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| Nice picture! |
The case involved a dispute between a photographer and her agency. At issue was the ownership of the digital files derived from the original film used to create the photographic works.
During the course of her collaboration with the agency from 1971 to 2009, the photographer handed over the film containing the pictures to the agency (which was in charge of the management and exploitation thereof), which then proceeded to digitize them (at its expense) After terminating the relationship, she sought restitution of the totality of the pictures deposited with the agency.
The agency, in turn, noticed that the photographer had posted on her facebook account certain images derived from the digital files and brought legal proceedings for parasitical conduct.
This set the stage for the court to distinguish (as per Section L.111-3 of the Intellectual Property Code) between the photographic works (whose rights vested in the photographer) and the digital files of the photographs which was the medium on which the work existed (which belonged to the agency). (The court did note that despite the agency's ownership of the digital files, they could not be exploited without the photographer's consent.)
Based on the foregoing distincion, the court found that the photographer's use of the digital files on her Facebook page without the agency's consent was unlawful and therefore awarded the agency €1,000 by way of damages.
While the distinction between "intangible work" and "tangible medium" in which the work subsists is nothing new (and is indeed a feature of all copyright systems), this decision is nonetheless significant because it holds that the "tangible medium" in this case were the digital files. In other words, unlike a more traditional scenario where the medium is paper, a CD, a DVD, etc., here the court characterized the digitized versions of the photographic works as the medium. This is especially interesting in light of recent debates on the right of distribution and whether such right is exhaused in the case of digital goods.
Link to the decision here
