Thursday 2 February 2012

The Protection of Photographs in French Copyright Law

Recent postings surrounding the "Red Bus" decision ( have inspired me to make some brief observations about the French copyright law's approach to the issue of the protection of photographs.

Priot to 1957 such works were usually dealt with as a sub-species of artistic works such as paintings (photography being thought of as a kind of painting with light), the major obtsacle being of course that it was not obvious that the photographer played the same role as the painter.

In 1957 a new copyright law was adopted which provided for protection for photographs that were either artistic or documentary in nature. This led to substantial and somewhat confusing case-law that attempted to define the relevant criteria for both categories. Unfortunately, this approach also led to consideration of the merit of the work, which is, as a general rule in copyright law, frowned upon.

Finally, in 1985 the distinction beween the two categores was abandoned and photographs were simply said to be eligible for copyright protection provided the standard requirement of originality was satisfied, an original work being one in which the author has "stamped his personality". This approach leads to the exclusion from protection of photographs that merely reproduce reality (e.g., a picture of a painting that merely renders the painting as is).

An interesting issue that sometimes comes up is whether the photograph is an original work or merely the result of know-how on the part of the photographer (this distinction between originality and know-how is also evident in cases dealing with potential copyright protection for perfumes). In a recent ruling by the Cour de cassation (Supreme Court), protection was denied, with the Court approving the lower court's finding that the photograph was not a protected work in the following terms:

« ... the photograph at issue did not reveal, in its various constituent elements, any esthetic pursuit and that it was merely the result of know-how underlying a technical service… »

Cour de cassation, 1ère chambre civile, 20 octobre 2011 (pourvoi n° 10-21.251) :


Francis Davey said...

Thank you. That is very interesting. I am quite sure that a photograph of that kind - which appears to show some element of composition - would be protected in English law.

What that means is that, either French law is applying too high a standard (i.e. higher than it is permitted to do so by the Term Directive) or English law is admitting to its own copyright photographs that are a lower standard than the "own intellectual creation" threshold.

Anonymous said...

Good evening! I want to ask: if a person is exercising into a photo, and that photo was taken by a journalist, and a third person cut a part of that photo and use it for advertising reasons. What can be done?