Photographic work

A photographic work is protected by copyright provided it is original. Article L. 112-2 of the French Intellectual Property Code lists photographic works and works produced by techniques analogous to photography among works of the mind. Article 6 of Directive 2006/116/EC specifies that photographs are protected where they are original in the sense that they are the author’s own intellectual creation, no other criteria being applicable. Protection arises without deposit and applies whatever the process, film or digital.

The conditions of protection

The particular difficulty with photography is that it captures a pre-existing reality by a mechanical process. Originality can lie neither in the subject, which is free, nor in technical quality alone. The Court of Justice of the European Union holds that the photographer expresses free and creative choices at each stage of production: during preparation, through the choice of setting, the subject’s pose or the lighting, when taking the picture, through framing, angle and the atmosphere created, and when printing, through developing techniques or retouching. Photographs of pure reproduction, such as catalogue shots, identity photographs or automatic shots, are frequently held to lack originality.

The photographer’s rights

The photographer enjoys the economic rights of reproduction and performance as well as the moral right. The right of attribution requires his or her name to be credited on any publication, and the right of integrity allows the photographer to object to cropping, colourisation, flipping or a distortion of context. The assignment of rights to an agency, a publisher or an advertiser must comply with the formal requirements of Article L. 131-3 IPC, and the delivery of files entails no implied assignment. The term of protection is the ordinary one, seventy years after the photographer’s death, after which the photograph falls into the public domain.

Third-party rights in the subject photographed

Photography brings competing rights into play. The person photographed has image rights, based on Article 9 of the French Civil Code, which allow him or her to object to the dissemination of his or her image without consent, subject to the right to information. The owner of property may object to the reproduction of its image only by showing an abnormal disturbance. A photographer who reproduces a protected work, whether a sculpture, a painting or a building, must obtain the authorisation of its author, save for an exception. Directive (EU) 2019/790 further provides that a faithful reproduction of a work of visual art in the public domain gives rise to no copyright or related right, unless the reproduction is itself original.

Key points

A photograph is protected if its author made creative choices in the preparation, the taking or the processing, which he or she must be able to demonstrate shot by shot. The photographer must obtain the consent of the persons depicted and of the authors of the works reproduced, and the user must obtain a written assignment and credit the author’s name. Before publishing any image, its source, its rights and the authorisations attached to its subject should be checked.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats is a patent litigation firm. Matters outside that field, such as trade marks, designs, copyright and IT contracts, are handled by practitioners the firm works with regularly, and by the firm itself when they arise in a patent dispute.

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