Cropping photograph and omitting author's name may infringe moral rights

There is no doubt that photographs can be protected by copyright [IPKat here, here and here]. This Kat has found a recent ruling issued by the Paris Court of Appeal concerning a copyright infringement dispute involving photographs. This judgment provides an opportunity to examine the concept of originality as applied to photographs, and also to understand what may constitute an infringement of moral rights.

Slightly altered image of a Kat

Facts

In 2013, the RATP commissioned Amo Films to design and produce a collection of three photographic books. To achieve this, Amo Films called on the services of Mr F, a professional photographer and freelance filmmaker. Amo Films and Mr F learned that RATP had organised an exhibition of 27 of these photographs in 2016 and had reproduced 69 cropped shots in volume 3, despite their disagreement and without naming Mr F. Thus, Amo Films and Mr F brought an action against RATP for copyright infringement before the tribunal judiciaire (TJ) of Paris on 8 October 2020. In a judgment delivered on 13 May 2022, the TJ upheld the copyright protection of only part of the photographs and rejected all other claims of infringement, with the exception of the infringement of the photographer's right to integrity and attribution. Amo Films and M F appealed.

Analysis

Originality

The Court of Appeal first ruled on the eligibility of the allegedly infringed photographs for copyright protection. Relying expressly on a combined reading of Articles L. 112-1 and L. 112-2 9° of the CPI, the Court of Appeal recalled that photographic works may be protected by copyright provided that they are original. Originality is defined here by the Court as "the imprint of the personality of its author and not the banal repetition of a common stock which cannot be appropriated". The Court then added that "it is for the person claiming copyright protection to establish the originality of the work". This burden of proof comes as no surprise, as it is often cited in French copyright infringement cases [IPKat here or here].

Thus, confirming the judgement of the court of first instance, the court held that only certain photographs were "original in that they are the result of a combination of truly arbitrary choices, namely the compositional work obtained by the photographer's search for non-obvious angle conditions, the light and the alignment of external elements over which the photographer has no real control, obliging him to anticipate movement and to think of the best moment to take his photo, revealing an undeniable aesthetic research reflecting the imprint of an eye and a vision specific to the author, going beyond simple professional know-how". Such assessment of originality seems to be in line with the guidelines set out in Painer, C-145/10, [at 91].

Moral rights infringement

Quite logically, the Court of Appeal restricted its analysis to photographs qualified as original.

Relying on article L. 121-2 al 1 of the CPI, the court dismissed infringement of the right of disclosure. However, upholding the TJ's decision, the Court of Appeal found that there had been an infringement of Mr F's right of attribution because his name had not been linked to his work within the 3rd volume, even though an erratum had been published later by the RATP. The photographer's name appeared among other names of photographers in a list in the disputed volume. In this respect, it is sufficient for the author's name to be omitted or for it to be impossible to link it directly to his work for there to be an infringement of moral rights [IPKat on the right of attribution here, here].

Furthermore, upholding the photographer's arguments on this point, the Court of Appeal found "that the cropping of photographs 4009, 7406 and 0014, which altered the perspective resulting in a flattening of the visual and reduced the effects of light by making the colourimetry less clear, infringed the integrity of the works". However, the Court considered the slight cropping of the border of other photographs to be minimal and such as not to lead to aesthetic distortion. Therefore, those alterations did not infringed Mr F’s moral rights [IPKat on the right of integrity here, here]

Once again, such analysis is a factual one. When it comes to commissioned works, it is quite common to make slight modifications for the purposes of producing the final medium (e.g. photos adapted to the format of a catalogue). Those alterations might not automatically result in an infringement. The Court seems to apply a degree of tolerance as to what constitutes an infringement of the right of integrity. The aim is notably to curb the abusive nature of authors' requests, since moral rights are not absolute.

Economic rights infringement

The plaintiffs attempted to demonstrate that the RATP's display of these photographs constituted a breach of the reproduction rights granted for internal use only. In the end, the Court of Appeal rejected those arguments as “the exhibition held from 7 to 22 December 2016 fell within the contractual scope of an exhibition for internal use, even though Mr. [F]'s photographs may have been visible from outside the exhibition space (…) using the adjoining "internal street", and even though external persons were able to access this "internal street", access by the external public was only incidental to the internal use and no commercial use or advertising was made." The result would have been different if the exhibition had taken place in an external venue as it would not comply with the terms of the assignment.

Thoughts

This ruling reminds us what can constitute the originality of a photograph, as well as moral rights infringement. On the latter note, infringement of the right of integrity for slight modifications necessary for the incorporation of the work will not be upheld as long as these do not constitute a distortion. This has a particular impact in creative environments where a work is frequently incorporated (e.g. fashion items, catalogues, or illustrated books). It is also advisable to take care when drafting the assignment of rights by explicitly listing the intended uses.