The use of a photograph without its author’s authorization may constitute an act of author rights infringement. To this end, the photograph on which the action is based must benefit from author right protection, within the meaning of articles L.111-1 and seq. of the French Intellectual Property Code. It is thus up to the author to provide proof of the original aspects of the work.
The proof of this originality is not easy to provide in practice. It is at the heart of many disputes. The decision of the Court of Cassation of October 21, 2020 reminds us of certain lessons.
In this case (1), a photographer took several pictures of roses, for the benefit of horticultural-producing companies, without any assignment contract on the rights on the photographs having been duly signed. Some of these photographs were reproduced in these companies’ catalogs, which were subsequently distributed to the public. Considering that some of the photographs had been reproduced without his authorization, the photographer sued these companies for infringement of his author right.
This ensued a debate between the parties especially regarding the originality of these photographs of roses.
The Aix-en-Provence Court of Appeal (2) ruled the debate in favor of the photographer, considering, based on an overall assessment, that all the pictures were original and therefore covered by author right since the photographer had benefited, in the exercise of his activity, "from a great freedom of action regarding his artistic choices", whether through the shooting, the choice of the subject or the preparation of the staging. Since the exploitation of the photographs was not expressly authorized by their author, the defendants were condemned.
This decision was overturned by the Court of Cassation in a decision of October 21, 2020 (1), which challenged the method used in the appeal decision to assess the originality of the photographs. Indeed, the Court recalled that only a "separate examination of each of the photographs" allows one to assess their respective originality. However, a clarification is made about photographs presenting common characteristics for which the Court of Cassation admits that they may be grouped together, in order to facilitate their examination, if necessary.
This solution is reminiscent of a similar decision of May 11, 2017 (3) concerning photographs of soccer players taken in bursts and reproduced, without the photographer's authorization, on several works, the Court having refused any global analysis of the works and invited the judges to proceed to a separate examination of each of the photographs.
The decision of October 21, 2020 is an opportunity to underline, once again, the importance of concluding an assignment contract on photographs, prior to any use. As the formalism in this matter is demanding, simple mentions such as "transfer of rights" on invoices or a tacit agreement cannot be sufficient. Particular attention must therefore be paid to the rights transferred (especially, definition of the exploitation rights - reproduction and distribution media -, duration, territories of exploitation).
(1) Cass. Civ. 1st, October 21, 2020, No. 19-16.193
(2) CA Aix-en-Provence, February 21, 2019, No. 16/00083
(3) Cass. Civ. 1st, May 11, 2017, No.15-29.374