Saturday 30 May 2015

Paris Court Denies Copyright Protection to Jimi Hendrix Photograph

Gered Mankowitz is a British photographer who photographed many famous musicians such as Mick Jagger and Annie Lennox. He took several photographs of Jimi Hendrix in 1967. One of these photographs represents the musician, wearing a military jacket, holding a cigarette and puffing a cloud of smoke while looking at the photographer. An original print recently sold at auction for £2,750.

This photograph was used without authorization in 2013 for an advertising campaign by Egotrade, a French electronic cigarette company. The ad showed Jimi Hendrix holding an electronic cigarette and the “Egotabaco” brand was printed on the ad. 

Gered Mankowitz and Bowstir Ltd, the company to which Mr. Mankowitz has assigned his patrimonial rights to the photography, filed suit in France. Bowstir claimed copyright infringement and Mr. Mankowitz claimed droit moral infringement. On May 21, the Paris Tribunal de Grande Instance (TGI), a court of first instance, ruled that the Jimi Hendrix photograph could not be protected by French intellectual property law, as it was not original.
Ceci n'est pas une oeuvre originale pour le TGI
French intellectual property law does not provide a definition of “originality.” Article L. 111-1 of the French Intellectual Property Code provides that “[t]he author of a work of the mind shall enjoy in that work, by the mere fact of its creation, an exclusive intangible property right enforceable against all. This right shall include attributes of intellectual and moral attributes as well as patrimonial attributes.” Article L. 112-1 specifies that the law “protects the rights of authors in all works of the mind, whatever their kind, form of expression, merit or purpose.”

The TGI cited the European Court of Justice (ECJ) Eva Maria Painer. v. Standard Verlags case, where the Court had discussed the originality of a picture taken by a school photographer. For the ECJ, which the TGI cited verbatim,

“[a]s stated in recital 17 in the preamble to Directive 93/98, an intellectual creation is an author’s own if it reflects the author’s personality. That is the case if the author was able to express his creative abilities in the production of the work by making free and creative choices. … As regards a portrait photograph, the photographer can make free and creative choices in several ways and at various points in its production. In the preparation phase, the photographer can choose the background, the subject’s pose and the lightening. When taking a portrait phoograph, he can choose the framing, the angle of view and the atmosphere created. Finally, when selecting the snapshot, the photographer may choose from a variety of developing techniques the ones he wishes to adopt or, where appropriate, use computer software. By making those various choices, the author of a portrait photograph can stamp the work created with his ‘personal touch’” (ECJ 88-92).

Indeed, Recital 17 of Directive 93/98/EEC states that a photograph is original “if it is the author’s own intellectual creation reflecting his personality, no other criteria such as merit or purpose being taken into account.” Article 6 of the same Directive states that photographs are original if “they are the author’s own intellectual creation.” This directive was repealed by Directive 2006/116/EC, of which Recital 16 reprises the same words than Recital 17.

The TGI then examined the Jimi Hendrix photograph. Gered Mankowitz had explained to the court that
this photograph of Jimi Hendrix, as extraordinary as it is rare, succeeds in capturing a fleeting moment of time, the striking contrast between the lightness of the artist’s smile and the curl of smoke and the darkness and geometric rigor of the rest of the image, created particularly by the lines and angles of the torso and arms. The capture of this unique moment and its enhancement by light, contrasts and the narrow framing of the photograph on the torso and head of Jimi Hendrix reveal the ambivalence and contradictions of this music legend and make the photograph a fascinating work of great beauty which bears the stamp and talent of its author.”

This argument did not convince the TGI as Mr. Mankowitz,
as doing so, satisfied himself by highlighting the aesthetic characteristics of the photography which are distinct from its originality which is indifferent to the merit of the work, and does not explain who the author of the choices made regarding the pose of the subject, his costume and his general attitude. Also, nothing [in this argument] allows the judge and the defendants to understand if these elements, which are essential criteria in assessing the original features claimed, that is, the framing, the use of black and white, the light decor meant to highlight the subject, and the lighting being themselves typical  fora portrait photography showing the subject facing, with his waist forward, are the fruit of the reflection of the author of the photograph or the subject, and if the work bears the imprint of the personality of Mr. Mankowitz or of Jimi Hendrix.”

Since the judges are therefore not able to appreciate whether this photograph is indeed original, the TGI ruled hat the photography lacked the originality necessary for its protection by French law, and that “the failure of the description of the characteristic elements of the alleged originality also constitutes a violation of the principle of defense rights.” The TGI thus concluded that Mr. Mankowitz had no intellectual property rights over the photograph.

By doing so, the TGI did not deny that this particular photography of Jimi Hendrix is not original. Rather, the court was not convinced that originality of the work was the result of choices made by Mr. Mankowitz. This case is less about what is an original work than how to prove that a work is indeed original.

As such, this ruling should give pause to French IP practitioners defending the rights of a photographer, as they must now prove why the author chose the different elements of a photograph and how these choices reflect his personality in such a way that the work is original. However, the case will be appealed, and so the debate on what is an original work, and how to prove, it is still ongoing in France.


Anonymous said...

This is very interesting indeed.......and blurres the lines between what is deemed 'original'. So.....the photographer catches 'a moment in time' of a given subject......but because he has not manipulated the surrounding ambience and lighting of the image/ is not deemed as original? Is not the fact that the piece of equipment (camera) was owned and used by Mr Mankowicz count for anything in capturing the image?
In that is one to measure the deemed 'originality' of the work of the likes of Don McCullin?


Peter Groves said...

A surprising outcome, especially if considered alongside the Red Bus case. To my eye, the image is so striking that its originality is plain to see, so I must think again. I read the TGI's comments as saying that there was insufficient evidence of originality, not that the work was inherently lacking in originality (as I think Marie-Andrée says in the penultimate paragraph). The quoted words of Mr Mankovitz, although they read a little like advertising blurb, were probably thought by his lawyer to be sufficient: the case tells us not that photographs (especially, I suppose, reportage) will rarely be considered original but that it is necessary to go further in deconstructing and analysing the photograph, to show where the originality lies. My initial thought was to assume originality: the burden of proof is the other way round. Perhaps, as the standard of originality becomes more rigorous as I hope it will, copyright owners will have to do more to satisfy the courts that their work satisfies the requirement.

Marie-Andree Weiss said...

Thank you both for your comments.

Maybe this case has somehow been chosen as a test case to stem a copyright reform in France.

French IP law attaches great importance to the relationship between the author and its work, which must be a work of the mind, a oeuvre de l'esprit.

While it was obvious that this photograph is very original, and should be protected by French IP law, it was less obvious that the work stemmed from Mr. Mankovitz's "esprit." I am sure it did, but it seems that the court wanted to have a clear outline of the creative process, which is a new requirement.

Anonymous asked about camera ownership as proof, and that would not have helped Mr. Mankovitz, quite the contrary probably. What counts is : is he really an "artiste"?

Anonymous said...

If not for the interaction between Mankovitz & his subject, this image would not exist. It is not a recordation of a subject like a traffic camera, it is the influence of the artist on the subject that created this unique image.

Unknown said...

To add to the question asked regarding the work of Don McCullin, surely by the definition they have interpreted the entire catalogue of pictures by Henri Cartier-Bresson, his contemporaries, and followers, will now be free for anyone to use as they see fit?

It has long been accepted that the skill of the photographer in choosing the right camera settings, framing a shot 'just so', and choosing the moment to press the shutter, has amounted to a unique creative process granting the photographer the right to copyright protection of any work produced.

This ruling would drive a coach and horses through this system and mean that every single instance would have to be examined minutely, deciding who put in the greatest degree of artistic originality i.e. did the subject do EXACTLY what was asked of them, did the lighting rigger do EXACTLY what was asked of them, did the makeup artist do EXACTLY what was asked of them, etc.?

This is a total nonsense one hopes will be overturned in due course.

spacecadet said...

This is a bolt from the blue and utterly perverse. The photographer now has to argue his case for his own property. I wonder how it can even be compatible with Berne.
This one will go all the way.

TomRos said...

What is the status of this case after a year?

I just used this photo (heavily modified) in a collage with one of my original photograph.
I credited Mankowitz, as the photographer of the B&W original in my description.
My photograph is not for sale, nor will be used in advertising. It is used to commemorate Hendrix death on 18. September, 1970. It will be soon uploaded on the world wide web.