Kettle Of Fish: The Concept Of Originality In Protecting Photographic Works

Kettle Of Fish: The Concept Of Originality In Protecting Photographic Works


Andrew Baker is a LLB/BCL candidate at McGill University Faculty of Law.

A decision of the Cour de Cassation de la France has led to some uncertainty as to when a photograph constitutes an intellectual work subject to protection.

The case involved a Marseille-based photographer, Patrick Box, who authored a photo originally published in a book dedicated to bouillabaisse, a fish stew popular in the south of France.  The photo depicted two fish, their bodies curved so that they were joined at the face and tail, on a yellow plate on a black background.  Box later transferred the photograph (among others) to the City of Marseille’s publication, La revue culturelle de la Ville de Marseille, to be used in an upcoming article on the topic of the city’s famous culinary delight.  The 211th edition was released in December 2005 containing a photo authored by another photographer.  The new photo contained parts of Box’s original which had been modified by the addition of more fish, all without his permission (see here for photos of the original and modified works).  Unable to reach an amicable solution with the publishers, Box took the case to trial.

Box’s argument is based on Art. 111-1 of the Code de la proprieté intellectuelle (CPI) which grants the author of an original work an incorporeal exclusive right which can be set up against others.  The existence or conclusion of a rental contract for a work or service by the author of an original work does not bring about a derogation of the author’s rights of enjoyment except where prescribed by law.  In other words, if the court deemed that Box’s photograph is an original work under Art. 111-1, he is granted protection against moral harm stemming from non-authorized use even though he transferred the photos.

At first instance, the trial judge found in favour of Box.  The defendants did not contest that the work had been partially reproduced.  The judge ruled that the photograph, by the choice of the elements which composed it including the colour, lighting, and angle, sufficiently demonstrated a mark of personality of the author constituting an original work.  The co-defendants were found liable in solidum for €15,165.

The Ville de Marseille appealed the decision, contesting primarily that the photograph should be denied protection accorded to an intellectual work under Art. 111-1 because it does not constitute an original work.  The Court of Appeal explained that originality signifies the reflection of the personality of the author or the revelation of a creative talent.  The court warned against confusing originality with mere professional competence possessed by a photographer in general, the latter amounting to a mere prestation of services rather than the creation of a protected work.  The Court of Appeal was not convinced that Box’s photo sufficiently demonstrated his personality as author and overturned the initial ruling.

The Supreme Court essentially upheld the decision of the Court of Appeal.  While somewhat reticent about the Court of Appeal’s reasoning which invoked factual elements, the Supreme Court agreed in principle that the explanation that Mr. Box’s services were merely technical was a sufficient response to the arguments brought forth by the parties (see here for a more detailed judicial history).

Article 112-2 of the CPI explicitly includes photographs as protected works.  But if no other formal legal process has been followed to guarantee protection, courts will require an aspect of originality to be present in a work.  Proving originality can be very difficult in a legal sense because there are no formal criteria for determining such a subjective question.  Yet, the stakes are high since the absence of originality will deny the author any protection.  The law must utilize a similar framework for fields as diverse as software and modern art.  The decision has photographers concerned that the legal standard for their particular profession is moving in the wrong direction because it demonstrates that even works destined for publication may not be protected.

Others contend that the decision does not demonstrate a problem with the judicial notion of originality or even the capacity of courts to apply such principles, but rather it illustrates that there is no protection for works deemed unoriginal.  This is especially the case with photography, which is highly susceptible to infringement.

The current decision does not draw any particular bright line rule as the court explicitly states that a photograph is still an original work when the personality of the author is revealed through the choices he or she makes in its production.  Yet, some disciplines may be more susceptible to the difficulties of demonstrating one’s personality in the final work.