Of the difficulty to frame photograph as a protected work and its consequences on social network.

On December 18, 2012, further to its acquisition by Facebook, Instagram unveiled its new terms of use, to be enforced on January 16, 2013. At the case of the redrafting of the contract tying the social network to it, users stood much-discussed undertaking which allowed the company to monetize its users’ photographs, notably for commercial and advertising purposes. Facing a major uproar from internet users Instagram elected to withdraw this provision and apologized fondly. However, such withdrawal only targeted the cancellation of clear terms of what the terms of use provided from the very beginning: the grant by the users to Instagram of the right to use the photographs uploaded on its platform.

Two days later, the courts of Paris rendered a judgment (TGI Paris, 3ème chambre, 4ème section, Jugement du 20 décembre 2012 – Philippe G, Alexandra J c./ Paul M. (in French)) which may jeopardize the grievances of the social network users. Indeed, the judges refused to recognize that the airplane photographs take by individuals bore sufficient originality to allow any protection under French intellectual property law.

1. “Originality”, an objective criterion with a constant-aperture

a. Historical and legal framework snapshot

The above-mentioned case does not bring anything new on the involved legal concepts. Indeed, if the protection granted by the French Code of Intellectual Property (herein, the “FCIP”) aims at being the largest possible, as it covers “the rights of the authors on any work of the mind” (Article L 112-1 of FCIP), the case law came to complete this stance with an originality requirement.

Some authors trace back this requirement as far as 1862, in the case of the Portrait of the Comte of Cavour¹⁾ See Betbéder & Schwalbé v. Mayer et Pierson, Cour de Cassation – 21 nov. 1862 , during which the judges requested the demonstration of an expression “fuelled by the personality” of its author. Already more than a century and a half ago, photographs were in the middle of the legal fire fight.

Meanwhile, the same FCIP provides that its protection covers “the rights of the authors on any work of the mind, whatever its genre, its form of expression, its merit or its use.” (Article L. 112-1 FIPC)

If the appearances could underline a contradiction between the lack of appreciation of a given work’s merits and the requirement of some originality, such contradiction must be swept at once: while merits are a subjective notion, the originality factor, understood as the intellectual imprint of the author, aims at being objective in its analysis of the creative process. Moreover, the lack of originality would render the Article L. 112-1 without subject matter, inasmuch as it does solely target the “works of the minds”, excluding the pieces where the mind lacked any activity.

b. The pose of the Parisian judges: the Kiss (of death) by the Town Hall

In the December 2012 decision, two individuals had participated in an online discussion forum and had published airplane photographs which they had themselves taken. Following some division with the forum publishers, the individuals had requested that their works be taken down. Without any reaction from the publishers, they subsequently sued.

During the hearings, the individuals had to bring evidence of the originality of their works, in front of a jurisdiction which reminded that “a photograph may only be protected through in intellectual property law inasmuch as it results from a creative effort and does not simply result from the most faithful reproduction of a pre-existing work”.

Of the few dozens of photographs under scrutiny, only one was found eligible for protection, notwithstanding some depreciative comment from the judge, as for all the other submitted works, such as:

• For a 1971 photograph, the court underlined that the photographer was born in 1960, and was thus only eleven-year-old, thereby implying that children may not be mature enough to express originality. Mozart-enthusiasts will appreciate…
• The analysis of the photograph shows “the total lack of promotion of the airplane, which has been photographed under a most common point of view, with faulty lighting and a framing which could not allow the hide the public, massed around the plane.”
• “The sole placement of the subject in the centre of a photograph may not be considered as original”.
• The demanding party “has no control over the surrounding of the statue and it does not result from the analysis of the photograph that it has been performed with specific choices likely to showcase the value of the statue, which is the subject matter of the photograph. On the contrary, it appears that what may be especially seen in the photograph is the pedestal, which is also underexposed and melt with the surrounding tree without any specific artistic effect, as for the nearby building, which presences lack any interest.”
• As for the sole photograph which was granted protection, the judge took the time to notice that “the choice to photograph a place, or any part thereof, in the sunset is not original inasmuch as sunsets are an element especially looked-after by photographers and is exploited in numerous manners.”
• At last, the court underlines that it is the demanding party’s duty to indicate “in what way what appears extremely common may be the result of artistic choices, revealing its author’s personality.”

Therefore, it is the duty of the party requesting the protection by intellectual property law to evidence not only the approach, but also the justification that the approach, albeit personal, was not mandated, consciously or not, by surrounding factors.

Such a position by the courts opens the door for the subjective appreciation of a criterion meant to be objective, and threatens to move the scrutiny from the originality of the work to the merits of the work. As such, the street photographer, privileged witness of the decisive instant, may still be a privileged witness, but remains solely a witness, be it of a kiss, an ankle reflecting in a puddle, or a Spanish partisan being shot. What about the photo-reporter in the middle of the surrounding action? What about the landscape photographer who has just waited and dropped the camera for a shot?

French courts already had the opportunity to refuse the intellectual property law protection to photographs consisting of “objectives representation of biological phenomena” (Cour administrative d’appel de Nancy, 19 mars 2009 n°07NC01327 (in French)) or of the paparazzo photographer, whose “passive behaviour” did not showcase any “direction or specific framing, or any sort of viewing angle and even less of a choice in the timing to perform the litigious photographs.” (Cour d’Appel de Paris, 5 décembre 2007, n°06/15937 (in French))

2. The enlargement of the issue to the anticipated consequences on social networking

If tabloid photography is rendered devoid from any protection on the ground of intellectual property, it is a whole segment of popular press which runs the risks of losing its economy, thereby creating the possibility for any competing magazine, be it online or not, to run the same photographs, without any exploitation monopoly in the author’s or publisher’s hands.

With regards to the biological photographs mentioned above, the moral rights of the author were at stake and defeated, thereby preventing the PhD student/photographer from imposing her name on the reproduction of her photographs.

Meanwhile, with the ubiquitous rise of smartphones, everyone nowadays is a photographer. Every day, millions of people upload photographs, sometime applying a predetermined filter among a limited offer. Where should we then place the threshold for originality? Me in front of the Eiffel tower with a Borgia filter from Instagram? My lunch plate with a limited edition lens from Hipstamatic?

And wren the operation is repeating several times a week for several years, thus creating a backlog of publication ranging in the several thousands pictures, how one may be able to evidence the surrounding factors of a given photography?

If those daily-life chronicling photographer are reminiscent of the late great Doisneau or Arbus or the great Parr, their next exhibit is likely to take place on the next commercial brochure from social networks, legally, and without any compensation.

What may be a durable protection for such photographs, with subjective merit, and despised by so-called professional photographers, and followed in such footsteps by French courts?

What constitutes a photograph protected by intellectual property law? French civil courts seem to be following Potter Stewart’s position: “I know it when I see it”, which does not fare well for social network users…