Hendrix's portrait is original afterall say Paris Court of Appeal

Jimi Hendrix by Gered Mankowitz

Last week, the Paris Court of Appeal corrected the Paris Tribunal's interpretation of the originality condition with regard to photographic works. Or did they? 

At first glance, this decision looks like a classic case of the Court of Appeal setting the record straight on the interpretation and/or application of the law.  But looking at both decisions more closely, it seems that, in fact, counsels were taught a lesson on how to advocate for originality in the context of photographs, by the judges of the Paris Tribunal and Court of Appeal. So counsels, pay attention, copyright advocacy is our plat du jour !

The dispute

The copyright work at stake was none other than Hendrix's portrait shot by Gered Mankowitz - a UK photographer known for his work with world-famous bands and rock stars such the Rolling Stones, and indeed Jimi Hendrix. 

The dispute lay between Mankowitz and the company Bowstir Ltd (who owns the economic rights in a number Mankowitz' photographs including the portrait) and the French company Egotrade. Egotrade specialises in the sales of electronic cigarettes and accessories. In this context, Egotrade had used one of Mankowitz's portrait in their marketing campaign both online and in their shops located in Paris. 

First instance decision

a modelling cat in total control
of his pose

In March 2014, Mankowitz and Bowstir filed for copyright infringement against Egotrade before the Paris Tribunal. In a decision handed down on 21 May 2015, the tribunal rejected the plaintiff's claim on the basis that Mankowitz's portrait did not satisfy the originality requirement, and as such did not enjoy copyright protection. 

According to the Paris Tribunal, the claimants had failed to point to relevant elements of original expression in their plea, in accordance with the Painer decision of the CJEU. In Painer, the CJEU had concluded that a realistic photograph, like a portrait, may receive copyright protection like any other work so long as national courts could establish that the work is the "intellectual creation of the author reflecting his personality and expressing his free and creative choices in the production of that photograph" (para 99; para 150 (1)). 

The tribunal stressed that the plaintiffs' built their claim around the aesthetic qualities of the portrait instead of referring to the photographer's "free creative choices" in the preparation or production of the shot, failing thereby to show his "personal touch" in the work. A grave mistake as the tribunal considered that the plaintiff's did "not explain who authored the choices regarding the subject's pose, his styling, and overall demeanor." As a result, the decision concluded that "nothing [in this claim] enables neither the judge nor the defendants to grasp whether any of these elements which are essential to assess the originality claimed in the work [...] are the fruits of the author's reflection on the photograph or its subject, whether the work bears the stamp of [Gered Mankowitz]'s personality or that of Jimi Hendrix". "Mr Gered Mankowitz does not allow the defendants to debate on the question of the work's originality, and the judge to assess its relevance." 

The Court had also found the aesthetic merits of the photograph Mankowitz described to be fairly "common-place" for this type of portrait. Nothing in the "angle, black and white, light background destined to highlight the subject, and the lighting" was regarded particularly unusual or original in the common sense of the term, according to the French Supreme Court. 

In deciding so, the Paris tribunal reminded the parties of a fundamental principle of French copyright advocacy: "only the author may identify the elements that evidence his personality, judges cannot supplement his failure to do so". Whilst the tribunal did not rule out that the portrait may be found original, they were not provided with the relevant evidence to confirm so. In the meantime, no copyright protection may be claimed, the claim for infringement ends there. 

Appeal decision

In their appeal, the claimants made sure to stress that Mankowitz's portrait was indeed the result of his "free creative choices". Mankowitz submitted evidence supporting the claim that he "guided and directed Jimi Hendrix during the shooting and that he had asked him to take the pose featuring on the photograph at stake". Mankowitz also explained that his decision to shoot the portrait in black and white was a conscious choice "to give more depth to the subject and give him the image of a serious musician", among other technical detail about his creative process. 

On the basis of the claim thus re-framed, the Paris Court of Appeal declared Mankowitz's portrait of Hendrix original for copyright purposes. Surprisingly perhaps, the Court of Appeal decision made no reference to Painer - despite the fact that the CJEU's interpretation of originality in that case had been key in the first instance decision. Instead, the Court of Appeal couches the originality condition in rather odd terms by declaring that "the work must present a unique physiognomy evidencing an aesthetic parti pris and reflecting the stamp of personality of its author". The Court then moved to add that "these elements considered together with the fact that Mr Mankowitz is a photographer known internationally, notably for his work with the Rolling Stones, whose photographs enjoy a strong notoriety, establish that the photographic work at stake is the result of free and creative choices performed by the photographer, translating the expression of his personality". 

Whilst the outcome of the decision should be welcome insofar as it seems consistent with CJEU jurisprudence and accepted thresholds of originality in French copyright law... the reference to "aesthetic parti pris" or the reputation of the artist as pertinent by Court of Appeal in their assessment of the work's originality is at odds with well-established jurisprudence denying the relevance of genre, aesthetic merits or quality for the purpose of copyright (see, Cass. crim, 2 mai 1961: JCP G 1961, II, 12242 ; Cass.ass. plen. 7 mars 1986 : D. 1986, 405, concl. Cabannes, note Edelman; RIDA 1986, 136, note Lucas).

However, it should be noted that this not the first time the notion of "aesthetic parti pris" features in the rhetoric of the Parisian Bench. Indeed, in a decision dating back to 14 February 2007 (No 06/09813) the Bench relied on the concept of "aesthetic parti pris" to define the originality condition in relation to the design of Jean-Paul Gautier's perfume bottles known as "Homme" and "Femme" (NB: there seem to be a typo in the report of the case). This Kat suggests that the concept of "parti pris" be read without negative connotation necessarily but be understood as "choice" or "stand", rather than "bias" or "prejudice" - although the decision does not expand on the question.  

Take away points

• In France, originality in photographic works must be claimed (and pleaded) by making direct reference to the creative choices photographers make in preparation of, during, and after shooting. In this regard, the decisions of the Tribunal and the Paris Court of Appeal comply with the guidelines set out by the CJEU in Painer. Photographers must evidence creative control over the creative process, and show that the model had little to do with the visual results embodied in the photographs. 

• The originality test in France, at least with regard to photographic works, does not appear to be fully harmonized with CJEU case law, as elements alien to the European court's vocabulary such as "aesthetic parti pris" or the author's reputation are still taken into consideration. For more on the copyright protection of photographs in France see here.