The Authors' Take - The banality of a photograph’s theme does not exclude copyright protection

The banality of a photograph’s theme does not exclude copyright protection

On 26 January 2018, the Versailles court of appeal (CA) confirmed that the photograph of a bathroom could be protected by copyright, as understood under Articles L111-1 and L112-2 9 of the French Intellectual Property Code (CPI).

In 2010, X, a bathroom photographer, emailed Editair, a publishing company, several photographs of bathrooms he had taken with the view of concluding an agreement for their use. However, talks between them remained fruitless. In 2012, X found out that Editair had published his photographs without his consent. 

Arguing that his copyright had been infringed, X brought an action before the Tribunal de Grande Instance of Nanterre. On 31 March 2016, the TGI rejected his action on the ground that his photographs were not sufficiently original. X decided to appeal the decision to the court of appeal (CA).

Welcoming X’s claim, the CA held that the subject-matter of a photograph is irrelevant to its copyright protection. The court added that originality in a photograph of a bathroom could be expressed by choosing its lighting, framing, angle, highlighting of specific items, creating a determinate ambience, and digital editing. 

In similar cases, claimants should demonstrate that they have personally chosen the aforesaid elements. Claimants should remember that the existence of creative choices will be solely assessed on evidence brought before courts.

This case illustrates the principle of the 'unity of art’, according to which no distinction should be made between creative fields. Hence, the subject-matter of a photograph should never be a criterion of copyright protection.

Finally, this decision also clarifies what could (not) amount to a copyright assignment. Rejecting Editair’s argument, the CA held that a mere email would not be sufficient. A written agreement detailing each and every right that is being assigned is required. This formalism is a strict application of Article L131-3 CPI, even if not expressly mentioned by the court.

[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP).

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