#MajeMyDogandI: No copyright protection for a selfie in the lift

The issue of copyright protection in photographic works is a classic one. Throughout the years, it has featured in plenty of case law [e.g. here, here and here]. A recent decision of the Paris Court of Appeal provides a new illustration. More specifically, the dispute in question concerned copyright protection in a selfie taken in a lift, a widespread phenomenon on social networks.

The daily selfie of an influencer Kat 

Background

The facts are quite straightforward. Mercredie, an influencer, regularly posts selfies taken in a lift on her blog and social network pages, showing her in her daily outfit, accompanied by her dog. Each of her outfits are tagged so that her followers could identify the products worn.

During Summer 2019, Mercredie became aware of the fall-winter 2019 advertising campaign, entitled #MajeMyDogandI, by ready-to-wear company Maje. This campaign featured various models talking a selfie in a lift and holding the lead of a dog. [Click here to see the campaign]. Mercredie claimed that the campaign was based on photographs taken from her social networks, in particular one published on her Instagram story on 27 July 2018. As a result, Mercredie sent a cease-and-desist letter to the French brand on 16 September 2019.

The influencer subsequently brought an action for copyright infringement and parasitic conduct against Maje before the Paris Court of First Instance. In a ruling dated 13 August 2021, the Paris Court of First Instance dismissed the influencer's copyright claim but upheld the claim of parasitic conduct. Mercredie appealed the decision.

On the right side: Maje’s allegedly infringing ad; 

On the left side: one of Mercredie’s posts

Analysis

To rule on this case, the Court of Appeal divided its reasoning into several steps.

First of all, the Court, relying on a combined reading of articles L. 111-1, L. 112-1 and L. 112-2 9° of the French Intellectual Property Code (CPI), held that (my own translation) "the author of an intellectual work enjoys, by the mere fact of its creation, an exclusive intangible property right in that work that is enforceable against all (...) regardless of its genre, form of expression, merit or purpose, and that photographic works are considered intellectual works".

This is nothing new. As stated, there is abundant case law on the protection of photographic works under copyright.

This said, the court turned its attention to analyzing the alleged infringement. Indeed, it appeared that Mercredie had not been able to point out which of her photos had been allegedly copied without her authorization. She chose to modify her claim and to focus on one photo published on her Instagram story on 27 July 2018. In any event, the court noted that the allegedly infringed photograph was absent from the plaintiff's public Instagram profile. It appears to have been available only as a short story, for a period of 24 hours.

This point calls for a brief comment. In copyright infringement proceedings, it is essential for the author of the allegedly infringing work to identify precisely the work at issue, including its date of creation.

Once the question of the identification of the work was settled, the Court of Appeal ruled on the originality of Mercredie’s photo. In this respect, the Court, implicitly relying on case law, unsurprisingly noted that (my own translation) "it is up to the person claiming a copyright whose existence is disputed to define and explain the contours of the originality he or she is alleging".

On this point, this decision is in line with established case law. However, the judgment strongly suggests that failure to do so would lead to a breach of the right to adversarial proceedings, a principle enshrined in Article 6 § 1 of the ECHR.

The court also emphasised that (my own translation)“the originality of a work must be assessed globally, so that the combination of the elements that characterise the work through their particular arrangement gives it a distinctive appearance that demonstrates the creative effort and aesthetic features bearing the imprint of the author's personality”.

Once again, it should be noted that the French court refused to use the exact language derived from CJEU case law on originality (i.e. Funke Medien, C-469/17 (at [23]).

When it comes to defining the originality of a photograph, free and creative choices can notably be manifested in the choice of the setting, the pose of the person to be photographed, the lighting, the framing, the angle of the shot or the atmosphere created, the development techniques or the use of software. Such elements are consistent with Painer (at [91]).

To this end, Mercredie underlined that she made a number of artistic choices, including as regards the setting - a silver-tiled lift shaft lit by artificial light rather than an outdoor location with natural light - the subject, i.e., taking the photograph of herself, a particular posture - her dog's lead in one hand, a mobile phone in the other - the framing, by opting for a vertical format, and publishing the photograph as an Instagram story without retouching.

While it appears that the influencer sought to characterise each of these choices, the court eventually found, based on various Instagram accounts, that there was nothing original about them. Those elements had already been used by various influencers for more than two years. What's more, many of the choices she relied upon, as the court rightly pointed out, were dictated by technical considerations.

Finally, Mercredie tried in vain to explain her artistic approach. She described it as a (my own translation) "setting up a daily ritual on Instagram for her followers to present the outfits she had chosen to wear".

Once again, the court rightfully disagreed with the plaintiff. To acknowledge originality on this element would be akin to grant an unjustified monopoly of protection to a trend or style.

Unsurprisingly, the Court of Appeal thus dismissed the plaintiff's claim for copyright infringement for failure to characterize the originality of the work for which copyright protection was claimed.

From a practical point of view, this decision illustrates the arguments that could be developed by the defendant in a similar action, namely that the choices characterising originality are guided by technical considerations, that they are not personal but form part of a trend or style and are the simple repetition of well-established trends.