Photography and advertising campaigns in fashion and cosmetics industry
Or how the photographers of advertising campaigns can sometimes be qualified as simple technical providers…
Any company that uses a photographer to carry out an advertising campaign, especially in the fashion and cosmetics sector, takes care to assign the rights in a sufficiently broad and detailed manner to avoid unpleasant surprises.
Indeed, many companies that hire a photographer for an advertising campaign find that the photographer takes legal action against them because of a transfer of rights incomplete, badly worded or because of a use of the photographs beyond the scope of the transfer deed.
Under the provisions of Articles L. 131-3 and L. 131-4 of the Intellectual Property Code, the transmission of royalties is subject to the condition that each of the assigned rights is mentioned separately in the deed of assignment and that the the field of exploitation of the assigned rights is delimited as to its scope and purpose, location and duration.
Thus, any use or exploitation of a work that is not provided for in the transfer deed constitutes a counterfeit.
However, it is still necessary that the photographs can benefit from a protection under the copyright by virtue of articles L.111-1 and following of the Intellectual property Code.
For this, the photographs must be original and bear the stamp of the photographer’s personality(see in this sense ” The use of third party photographs without authorization“). Therefore, during the realization of the photographs, the photographer must not have been a simple technical service provider to be able to claim rights and reproach the unauthorized use of these photographs to his principal.
Particularly in the context of the realization of advertising campaigns, the artistic freedom and creative choices of photographers, when they work alongside the company’s Art Directors, can be very limited and the quality of author can legitimately be denied.
In fact, it is established case law that ” regardless of the artistic value of each photograph “The photographer has the status of author of the photographs he has taken for an advertising campaign, as long as the company or agency for which he has taken them does not prove that the photographer was ” a simple technical executor “(CA Grenoble, Civil Division 1, 1er June 1992 n°90/1306).
This was considered successively by the ‘Tribunal de Grande Instance de Paris’, and then by the Cour d’Appel de Paris in a decision issued on March 8, 2013 (CA Paris, Pôle 5, chamber 2, March 8, 2013, n° RG 12/09360).
In this case, a professional photographer had produced about twenty visuals to be used in an advertising campaign by the company DECS, which markets lingerie under the brand name Soleil Sucré. The photographer accused Soleil Sucré of infringing his copyright by displaying two large-format photographs taken by the photographer in the brand’s store windows without his authorization.
The ‘Tribunal de Grande Instance de Paris’ and the ‘Cour d’appel de Paris’ dismissed the photographer’s infringement claims on the grounds that he was a simple ” performer” and that he could not therefore claim any copyright over the disputed photographs.
For the ‘Cour d’appel de Paris’, it is because of the following elements that the photographer’s claim of copyright was refuted:
– No contract prior to the intervention of the photographer was concluded;
– The photographs were taken as part of an advertising campaign that aims to highlight the products to be marketed and not artistic research;
– The art director and stylist is the sole decision-maker of the elements determining the visual identity of the brand she has created;
– ” (…) The photographers are submitted during the shootings, for which the theme, the products worn and the settings are chosen ” by the artistic directorIn addition to the above, the company has “extremely precise instructions regarding the pose of the mannequins, the shooting angles, the lighting and the framing.
Consequently, the Court found that the photographer had merely carried out the instructions given by the artistic director during the shooting and that the decision-making role of the artistic director in the realization of the photographs marked only the imprint of his own personality and not that of the photographer. Therefore, the photographer could not claim copyright on the litigious photographs.
In a similar decision issued on January 22, 2021 by the ‘Cour d’appel de Paris’ (CA Paris, Pôle 5, chamber 2, January 22, 2021 – n° 19/10814), a photographer had taken several photographs of “ packshots “or ” product identification plans “ of a lipstick and a mascara for the cosmetic brand Bourjois, as part of an advertising campaign. The photographer had then assigned the rights he held on these photographs for a period of one year. However, the photographer noted that these photographs were still being used, beyond the limited duration of the transfer agreement, by Coty, which had in the meantime acquired the Bourjois brand. The photographer therefore sued the Coty company for copyright infringement.
The ‘Cour d’appel’ then considered that ” Mr. G. does not demonstrate having made personal and arbitrary choices of the subject, of the staging of the photographed object, of the composition, of the framing, of the angle of shooting or of the modifications after the taking of the photograph, translating an own approach and an aesthetic research, revealing his personal competences and his sensitivity He followed the precise guidelines of the Bourjois company to reproduce as closely as possible the precedents that were submitted to him. “
Thus, it is because of the very precise and detailed instructions given to the photographer that he cannot benefit from copyright protection on his photographs.
All of the decisions cited are interesting in that they set out the framework of the copyrights that the photographers have or not on the photographs they take. This is particularly true of advertising campaigns whose main purpose is to highlight the products to be marketed, and not artistic research.
In conclusion, companies using photographers for advertising campaigns must be particularly careful.
First of all,
First of all, attention must be paid to the flexibility given to the photographer in taking the photos. If the photographer has a great deal of artistic and creative freedom, he or she will certainly be attributed the quality of author and will therefore be able to claim copyright on the works in the event of a dispute.
In order to anticipate any litigation, companies must therefore provide for a deed of assignment that precisely identifies the author’s works, the duration of the assignment and the place.
Nevertheless, in order to take action for infringement, the author of the photographs must ensure that they meet the criterion of originality.
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