Inclusion of a lamp in a photograph: French court sheds light on incidental inclusion

Copyright infringement cases often provide an opportunity to explore exceptions and limitations to copyright. This time this Kat encountered a recent French case involving incidental inclusion, an optional exception/limitation to copyright under EU copyright law [IPKat on incidental inclusion here]. 

Incidental inclusion of Kats or not

Facts

Philippe Cuny, a sculptor specialising in mirrors and lighting, created the "Lyre" lamp. This lamp was registered as an international design on 28 January 1991 [here]. Carlo Rampazzi, an interior designer, placed numerous orders for the “Lyre” lamp in various sizes between 1995 and 2006, in particular to decorate the Eden Roc Hotel in Ascona, Switzerland. Mr Cuny noted that Mr Rampazzi had posted several photographs on his Facebook and Instagram accounts promoting himself with a slightly modified version of the "Lyre" lamp, without any authorisation or mention of his name. Mr Cuny sent several cease-and-desist letters to Mr Rampazzi and his company on 23 May and 3 July 2018. Mr Cuny then brought a claim for copyright infringement against Mr Rampazzi and his company before the Tribunal Judiciaire (TJ) of Paris. In a decision dated 7 May 2021, the TJ found Mr Rampazzi liable of copyright infringement. The interior designer then appealed.

Mr Rampazzi and the "Lyre" lamp

Analysis

To reach its decision, the Paris Court of Appeal (CA) divided its reasoning into several steps.

Protectability of “Lyre”

Since the authorship of Mr Cuny was not in dispute, the Court ruled directly on the copyright protection of the “Lyre” lamp model. Basing itself explicitly on a combined reading of articles L.111-1, L.112-1 and L.112-2-10 of the French Code of Intellectual Property (CPI), the court recalled in particular that a work of applied art could be protected by copyright provided that it is original. The burden of proof lies with the person claiming to be the victim of copyright infringement. The Court's position is not surprising and is in line with established case law [IPKat on this point here].

Confirming the judgment of the court of first instance, the court validated the copyright protection of the “Lyre” lamp. Indeed, "the combination of a rounded structure in the shape of an asymmetrical harp, a veritable sculpture made of plaster then lacquered and painted in different colours according to the model, topped with small lampshades in traditional shapes and materials", the “airy and sensual appearance due to the rounded shape”, the fact that it "alternately resembles an amphora, a moving seaweed, loose legs or a plunging, dynamic fish due to its asymmetry", “the embodiment of both movement and serenity” are all elements characterizing the originality of the lamp.

This part calls for two additional remarks. The CA mentioned that Mr Cuny managed to reconcile the technical constraints of a lamp with a very personal representation. This passage appears to be a non-explicit reference to CJEU case law on the absence of originality resulting from technical constraints or considerations that leave no room for creative freedom [IPKat on Cofemel here].

As is often the case with judgments handed down by French courts, the terms used are not exactly those used by the CJEU, as the CA always refers to the notion of an imprint of an author's personality (i.e. Funke Medien, C-469/17 (at [23]).

Incidental inclusion

Subsequently, the Court of Appeal had to rule on the infringement of Mr Cuny’s rights. In this respect, the Court rejected the defence of Mr Rampazzi, who sought to invoke the defence of incidental inclusion in order to escape liability. The Court explicitly relied on article 5.3 i) of InfosSoc Directive and noted that such a defence has not been expressly codified under French copyright law. This void has been nevertheless filled by case law (i.e. here). Thus, the Court recalled that the notion of incidental inclusion should be understood as "a representation that is incidental and involuntary in relation to the subject treated or represented" (i.e. Cass, Civ.1ère, 12 July 2012, no. 11-15.165).

In this case, to rule out the application of incidental inclusion, the court analysed the allegedly infringing photographs. It found that "the lamp is in the very foreground and that the chosen staging - Mr Rampazzi slipping his hand between the two arms of the lamp whose shades are placed at the same level as his face, which they illuminate - highlights the object and gives it particular importance. The depiction of the lamp is clearly deliberate and cannot be described as accidental or unintentional". As for the second photo, the court underlined that "the lamp is in the background here, but it is nonetheless highly visible in all its features and highlighted in that it appears to be the main source of light in the scene, its light colour contrasting sharply with the rest of the decor, which is dark overall, and echoing the light illuminating Mr Rampazzi's face, which is placed at the same height". To put it simply, the lamp was far too prominent for its presence in the photograph to be considered accidental. As a result, the conditions for the application of the exception were not met.

Moral right of attribution

Finally, regarding the infringement of the moral right of attribution, the mere fact that the name of Mr Cuny was absent from the photographs published on social networks was sufficient to uphold it. Such a position is not suprising. The Court of Appeal added that this was reinforced by the way the photographs were staged, which unduly suggested that Mr Rampazzi was the creator of the "Lyre" lamp.