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. 

Painer: pain for the press?

On 1 December the Court of Justice delivered its 150-paragraph ruling in Case C-145/10 Eva-Maria Painer v Standard VerlagsGmbH, Axel Springer AG, Süddeutsche Zeitung GmbH, SPIEGEL-Verlag Rudolf AUGSTEIN GmbH & Co KG and Verlag M. DuMont Schauberg Expedition der Kölnischen Zeitung GmbH & Co KG (Opinion of AG Trstenjak noted by the IPKat back in April here).

As our readers may remember, this case was a reference for a preliminary ruling from the Handelsgericht Wien (Austria), in the context of proceedings for copyright infringement brought about by photographer Eva-Marie Painer against some Austrian and German newspaper and magazine publishers.

Ms Painer is a freelance photographer and took several photographs of Natascha Kampusch  designing the background, deciding the position and facial expression, and producing and developing them. Ms Painer sold the photographs which she produced, but without conferring on third parties any rights over them and without consenting to their publication. After Natascha Kampusch was abducted in 1998, the competent security authorities launched a search appeal in which the photographs by Ms Painer were used. Following Natascha’s escape from her abductor in 2006 and prior to her first public appearance, the defendants in the main proceedings published such photographs in newspapers, magazines and websites without, however, indicating the name of the photographer, or indicating a name other than Ms Painer’s as the photographer. They claimed that they had received the contested photographs from a news agency without Ms Painer’s name being mentioned or with a name other than Ms Painer’s name being indicated as the photographer’s. Several of those publications also featured a portrait, created by computer from the contested photographs, which, since there was no recent photograph of the girl until her first public appearance, was a photo-fit of Natascha.

In 2007, Ms Painer sought an order that the defendants in the main proceedings immediately cease the reproduction and/or distribution, without her consent and without indicating her as author, of the contested photographs and the contested photo-fit. The Oberster Gerichtshof held that the defendants in the main proceedings did not need Ms Painer’s consent to publish the contested photo-fit. Despite being the contested photograph which had been used as a template for the contested photo-fit a photographic work protected by copyright, the production and publication of the contested photo-fit was not an adaptation for which the consent of Ms Painer was needed. Anyway, the court decided to stay the proceedings and revert to the Court of Justice, seeking clarification of four questions:

(1) Is Article 6(1) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [aka Brussels I] to be interpreted as meaning that its application and therefore joint legal proceedings are not precluded where actions brought against several defendants for copyright infringements identical in substance are based on differing national legal grounds the essential elements of which are nevertheless identical in substance – such as applies to all European States in proceedings for a prohibitory injunction, not based on fault, in claims for reasonable remuneration for copyright infringements and in claims in damages for unlawful exploitation?

The Court held that Article 6(1) must be interpreted as not precluding its application solely because actions against several defendants for substantially identical copyright infringements are brought on national legal grounds which vary according to the Member States concerned. It is for the referring court to assess, in the light of all the elements of the case, whether there is a risk of irreconcilable judgments if those actions were determined separately.

(4) [which the Court deemed it appropriate to address after Question 1] Are Article 1(1) of Directive 2001/29 in conjunction with Article 5(5) thereof and Article 12 of the Berne Convention, particularly in the light of Article 1 of the First Additional Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms and Article 17 of the Charter of Fundamental Rights of the European Union, to be interpreted as meaning that photographic works and/or photographs, particularly portrait photos, are afforded “weaker” copyright protection or no copyright protection at all against adaptations because, in view of their “realistic image”, the degree of formative freedom is too minor?

By referring to the ruling in Infopaq (noted in this Blog here), the Court first recalled that copyright is liable to apply only in relation to a subject-matter, such as a photograph, which is original in the sense that it is its author’s own intellectual creation, i.e. 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 (see, a contrario, Joined Cases C‑403/08 and C‑429/08 Football Association Premier League and Others [2011] ECR I‑0000, paragraph 98).

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 lighting. When taking a portrait photograph, 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 one 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’. Consequently, as regards a portrait photograph, the freedom available to the author to exercise his creative abilities will not necessarily be minor or even non-existent.

In view of the foregoing, a portrait photograph can be protected by copyright if – which it is for the national court to determine in each case – such photograph is an intellectual creation of the author reflecting his personality and expressing his free and creative choices in the production of that photograph.

Coming to the question whether such protection is inferior to that enjoyed by other works, particularly photographic works, the Court observed that nothing in Directive 2001/29 or in any other directive applicable in this field supports the view that the extent of such protection should depend on possible differences in the degree of creative freedom in the production of various categories of works. Therefore, as regards a portrait photograph, the protection conferred by Article 2(a) of Directive 2001/29 cannot be inferior to that enjoyed by other works, including other photographic works.

(3)(a) [which the Court decided to address next] Is Article 5(3)(e) of Directive 2001/29, in the light of Article 5(5) thereof, to be interpreted as meaning that in the interests of criminal justice in the context of public security its application requires a specific, current and express appeal for publication of the image on the part of the security authorities, i.e. that publication of the image must be officially ordered for search purposes, or otherwise an offence is committed?

(b)If the answer to question 3a should be in the negative: are the media permitted to rely on Article 5(3)(e) of [Directive 2001/29] even if, without such a search request being made by the authorities, they should decide, of their own volition, whether images should be published “in the interests of public security”?

(c)If the answer to question 3b should be in the affirmative: is it then sufficient for the media to assert after the event that publication of an image served to trace a person or is it always necessary for there to be a specific appeal to readers to assist in a search in the investigation of an offence, which must be directly linked to the publication of the photograph?

As a preliminary point, the Court observed that the provisions of Directive 2001/29 do not expressly address the circumstances in which the interests of public security can be invoked with a view to the use of a protected work, meaning that, though the Member States which decide to enact such an exception enjoy a broad discretion in that respect, such discretion must comply with the need for legal certainty for authors with regard to the protection of their works and, in any case, is limited by Article 5(5) of the Directive. The Court held that the media, such as, in this case, newspaper publishers, cannot be allowed to confer on themselves the protection of public security. Only States, whose competent authorities are provided with appropriate means and coordinated structures, can be regarded as appropriate and responsible for the fulfillment of that objective of general interest by appropriate measures including, for example, assistance with a search appeal. Such a publisher cannot, therefore, of its own volition, use a work protected by copyright by invoking an objective of public security. However, the Court added that it is conceivable that a newspaper publisher might, in specific cases, contribute to the fulfilment of such an objective by publishing a photograph of a person for whom a search has been launched. In any case, it should be required that such initiative is taken, first, within the framework of a decision or action taken by the competent national authorities to ensure public security and, second, by agreement and in coordination with those authorities, in order to avoid the risk of interfering with the measures taken by them, without, however, a specific, current and express appeal, on the part of the security authorities, for publication of a photograph for the purposes of an investigation being necessary.

(2)(a) Is Article 5(3)(d) of Directive 2001/29, in the light of Article 5(5) of that directive, to be interpreted as meaning that its application is not precluded where a press report quoting a work or other protected matter is not a literary work protected by copyright?

(b) Is Article 5(3)(d), in the light of Article 5(5) thereof, to be interpreted as meaning that its application is not precluded where the name of the author or performer is not attached to the work or other protected matter quoted?

The Court observed – inter alia - that Article 5(3)(d) of Directive 2001/29 sets out a series of conditions for its application which do not include a requirement that a work or other protected subject-matter must be quoted as part of a literary work protected by copyright. Therefore the proviso must be interpreted as not precluding its application where a press report quoting a work or other protected subject-matter is not a literary work protected by copyright. As a consequence, it must be interpreted as meaning that its application is subject to the obligation to indicate the source, including the name of the author or performer, of the work or other protected subject-matter quoted. However if, in applying Article 5(3)(e) of Directive 2001/29, that name was not indicated, that obligation must be regarded as having been fulfilled if the source alone is indicated.

The decision of the Court may lead the readers of this Blog to engage in reflections and comments upon the well-known tendency – at the level of EU judiciary – to tackle the concept of originality as a means to define the scope of protection. This case may also raise observations as to the related issue of copyright limitations …