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Unauthorized use of third-party photographs

Vanessa Bouchara

Updated on January 24, 2021
Unauthorized use of third-party photographs

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

The photographers can therefore benefit from a protection on their works under the copyright according to articles L.111-1 and following of the Intellectual property Code, in the condition that they can justify the originality of these photographs. The jurisprudence appreciates the originality of the photographs by taking into account many criteria such as, 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 verify whether the originality of the photographs results from a deliberate and not imposed choice, ” beyond the know-how of a professional photographer” (Cass., Civ.,1st, May 15, 2015 n° 13-27.391, TGI Paris,3rd Chamber,2nd section, September 22, 2017 n° 2016/04325).

A contrario, the photograph will not be considered original if it constitutes ” the banal reworking of a non-appropriable common fund ” (TGI Paris, 3rd ch., 1st sect., May 21, 2015 n° 14/03863).

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

However, the ‘Cour d’appel’ did not consider the disputed photograph to be original since it depicted a person ” taken on the spot, during a public meeting, without the photographer having been able to impose his choices as for its placement, its attitude or its pose ” and that the focal length chosen was simply a setting and not a creative and aesthetic choice.

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

More recently, the ‘Cour d’appel d’Aix-en-Provence dismissed a photographer’s copyright infringement action against his former employer for the use of his photos of rosebushes on its website and in its catalog without his prior consent (CA Aix en Provence, October 21, 2021, n°21/02722).

The judges noted that the photographer did not enjoy total freedom in the exercise of his activity, as the photographs were taken for the purely commercial purpose of presenting/promoting the roses, on behalf of his employer, who decided on the framing, the light and the depth of field.

The plaintiff claimed that beyond their utilitarian aspect, the litigious photographs manifested his personal imprint, allowing them to be distinguished from his predecessors and successors.

However, the judges of appeal noted that:

Only the evolution of shooting techniques gives the photographs of the 1980s a slightly different aspect than those reproduced afterwards, which does not show a new artistic orientation, but a simple improvement of the shooting materials” and that “ it is therefore right that, after having noted the impossibility of distinguishing the photographs taken by [le demandeur] of those produced by his predecessors and successors, the first judges were able to deduce that the proof by Mr. X of the originality of each photograph claimed by him was not brought forward; it is consequently appropriate to confirm the judgment under appeal.

According to the CJEU, the imprint of the author’s personality is assessed on the basis of “ (…) his creative abilities when making the work by making free and creative choices” (CJEU,1 December 2011, aff. C-145/10).

The appreciation of the originality of the photographs by the Judges is thus done on a case by case basis and remains rather random.

In addition, the ‘Cour de cassation’ recalled, in a decision dated October 21, 2020, that when the original character of several photographs is claimed, the judges must “proceed to 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., 1ère, October 21, 2020 n°19-16.193).

The ‘Cour de cassation’ had indeed criticized the ‘Cour d’appel’ for having simply recognized the originality of the photographs in a global way without specifying in what way each of the works was original.

Since 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 photographer’s economic and moral rights provided for in articles L.121-1 and L.122-1 of the Intellectual Property Code.

The jurisprudence is regularly led to rule on the unauthorized use of photographs by third parties, whether the photographs are used directly by the photographers, or licensed to companies in charge of managing their rights, such as Getty Images, Shutterstock, Corbis, etc…

For example, the ‘Cour d’appel’ 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 a structured, posed, sober and neat image, the choice of uniformity of the color and dress codes and the choice of lightings confer to this photograph a specific physiognomy which distinguishes it from the other photographs of the same kind, and unquestionably 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 of the authorized framework constitutes an infringement of the photographer’s rights and a violation of his moral rights, in particular the right to paternity, due to the fact that this photograph was reproduced in the press without mentioning the name and qualities of its author.

Furthermore, it is an infringement of the right to respect of a photographer’s work, in particular an infringement of the integrity of a photograph, to reproduce this photograph in the press, even though 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 decision rendered by the ‘Cour de cassation’, a photographer claimed copyright on photographs representing works of art that were included, without his consent and without mentioning his name, in a digitized form in an online auction catalog by the company (Cass., Com., April 5, 2018 n°13-21.001).

The ‘Cour de cassation’ then recognized the originality of the photographs of the works of art because of the “Aesthetic research of positioning of each of the represented objects (…) by a framing on a detail, or by the positioning of several objects on the same photograph, (…) thus creating a “particular dynamics”.

Regarding the award of damages to compensate for the moral prejudice of the photographer due to the absence of mention of the photographer’s name, the ‘Cour de cassation’ overturned the decision of the ‘Cour d’appel’ insofar as it did 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, sued the companies that had reproduced the said works, without his authorization and without his name being mentioned, in a press kit, on a presentation card and in various blogs.

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

He then retained acts of infringement of the three photographs as well as an infringement of the photographer’s authorship but also an infringement of the works themselves because the photographs were slightly modified.

The Court also granted the photographer’s claim for compensation for the loss of opportunity to sell his original photographs (TGI Paris,3rd Ch.,2nd sec., September 22, 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 not to damage the holder of rights or the company which is in charge of the exploitation of the aforementioned photographs.

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