The rights of the photographer, the intellectual property lawyer in Paris answers

The photos may be the subject of claims by their authors, for infringement of copyright, or by their agents, press agencies or image databases, in the event of unauthorized use:

Getty Images

France Media Agency

Associated Press

Reuters

BestImages

PicRights

PermissionMachine

RightsControl

The author must demonstrate the originality of the shot (fortunately quite free notion), or the parasitism caused….

The claim is difficult, the courts reluctant. Freedom of expression can come up against copyright.

With regard to the rights of the photographer: what rights can he come up against? picture of goods:

The snapshot taker may come up against the copyrights that are exercised on the photographed work, the right of the owner on the image of his property, the right of the person on his own image:

The owner's right to the image of his property

“the owner of a thing does not have an exclusive right to itimage of it »

This is the verdict of thejudgment of the plenary assembly of the Court of Cassation of May 7, 2004, subject to the application of other legal bases (private life, defamation, parasitism, disorder).

In decision rendered on February 2, 2018, the Constitutional Council does not, however, call into question the new article L. 621-42 of the Heritage Code, introduced by the “Freedom of creation” law of July 7, 2016, according to which "the use for commercial purposes of theimage buildings that constitute the national domains, on any medium, is subject to the prior authorization of the manager of the relevant part of the national domain.. The objective is to enhance the national heritage. The rule also applies to photographs of museum collections, movable public domain (jurisprudence of the Council of State). It is a specific exclusivity linked to the building in its material dimension unrelated to copyright which protects the property rights of the author of the intellectual, immaterial work (CE, 10th ch., June 21, 2018, n° 411005, Assoc. Wikimedia France), which falls into the public domain 70 years after the death of the author. I can rebuild a Chambord castle since the architectural work has fallen into the public domain, but I cannot freely use the image of the first (or the second castle if it belongs to the national domain) without authorization from the manager of the building.

The right of the person to his own image

The right to the image is a strong personality right sanctioned by theArticle 226-1 of the Penal Code, Article 9 of the Civil Code and by Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms which provides for the right to protection of private and family life and takes into account the need to balance this article 8 with article 10 of the same convention which protects the freedom of expression (journalistic exception).

According to case law, six criteria make it possible to arbitrate between the protection of personality rights and freedom of expression:

– the contribution of the publication in question to a debate of general interest;

– the notoriety of the person concerned

– the purpose of the publication;

– the previous behavior of the data subject;

– the content, form and impact of the publication;

– the circumstances in which the photos were taken or the method of obtaining the information and their veracity, depending on the nature of the breach.

Different regimes co-exist, depending on whether we are talking about a minor, a model, an athlete, a deceased, an employee, an artist...

The rights of the photographer, the lawyer in intellectual property law in Paris answers