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Use of third party photographs without permission

Vanessa Bouchara

Updated January 24, 2021
Use of third party photographs without permission

The photographs are considered, according to article L.112-2 9° of the Intellectual Property Code as being works of the mind.

L Photographers can therefore benefit from protection for their works under the Copyright according to articles L.111-1 and following of the Intellectual Property Code, on condition that they can justify the originality of these photographs. Jurisprudence assesses the originality of photographs by taking into account many criteria such as, for example, the angles of view, the framing, the play of lights, the colors, the staging, the choice and the position of the model. The Judges will also check whether the originality of the photographs results from a deliberate choice and not imposed, " beyond the know-how of a professional photographer (Cass., Civ., 1time, May 15, 2015 No. 13-27.391, TGI Paris, 3th Bedroom, 2th section, 22 September 2017 no. 2016/04325).

Conversely, the photograph will not be considered original if it constitutes " the banal recovery of a common fund that cannot be appropriated (TGI Paris, 3rd ch., 1st sect., May 21, 2015 No. 14/03863).

In a decision of September 22, 2020, the deputy mayor and the municipality of Hénin-Beaumont were summoned by the publishing newspaper La Voix du Nord for having published on social networks an article as well as a photo published in the Voix du Nord newspaper.

However, the Court of Appeal did not consider the disputed photograph to be original since it represented a person " taken on the spot, during a public meeting, without the photographer having been able to impose his choices as to his placement, his attitude or his pose and that the chosen focal length was simply a matter of adjustment and not of creative and aesthetic choices.

As a result, the taking of the photograph by the deputy mayor and the municipality does not constitute an act of counterfeiting of copyright (CA Paris, Pôle 5, chamber 1, September 22, 2020, n° 18/19018).

More recently, the Court of Appeal of Aix en Provence dismissed a photographer's action for infringement of copyright brought against his former employer for the use of his photos of roses on his website and in its catalog without its prior agreement (CA Aix en Provence, October 21, 2021, n°21/02722).

The judges notably held that the photographer did not enjoy total freedom in the exercise of his activity, the photographs being taken for a purely commercial purpose of presentation/promotion of the roses, on behalf of his employer, who decided on the framing, light and depth of field.

The plaintiff asserted that beyond their utilitarian aspect, the disputed photographs showed his personal imprint making it possible to distinguish them from his predecessors and successors.

However, the appeal judges hold that:

"only the evolution of shooting techniques gives the photographs of the 1980s a slightly different aspect from those reproduced later, which shows not a new artistic orientation, but a simple improvement in shooting equipment" and " it is therefore right that, after having noted the impossibility of distinguishing the photographs taken by [the plaintiff] from those produced by his predecessors and successors, the first judges were able to deduce that the evidence by Mr. X of the originality of each photograph claimed by him was not reported; it is therefore appropriate to confirm the impugned judgment.”

According to CJEU, the imprint of the author's personality is assessed according to " (…) his creative capacities during the realization of the work by making free and creative choices”  (ECJ, 1er December 2011, aff. C-145/10).

The assessment of the originality of the photographs by the Judges is therefore made on a case-by-case basis and remains rather random.

In addition, the Court of Cassation recalled, in a judgment dated October 21, 2020, that when the original character of several photographs is claimed, the judges must “carry out a separate examination of each of the photographs in question and (…) and assess their respective originality, grouping them, if necessary, according to their common characteristics” (Cass., Civ., 1time, October 21, 2020, No. 19-16.193).

The Court of Cassation had indeed criticized the Court of Appeal for having simply recognized the originality of the photographs in a global manner without specifying how each of the works was original.

As soon as the originality of the photograph is characterized, any unauthorized use by a third party constitutes an infringement according to article L.122-4 of the Intellectual Property Code, thus infringing the economic and moral rights of the photographer provided for in articles L.121-1 and L.122-1 of the Intellectual Property Code.

Jurisprudence is regularly called upon to pronounce on the unauthorized use of photographs by third parties, whether the photographs are used directly by the photographers, or granted in Licence to companies in charge of managing their rights, such as Getty Images, Shutterstock, Corbis, etc.

By way of illustration, the Court of Appeal considered, with regard to a photograph of a princely family intended to illustrate a greetings card, that the personal choices of the photographer, in particular, the choice of an image structured, posed, sober and neat, the choice of standardization of color and clothing codes and the choice of lighting gives this shot a specific physiognomy which distinguishes it from other shots of the same genre, and undeniably translates, beyond a certain know-how in the service of an idea of modernity and family happiness, an aesthetic bias marked by the personality of its author (CA Paris, Pôle 5, Chambre 1, February 19, 2014, RG nº 12/16340) .

Consequently, the use of this photograph outside the authorized framework constitutes an infringement of the photographer's rights and an infringement of his moral rights, in particular the right to paternity, due to the reproduction of this photograph in the press without mentioning the names and qualities of its author.

Moreover, constitutes an infringement of the right to respect for a photographer's work, in particular an attack on the integrity of a photograph, the reproduction of this photograph in the press, when it has been slightly cropped on the left side and partially masked in the lower part, on the right side, by the representation of a greatly enlarged ring.

In a judgment rendered by the Court of Cassation, a photographer claimed Copyright on photographs representing works of art which have been taken, without his consent and without mentioning his name, in digitized form in an online auction catalog by the company (Cass., Com., 5 April 2018 n°13-21.001).

The Court of Cassation then recognized the originality of the photographs of the works of art, in particular because of the “aesthetic search for the positioning of each of the objects represented (…) by framing on a detail, or even by positioning several objects on the same photograph, (…) thus creating a “particular dynamic” .

Concerning the allocation of damages in compensation for the moral prejudice of the photographer due to the absence of mention of the photographer's name, the Court of Cassation quashed the decision of the Court of Appeal insofar as it did not not specify exactly “the number of uncredited and modified photographs taken into account”.

In another case, a photographer, claiming Copyright on three photographs representing a hotel, assigned the companies having reproduced the said works, without his authorization and without his name being mentioned, in a press file, on a presentation card as well as in various blogs.

After an analysis of each of the photographs, the Tribunal de grande instance of Paris deemed them to be original.

He then retained acts of counterfeiting of the three photographs as well as an attack on the authorship of the photographer's works but also an attack on the works themselves because the photographs were slightly modified.

The Court also favorably accepted the request for compensation for the damage of the photographer linked to the loss of opportunity to be able to sell his original photographs (TGI Paris, 3th Ch., 2th sec., 22 September 2017).

Consequently, it is advisable to be particularly vigilant and not to use a photograph, whatever the support on which the use is envisaged, without being certain of not harming the holder of rights or the company which has in responsible for the use of said photographs.

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