Forgive my French: copyright ‘a la carte’ for photographic works

Mathilde Pavis
(is her picture sufficiently
original though?)

What is the approach to originality in French courts? 1709 Blog friend and PhD researcher, Mathilde Pavis (University of Exeter), explains.

Here's what Mathilde writes:

With the EU debating on the freedom of panorama [here, here and here] and the Paris Tribunal de Grande Instance denying copyright protection to Hendrix’s portrait [here and here], photographic works prove a hot topic of discussion in 2015. The latter decision in particular gives us an opportunity to assess the impact of the Infopaq/Painer jurisprudence on national disputes.  

In Painer, the Court of Justice of the European Union (CJEU) applied Infopaq interpretation of the originality requirement, i.e. that a work must be the author’s own intellectual creation and bear his/her own intellectual input, to photographic works. 

Five years later, Gered Mankowitz brought a claim before the Paris Court of First Instance which was very similar to the one that Ms Painer had brought in Austria, possibly hoping to receive the same treatment as she did. Against all odds, his motion was however denied. According to the French bench, his portrait of Jimi Hendrix was not sufficiently original. In particular, the photographer failed to demonstrate that he had put the necessary level of personal touch in portraying the famous musician. 

Natascha Kampusch
by Eva-Marie Painer

This interpretation of the law leads us to the paradoxical situation whereby a traditional head to shoulder portrait with a blue sky background is considered more original (for copyright purposes) than the less conventional photograph of a musician enjoying a cigarette in front of the camera.

This prompts the question whether the French court took note of the Painer decision following the Infopaq jurisprudence, or not.  Have French national judges realised that CJEU jurisprudence was not a mere confirmation of French copyright law but an attempt to harmonise the various national tests actoss the Union? Yes … and no. 

Reading the decision, the Paris bench did directly refer to Painer. Yet, comparing the outcomes of the cases to the portraits, we cannot help but be surprised by their divergence.  

So what happened?  Very simply, it seems as though France has not changed its position towards the originality requirement following the Painer case. The courts of the hexagon still enforce a slightly higher threshold of originality in general, and particularly so in the context of photographic works. 

Jimi Hendrix by Gered Mankowitz

They may now borrow the wording imposed by the CJEU but the essence of the test they apply is invariably of a higher standard than that of their EU superior. 

The Hendrix case is consistent with a series of decisions which distinguished between engaged creative photographers (i.e. worthy of copyright protection) and passive ones who are described as mere ‘button clickers’ (i.e. undeserving of copyright protection). A quick review of recent decisions on this issue may be useful to place this 2015 Hendrix decision in context and highlight the logic behind its reasoning.  

Paparazzi

Not an original photograph,
according to Paris Court of Appeal

In 2007, the Paris Court of Appeal (Paris, 4ème ch, 5 décembre 2007, n° 06/15937, SIPA Press : D. 2008 jurispr. P. 461 note Bruguière ; RTDCom. 2008 p. 300 obs. Pollaud-Dullian) rejected Sun’s copyright claim over pictures of William and Kate’s ‘love gateway’ in the French Alps. The court refused to see in the work of a paparazzo anything eligible for copyright protection. The fact that a paparazzo hides and waits for celebrities to show up to then take pictures of them does not make those photographs the expression of his/her own intellectual creation, or a display of his/her personality. Because this type of photographers holds a passive role in the composition of their pictures  which remain subject to chance and rather banal pictures of socialites’ everyday life, the threshold of originality is not met.

Sport photographs

The same 'passivity' was argued against the copyright claim of a photographer who sought to obtain protection over football pictures. In 2012, the Paris Court of Appeal found no originality in neither action nor team shots (Paris, 1ere ch., pole5, 14 novembre 2012, SARL Acces Photo c/ Tours FC, n° 11/03286: inédit). Again, in the eyes of the court there can be no originality in standing in a stadium and taking hundreds of pictures of game actions which are by no means controlled by the photographer.

This is déjà vu and therefore 

not protectable 

according to Paris Court of Appeal

However, controlling the action being photographed is not the only hurdle photographers must pass to obtain legal protection for their work. In the same decision, the court also rejected the photographer’s claim over team pictures for the making of which he had selected the background (the football pitch) and arranged the position of the players. In dismissing his claim, the court referred to the fact that such shots are highly banal and it requires no creativity to organise players by height in front of a background composed of grass and blue sky. 

The Court also rejected post-shooting edits as elements of intellectual input because such edits are now facilitated by computer programs. 

The message is clear: Photoshop-ing is not original and does not add any originality to a work.

One cannot help but wonder whether Natasha Kampusch’s portrait and the Tours Football Club team shots had not required the exact same amount of skills and intellectual input ... Yet again, similar facts received diametrically opposed treatment in French courts.

   

Calling the shots

Controlling both the set of the photograph and the position/expression of the subject portrayed seem thus crucial to obtain copyright protection over photographic works in France. 

In a 2008 decision, the Paris Court of Appeal drew a very fine line between protectable and non-protectable photographs taken during the same shooting session (Paris, 20 février 2008, n° 06/22330, SARL Les archives to 7eme Art c/ Stéphane Mirkine : Propr, Intell. 2008, p. 319 note Lucas (photographie de plateau)). 

Brigitte Bardot on the set of
... And God Created Woman

In that case, Leo M had been invited to take pictures on the set of the film ... And God Created Woman during its production. A series of pictures were taken but not all of them were deemed to bear the imprint of the author’s personality (i.e. intellectual input) despite the fact that all photographs shared the same lighting, angles, set and model (Brigitte Bardot). 

Between photographs deemed original and those which did not, only one element varied. In some pictures, the photographer let Bardot pose according to the role she was playing in the film whilst in others he directed her. Only the pictures where the actress had been directed by the photographer could be eligible for copyright protection. All the other shots were otherwise borrowing the atmosphere, mood and general feel of the film created by its director so much so that the photographer had no real input in the pictures.

Objects

When the matter photographed is inert, the threshold of originality appears slightly lower and more in line with the jurisprudence of other jurisdictions such as the United Kingdom. Choosing angles and lighting to photograph paintings (CA Dijon, 7 mai 1996 ; D. 1998, somm. 189, obs. Colombet), antique objects (Antiquesportfolio.com plc v Rodney Fitch & Co [2001] E.C.D.R. 5; [2001] E.B.L.R. 20; [2001] F.S.R. 23; [2000] Masons C.L.R. 51; (2000) 23(11) I.P.D. 23092; (2000) 97(30) L.S.G. 41; Times, July 21, 2000) or planes (Paris, 17 décembre 2008, n° 07/15882 (infringes the copyright vested in the photographs of planes the newspaper which uses it without the consent of the photographer)) is enough to satisfy the originality requirement.

Conclusion

The Hendrix decision is in line with a line of cases which has set a slightly higher threshold of originality for photographic works. 

This may be a vestige of the Law of Mach 1957 which  included those works as protectable ‘works of the mind’ subject to the condition that they evidenced an artistic or documentary nature. 

This additional condition of ‘artistic or documentary nature’ was dropped by the 1985 reform under the pressure of harmonisation driven by the EU which culminated in the 1993 Term Directive. 

Yet it seems as though the French judicature kept alive remnants of the 1957 statute despite the CJEU Infopaq and Painer rulings which de facto furthered the Directive’s harmonising agenda. 

Disparity between jurisdictions and inconsistency between cases are unlikely to smooth out, for at least two reasons. First, the assessment of originality in each case is highly fact-sensitive making outcomes of disputes rather volatile. Second, the finding of authorship is a point of fact which considerably limits its opportunity of appeal and augments judges’ discretion in confirming or dismissing copyright claims. All those factors put together contributes to drawing the profile of a French copyright as a legal framework a la carte designed by judges on an ad hoc basis and open to the idea of tailoring standards as the law and artistic practices evolve.