in a list of “unfriendly” countries after the Republic imposed sanctions against it in the wake of its invasion of Ukraine.

ARTWORK EXHIBITED, SOLD, TURNED INTO NFT

Ms Duan was alerted to the paintings resembling her likeness when she was tagged in the comments section of separate social media posts by Russian artist Angelina Poveteva and a Moscow-based art platform, Artlife Academy.

“The TikTok (video) of that exhibition where so many of these people took photos with the naked likeness of my 18-year-old-self is traumatising,” she said.

Ms Duan reached out to Ms Poveteva to stop exhibiting the paintings and not commercialise them.

The model told TODAY that Ms Poveteva had agreed to take down the painting on her website, “but she had lied to me about not having sold the painting and kept me in the dark about her turning the paintings into NFTs (non-fungible tokens)”.

NFTs are digital versions of real-world objects including artworks.

Screen recordings of their exchanges uploaded on Ms Duan’s social media accounts show Ms Poveteva repeatedly denying Ms Duan’s allegations, with the artist at one point sending Ms Duan the photo of another model on whom she said the paintings were based. 

For her part, Ms Duan said she had evidence that images of the other model sent by Ms Poveteva were photoshopped to look like her. 

Ms Duan’s latest video on the matter featured a woman claiming to be Ms Poveteva’s former manager, who had stepped forward to support Ms Duan’s case and providing what appears to be behind-the-scenes footage showing how the artist had referred to Ms Duan’s photo when painting.

In reply to TODAY's queries, Artlife Academy explained that Ms Poveteva’s artwork was displayed only as part of a festival it had organised in 2021 after she won a contest.

The organisation said that it opposes “the negativity and bullying” towards both Ms Duan and Ms Poveteva and calls for the issue to be resolved legally, adding that it had already "taken all the measures to resolve and clarify the situation within our capability".

“We hope that Angelina and Duan Meiyue will be able to come to a peaceful solution to the conflict,” it added.

TODAY was unable to reach Ms Poveteva for comment.

DOES DUAN MEIYUE HAVE THE RIGHT TO SUE?

IP experts told TODAY that the party who owns the copyright over the original photo would be the one with standing to take legal action against the Russian artist.

Associate Professor Hannah Lim Yee-Fen from Nanyang Technological University said that based on the November 2021 changes in the Copyright Act on commissioned works, it is the photographer and not the model who owns the copyright over a photo by default.

The Nanyang Business School data protection and privacy law expert added that the ownership can be transferred via a contract.

Mr Mark Teng, executive director at legal firm That.Legal LLC, however, said that the amendments to the Act may not apply to this case as the photograph was taken before November 2021.

“If the photograph was commissioned by her (Ms Duan), then she would be the owner of the copyright unless there was a term in the contract providing otherwise,” he said.

IS A PHOTOGRAPH PROTECTED UNDER PDPA?

Both Assoc Prof Lim and Mr Teng said that a person’s likeness is not considered intellectual property per se in Singapore.

“There are, however, limited scenarios under the law of passing off (where goodwill is now recognised as an intellectual property right) where a person’s likeness (usually famous people who commercialise their image) may be indirectly protected,” said Mr Teng.

However, such rights would be territorial and enforceable only in Singapore, he added.

Assoc Prof Lim said that Ms Duan may be able to take legal action under the Personal Data Protection Act (PDPA), provided that the photo was not made publicly available such as by uploading it on social media.

“If the photograph was within her private portfolio that she was showing the modelling agencies, that’s a different story,” said Assoc Prof Lim.

Notwithstanding those considerations, Mr Teng added that PDPA is a local law and does not apply to acts committed overseas.

Mr Steven Lam, founder and director of Templars Law, said that there may be a case of passing off that may amount to defamation.

Agreeing, Assoc Prof Lim said: “Given that the artist has painted a topless body with a face that looks like (Ms) Duan, she might be able to pursue a case in defamation in some jurisdictions because the nudity may lower people’s estimation of her if they thought she posed nude for the artist."

“However, defamation laws do vary greatly from jurisdiction to jurisdiction,” she added.

'NOT EASY': HIGH THRESHOLD OF COPYRIGHT CASES

Mr Lam pointed out that factors, such as whether the artwork depicts a different pose or only a certain portion from the photograph, need to be scrutinised to establish whether there are substantial similarities amounting to a copyright infringement.

And even if a painting bears a resemblance to a photograph, experts point to the difficulty in proving a breach in copyright, as the copyright owner must also prove that copying had indeed happened.

“And all you really need is for the person painting to say, ‘Well, I was sitting in class and I was not looking at anything … My teacher’s my witness...’. So really, it's not easy,” she said.

Assoc Prof Lim gave a hypothetical situation where an artist and a photographer independently capture a scene from the National Day Parade from the same angle.

If the artist can prove that he had drawn his painting from memory without looking at the photograph, “there’s no breach of copyright because there was no copying”, she said.

THE 'UNFRIENDLY' COUNTRY FACTOR

While Ms Poveteva is based in Russia, lawyers Mr Teng and Mr Lam highlighted that there are international treaties that provide for copyright created in one country to remain in force in other countries which are signatories to the same treaties.

Under the Berne Convention, to which both Russia and Singapore are signatories, contracting parties agree to treat foreign copyright as if it were a local copyright and to protect them on the same basis. 

“Therefore Russia should have to protect a Singaporean copyright in the same manner that it protects Russian copyright,” said Mr Teng.

However, Singapore’s status as an “unfriendly” country in Russia’s eyes may form a hindrance, said lawyers.

Mr Teng pointed to a ruling in the Russian Courts related to the IP of the popular children’s cartoon character, Peppa Pig, which is owned by a company in Britain — also on Russia’s list of unfriendly nations.

“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,” said Mr Teng.

"It would not be too much of a stretch to imagine a similar unfriendly treatment of foreign copyrights by the Russian Courts,” he added.

Mr Lam said that if Ms Poveteva has assets in Singapore or other countries outside Russia, Ms Duan may consider suing her here and any possible damages awarded can be executed against those assets.

On the other hand, if the artist’s assets are only within Russia, then the ball would then lie in Russia's court to enforce any ruling.

“You can sue her till Christmas comes, Russian courts can tell you: ‘Go fly a kite, I’m not going to help you’. That’s all,” he said.