The banality of a photograph’s theme does not exclude copyright protection

The banality of a photograph’s theme does not exclude copyright protection Abstract M Z v SARL Editair, Cour d'appel de Versailles, 1st Chamber, 26 January 2018, 16/028941 The Versailles Court of Appeal (CA) has held that originality in the photograph of a bathroom can be expressed by choosing its lighting, framing, angle, highlighting of specific items, a certain ambience and by editing it digitally. Legal context This case required the Versailles Court of Appeal (CA) to consider Articles L111–1 and L112–2 9 of the French Code of Intellectual Property (CPI) to determine whether the photograph of a bathroom could be protected by a copyright. Facts Stéphane X is an interior designer and bathroom photographer. In 2009, he was asked to take photographs of two bathrooms. He named the first set of photographs ‘Amirault’ and the second one ‘Allouch’. On 3 March 2010, talks began between X and a publishing company, Editair. Subsequently, X emailed Editair, in high definition, several of the aforesaid photographs. Failing to find a mutual agreement for the assignment of X’s copyright, Editair decided to end negotiation with the photographer. In 2012, X found out that Editair had published those photographs online and in one of its magazines, without his consent. Arguing that his copyright had been infringed, X brought an action before the Tribunal de Grande Instance (TGI) of Nanterre. On 31 March 2016, the TGI rejected his action on the ground that his photographs were not sufficiently original. X decided to appeal the decision to the CA. Analysis In reaching a decision, the CA undertook several substantial considerations. The court began its analysis by addressing the originality of X’s photographs. In doing so, the CA recalled that under Articles L111–1 and L112–2 9 CPI, photographs may be protected by copyright. The court emphasized that the banality of the subject matter of a photograph (ie bathrooms) is not a criterion to exclude protection. X explained that he had personally chosen the angle and framing, and decided to keep a natural lighting, to create a determinate ambience and to digitally edit his photographs. Concerning ‘Allouch’, he had also chosen to open the door of the shower cubicle and to let the water flow in the sink. Accepting X’s arguments, the court held that those choices expressed his ‘personal touch’ and ‘his personal fondness’ of bathrooms. These very precise combinations of choices could not be found in third parties’ photographs sharing a similar theme (ie photographs submitted to the court by Editair). Nonetheless, the CA found that the digital erasure of furniture wear (eg scratches) could not be considered a creative choice. On the contrary, it was the expression of a necessary professional diligence. The choice of keeping only specific items in the bathroom was also disregarded. X had failed to provide any evidence demonstrating this particular choice. Indeed, a photograph showing the bathroom in its initial state was required (ie to verify the existence of a creative choice). Then, the court moved on to the assessment of the infringement claim. Having the burden of proof, Editair failed to demonstrate that X had granted any authorization to reproduce and to communicate his works. The CA held that an email (ie the one containing the photographs) alone could not amount to an actual copyright assignment. The court adopted a strict application of Article L131–3 CPI, even if it did not expressly say so. This is also in line with the settled case law requiring that each economic right assigned should be detailed and named expressly in a written agreement (Cour de cassation, 1st Civil Chamber, 12 June 2012, 11/10923). Eventually the court found that Editair had infringed X’s rights. In doing so, the CA surprisingly mentioned Article L222–4 CPI (which does not exist), instead of Article L122–4. Practical significance This decision is good news for authors and rightholders in photographs. It is a clear confirmation that a photograph can be protected by copyright, irrespective of what its subject matter is. Hence, this case is in compliance with the principle of ‘unity of art’, according to which no distinction should be made between creative fields. The judgment also provides guidance on what should be considered as tantamount to a creative choice. The claimant should demonstrate that he personally chose the lighting, framing, angle, highlighting of certain items and decided to create a specific atmosphere and digitally edit his photograph. Moreover, this decision provides a refinement of the originality requirement for photographs (Paris, Court of Appeal, 13 June 2017) and (C-145/10 Eva-Maria Painer v Standard VerlagsGmbH and Others [2011] EU:C:2011:798). It clarifies that the list of acceptable creative choices is an open-ended one. In any case, claimants should bear in mind that courts will base their originality assessment solely on the elements brought to their attention. If a choice cannot be detected from the photograph alone, then additional evidence will be required (eg a photograph of the room in its initial state). Otherwise, a court will dismiss this particular choice, as illustrated in this decision. In practice, authors will have to carefully gather evidences during the whole creative process. Any oversight could result in a creative choice being excluded. Finally, this case confirms that a copyright assignment cannot result from a mere email containing the work. A written agreement detailing all the rights assigned is required as understood under Article L131–3 CPI. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of Intellectual Property Law & Practice Oxford University Press

The banality of a photograph’s theme does not exclude copyright protection

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Publisher
Oxford University Press
Copyright
© The Author(s) 2018. Published by Oxford University Press. All rights reserved.
ISSN
1747-1532
eISSN
1747-1540
D.O.I.
10.1093/jiplp/jpy066
Publisher site
See Article on Publisher Site

Abstract

Abstract M Z v SARL Editair, Cour d'appel de Versailles, 1st Chamber, 26 January 2018, 16/028941 The Versailles Court of Appeal (CA) has held that originality in the photograph of a bathroom can be expressed by choosing its lighting, framing, angle, highlighting of specific items, a certain ambience and by editing it digitally. Legal context This case required the Versailles Court of Appeal (CA) to consider Articles L111–1 and L112–2 9 of the French Code of Intellectual Property (CPI) to determine whether the photograph of a bathroom could be protected by a copyright. Facts Stéphane X is an interior designer and bathroom photographer. In 2009, he was asked to take photographs of two bathrooms. He named the first set of photographs ‘Amirault’ and the second one ‘Allouch’. On 3 March 2010, talks began between X and a publishing company, Editair. Subsequently, X emailed Editair, in high definition, several of the aforesaid photographs. Failing to find a mutual agreement for the assignment of X’s copyright, Editair decided to end negotiation with the photographer. In 2012, X found out that Editair had published those photographs online and in one of its magazines, without his consent. Arguing that his copyright had been infringed, X brought an action before the Tribunal de Grande Instance (TGI) of Nanterre. On 31 March 2016, the TGI rejected his action on the ground that his photographs were not sufficiently original. X decided to appeal the decision to the CA. Analysis In reaching a decision, the CA undertook several substantial considerations. The court began its analysis by addressing the originality of X’s photographs. In doing so, the CA recalled that under Articles L111–1 and L112–2 9 CPI, photographs may be protected by copyright. The court emphasized that the banality of the subject matter of a photograph (ie bathrooms) is not a criterion to exclude protection. X explained that he had personally chosen the angle and framing, and decided to keep a natural lighting, to create a determinate ambience and to digitally edit his photographs. Concerning ‘Allouch’, he had also chosen to open the door of the shower cubicle and to let the water flow in the sink. Accepting X’s arguments, the court held that those choices expressed his ‘personal touch’ and ‘his personal fondness’ of bathrooms. These very precise combinations of choices could not be found in third parties’ photographs sharing a similar theme (ie photographs submitted to the court by Editair). Nonetheless, the CA found that the digital erasure of furniture wear (eg scratches) could not be considered a creative choice. On the contrary, it was the expression of a necessary professional diligence. The choice of keeping only specific items in the bathroom was also disregarded. X had failed to provide any evidence demonstrating this particular choice. Indeed, a photograph showing the bathroom in its initial state was required (ie to verify the existence of a creative choice). Then, the court moved on to the assessment of the infringement claim. Having the burden of proof, Editair failed to demonstrate that X had granted any authorization to reproduce and to communicate his works. The CA held that an email (ie the one containing the photographs) alone could not amount to an actual copyright assignment. The court adopted a strict application of Article L131–3 CPI, even if it did not expressly say so. This is also in line with the settled case law requiring that each economic right assigned should be detailed and named expressly in a written agreement (Cour de cassation, 1st Civil Chamber, 12 June 2012, 11/10923). Eventually the court found that Editair had infringed X’s rights. In doing so, the CA surprisingly mentioned Article L222–4 CPI (which does not exist), instead of Article L122–4. Practical significance This decision is good news for authors and rightholders in photographs. It is a clear confirmation that a photograph can be protected by copyright, irrespective of what its subject matter is. Hence, this case is in compliance with the principle of ‘unity of art’, according to which no distinction should be made between creative fields. The judgment also provides guidance on what should be considered as tantamount to a creative choice. The claimant should demonstrate that he personally chose the lighting, framing, angle, highlighting of certain items and decided to create a specific atmosphere and digitally edit his photograph. Moreover, this decision provides a refinement of the originality requirement for photographs (Paris, Court of Appeal, 13 June 2017) and (C-145/10 Eva-Maria Painer v Standard VerlagsGmbH and Others [2011] EU:C:2011:798). It clarifies that the list of acceptable creative choices is an open-ended one. In any case, claimants should bear in mind that courts will base their originality assessment solely on the elements brought to their attention. If a choice cannot be detected from the photograph alone, then additional evidence will be required (eg a photograph of the room in its initial state). Otherwise, a court will dismiss this particular choice, as illustrated in this decision. In practice, authors will have to carefully gather evidences during the whole creative process. Any oversight could result in a creative choice being excluded. Finally, this case confirms that a copyright assignment cannot result from a mere email containing the work. A written agreement detailing all the rights assigned is required as understood under Article L131–3 CPI. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

Journal

Journal of Intellectual Property Law & PracticeOxford University Press

Published: Apr 27, 2018

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