Charles-Édouard Jeanneret-Gris (
better known as Le Corbusier)
As I have noted before on this blog, photography occupies a rather unique place in copyright law inasmuch it is (or at least can be) a creative work protected by copyright as well as a vehicle for infringing the copyright of others. It is this latter aspect that was on display in a recent ruling by the Paris Court of Appeals involving furniture co-created by famed archictect Le Corbusier and images thereof available for licensing on Getty Images' database.
Upon learning of photographs on Getty Images's voluminous image database that reproduced the furniture, the plaintiffs (holders of the moral and economic rights to the works) brought suit for infringement of copyright in the pieces of furniture.
After a detailed analysis of each photograph, the Court concluded that in certain pictures, the original furniture was indeed reproduced in a non-fortuitous manner (clearly identifiable in particular in their original aspects, central position in the foreground). This is an application of well established principles in French law under which reproduction of protected subject-matter in photography escapes liability provided it is incidental, fortuitous or accessory to some principal object. The Cour de cassation has held that this "exemption" is a limitation not an exception and survived the French transposition of the InfoSoc Directive's (closed) list of possible exceptions (see here).
The 2006 statute that effected the transposition did include an exception for the press with regard to the reproduction of certain works (e.g. buildings, statues) for news purposes (Section L.122-5, par.9 of the Intellectual Property Code - see here) but this was not applicable in this case.
As regards the issue of damages, the Court was unmoved by Getty's argument that there was no evidence that licensing of the pictures at issue had any adverse effect on sales of the actual furniture that was reproduced in the pictures. Applying principles in effect in france since the 2007 transposition of the IPR Enforcement Directive, the Court looked to Getty's profits and awarded the sum of €1,800 per infringing photograph, in light of inter alia the quantity of images in the database and their exposure thereon (it pointed out that Getty itself claimed that its image database contained over 80,000,000 images) as well as Getty's bad faith (it had continued to offer the images for licensing despite an initial judgment in the plaintiffs' favour).
Getty's argument to the effect that there was no violation of Le Corbusier's right of attribution (paternity right) because his fame ensured that the public would be able to identify him despite his name not being cited was rejected out of hand by the Court.
The decision is Fondation Le Corbusier v. Getty Images (Paris Court of Appeals, Pole 5, 2nd chamber June 13, 2014)