Photo credit: @webstylestory
Photographers' copyright and bloggers personality rights in the framework of the Fashion Week [1]

by Chloé Fernström - French Lawyer

Aside from the 2018 spring-summer Fashion Week taking place these days in Paris, the #NoFreePhotos movement was born from a group of street style photographers in order to report the unconsented use of their photographs by brands, influencers, bloggers, who largely release those, in particular on social media, without permission and, too often, without crediting the relevant photographer's name.

Against photographers' claims in this regard, most bloggers and influencers oppose in turn the use and release by photographers of photographs featuring them, without their prior consent, resulting from their perspective in a breach of their own personality rights.

Considering the many approaches, sometimes unclear and confusing, seen on social media, it is of essence to remind the applicable rules in terms of author's right ("droit d'auteur") and personality rights ("droit à l'image").

1. In relation to the author's right of the photographer

The photographer is the holder of the author's rights ("droits d'auteur") attached to the photographs made by him/her. According to article L.111-1 of the French Intellectual Property Code (Code de propriété intellectuelle), "the author of a work of the mind shall enjoy in that work, by the mere fact of its creation, an exclusive incorporeal property right which shall be enforceable against all persons. This right shall include attributes of an intellectual and moral nature as well as attributes of an economic nature (…)".

Therefore, the photographer holds, in relation to his/her photographs:

  • patrimonial rights, namely exploitation rights, which are economic rights, related to the work (1.1),
  • perpetual moral rights, imprescriptible and inalienable, attributing and acknowledging the authorship of a work to its author (1.2)

1.1. In relation to patrimonial rights

According to article L.122-1 of the French Intellectual Property Code (Code de propriété intellectuelle), "the right of exploitation belonging to the author shall comprise the right of performance and the right of reproduction."

Henceforth, upon making an original shot, the photographer is the holder of the "right of performance" or right to feature or represent, meaning the right to publicly share that shot, together with the "right of reproduction" meaning the right to materialize that shot (publication, exhibition, television, internet…) in order to be publicly shared.

In relation to the originality of the work, which is mandatory in order to ensure its protection under author's rights law, the Court of Justice of the European Union (CJEU) has ruled through the Eva Marie Painer case dated 1st December 2010, that the personality of the photographer stands out from the "free and creative choices" made throughout the execution of the work. Therefore, the choice made for the pose or the lighting, the choice of the angle of the shot or its framing at the time of the capture of the photograph, or the choice of the shooting location are as many elements that convey the imprint of the photographer's personality, thus making the work an original one.

The patrimonial rights attached to an original work may be assigned by the author to third parties, though in writing.

Such assignment can be limited in time, purpose, place or destination; and can be made for free or subject to a fee, exclusively or non-exclusively.

The legal instrument documenting the assignment of author's rights must be very precise and specify the exact field of exploitation of the assigned rights, given that in case of any doubt regarding the perimeter of such assignment, judges shall usually rule in favour of the photographer considering that anything that has not expressly been assigned remains the property of the author.

Outside such agreement any use, release or reproduction of a photograph is a breach to the patrimonial author's rights of the photographer, thus entailing a right to compensation in his/her favour.

In France, amounts awarded in compensation applied by case law under a breach of patrimonial rights for a photographer may vary according to the circumstances of each case and can reach several thousands of euros for each litigious publication.

In fact, amounts awarded in compensation to photographers, aiming to compensate their whole damage, do take into account the specific features to each matter and are likely to be increased, for instance depending on the scope of the audience affected by the unconsented release, its duration, or even, the fame of the photographer involved.

1.2. In relation to moral rights

Article L.121-1 of the French Intellectual Property Code (Code de propriété intellectuelle) sets forth:

«An author shall enjoy the right to respect for his name, his authorship and his work.
This right shall attach to his person.
It shall be perpetual, inalienable and imprescriptible.
It may be transmitted mortis causa to the heirs of the author.
Exercise may be conferred on another person under the provisions of a will. »

Whereas the exploitation rights of the work may be assigned by the photographer to third parties, the moral rights, inalienable, are mandatory and therefore cannot be derogated to.

Consequently, any use or release of a shot protected by author's right must necessarily credit the photographer's name or pseudonym. Any contractual clause providing for the contrary shall be deemed unenforceable.

A missing "photo credit" is thus systematically considered as a breach of the photographer's moral rights, triggering the liability of the author responsible for such omission by obliging him/her to compensate the damage caused.

At the end of the day, releasing an original photograph, regardless of the media or the way in which it has been materialized, without the express consent of the photographer, author and holder of it, and additionally without crediting his/her name, is a double breach to patrimonial and moral rights of the artist, triggering the obligation to compensate those two different kind of damage.

In the light of the above, in order to avoid potential litigation with photographers, bloggers and influencers are well advised to always request the permission of the photographer, ideally in writing, prior to releasing any photograph they are not the author of. Since it is also in the interest of street style photographers to have their work released in order to increase their visibility, such an agreement shall not, in principle, be difficult to obtain and will easily allow a steady release of pictures. Provided that, obviously, the name of the photographer is always credited in the caption, in a very visible way.

2. In relation to influencers' personality rights ("droit à l'image")

Against photographers' claims supporting the #NoFreePhotos campaign, a lot of bloggers retaliate opposing the use by the photographers of shots featuring them, which would result in a breach of their personality rights.

The issue of the protection of the personality rights of bloggers and influencers, aside of the Fashion Week, is a delicate one.

Articles 8 of the European Convention on Human Rights and 9 of the French Civil Code do ensure to all individuals the respect of their privacy and image (2.1). However, such protection can be challenged by certain limitations (2.2).

2.1. In relation to personality rights protection

A person's image constitutes one of the chief attributes of his or her personality, as it reveals the person's unique characteristics and distinguishes the person from his or her peers. Judges consider that such right to the protection of one's image is thus one of the essential components of personal development.

In a 2009 case, the European Court of Human Rights (ECHR) has defined the image right as a right that "presupposes the right to control the use of that image. Whilst in most cases the right to control such use involves the possibility for an individual to refuse publication of his or her image, it also covers the individual's right to object to the recording, conservation and reproduction of the image by another person" (ECHR, 15 January 2009, n° 1234/05, Reklos and Davourlis vs Greece).

Case law has acknowledged from a long time that such right benefits to any person, regardless of his/her fame, fortune, present or future functions.

Therefore, a blogger or an influencer has, obviously, the right to have his/her image respected.
However, such right may be challenged depending on the context in which such image is set and released.

2.2. In relation to personality rights limitations

It appears from case law, whether French or European, that personality rights may be challenged by the predominance of public information (2.2.1) or by the liberty of expression of the artist (2.2.2).

2.2.1 Personality rights may be challenged by the predominance of public information

The European Court of Human Rights (ECHR) has ruled for a long time that the protection of personality rights may be challenged by the predominance of public information.

It has thus been ruled that a person shall not be entitled to oppose the benefit of its personality rights in order to contest the release of a picture in case of:
- needs linked to a trending topic presenting an "utmost interest for the public" (ECHR, 24 June 2004, Von Hannover vs Germany),
- contribution brought by pictures or articles released in the press to feed a debate of general interest (in particular, ECHR, 14 February 2008, n° 20893/03, July and Libération vs France. – ECHR, 6 April 2010, Flinkkila vs Finland),
- prior disclosure of the information or usual deference of the person involved (ECHR, 23 July 2009, Hachette Filipacchi Ass. vs France).

In France, courts have been for a long time very protective of privacy, but under the influence of the European Court of Human Rights (ECHR), they have been led to make a broader space to the right for public information.

That is how, as of 1973, it has been ruled that: "According to the liberty of press and the right to information, it is the journalists' duty to inform the public of any event that appears to them to present any interest whatsoever" (Tribunal de Grande Instance (county court) of Paris, 31 August 1973).

This has resulted in a principle according to which the legitimate interest of the public may override the right to respect the personality of people when dictated by the needs of the information.

It is henceforth admitted that the right to respect one's image can be limited, for instance when the person involved works in a public domain or in case of a trending event.

Therefore, in relation to bloggers or influencers photographed during the Fashion Week, those could well lose the benefit to the protection of their image as those pictures seem to follow an information purpose related to a trending event. But only under some specific requirements.

Any exception to the protection of the rights to privacy and image under a trending event, because it does restrict an essential personality right, is only entitled under the strict requirement that:

- the picture is directly related to the trending event deemed to be illustrated;
- the photograph is respectful of the person's dignity and is not devaluing or humiliating;
- the related event is important, knowing that the assessment of the event's importance is left to the judges sovereign criteria ("appréciation souveraine").

The implicit agreement of the person involved in the image released may also be taken into account, for instance if the latter poses in front of the camera "smiling at the camera which he is not trying to avoid at all" (Tribunal de Grande Instance (county court) of Paris, 26 October 2016).

At the end of the day, everything is a matter of context and of analysis on a case-by-case basis.

In the event that a blogger is photographed, sitting among the public in a fashion show of the Fashion Week, he/she shall not be entitled, in principle, to challenge the release of his/her image as the picture is directly related to that event.

However, if that blogger is photographed in the street, in Paris, during the Fashion Week, the treatment shall be more delicate as a direct connection between the picture and the event may not be obviously established.

As a further example, in the event of a photograph taken in front of the entrance of a fashion show spot, the respect of the relevant personality rights is very likely to be dismissed. Likewise, if an influencer was photographed in a Parisian street far from a fashion show spot, dressed quite unusually to attend an event of the Fashion Week, such exception will also apply as the picture would directly, and quite relevantly, illustrate that trending event.

However, the release of the photograph of a blogger taken in a street outside all events of the Fashion Week, or stripped of any obvious connection to such event, could potentially result in a breach of his or her personality rights. Even more so if the blogger is not posing in front of the camera. That is how the Court of Versailles has ruled in 2011 that a photograph "taken plainly, on a sunny day, in a public place, though in the context of a promotional event" is a breach of personality rights as it is not evidenced that the person involved "appearing with untidy hair and no make-up, looking away from the camera, seems to have given her consent to the picture" (Cour d'Appel (court of appeal) of Versailles, 17 March 2011).

To sum up, each case requires a specific analysis of the person photographed, the photograph itself, and of the context in which such photograph has been taken.

That being said, in the light of the trending event that the Fashion Weeks embodies and of the context in which the bloggers' or influencers' pictures are generally taken, it is very likely that in case of litigation the benefit of their personality rights will be dismissed for the benefit of the predominance of public information.

2.2.2 Personality rights may be challenged by the liberty of expression of the artist

Case law acknowledges a photographer's right to creativity, which has allowed for instance the publication of a collection of photographs of anonymous people set in the street, though subject to the respect of the dignity and the right to privacy of the models.

The Tribunal de Grande Instance (county court) of Paris has thus ruled that:

- "The creativity of the photographer and the liberty of expression of that artist are only bound by the respect of the dignity of the person featured or by the particularly serious consequences that may be entailed by the publication of the relevant pictures for the subject" (Tribunal de Grande Instance (county court) of Paris, 25 June 2007) ;

- "Only a publication attempting to the dignity of the person featured, or that may have particularly serious consequences for that person, is likely to be a breach of personality rights triggering damages" (Tribunal de Grande Instance (county court) of Paris, 9 May 2007).

Likewise, in a 2008 case, the Cour d'Appel (court of appeal) of Paris adopted the following reasoning:

"Considering that the case file material show that the features of Isabelle d. de PUYSEGUR are recognizable and that it has not been contested that the picture was taken by the photographer in a public place without the consent of the appellant, she does not show any evidence that she protested against the taking of the picture, as it results from a photographic board provided by François Marie B. that he has taken not only one but several pictures of Isabelle d. de PUYSEGUR, who appears very calm and whose first claims have been addressed on 29 November 2005, after the publication of the book, to the photographer, to the Gallimard book publishers and to villa Medicis;

Considering that those who create, interpret, release or exhibit a work of art do contribute to the exchange of ideas and opinions indispensable to a democratic society (…);

Considering that the protection of third parties rights and the liberty of artistic expression are of identical value and that their balance should be sought by picking a solution protecting the most legitimate interest;

Considering that personality rights must be overridden by the liberty of expression each time such exercise would result in arbitrarily challenging the liberty to receive or share ideas specially expressed through the work of an artist, except when a publication does attempt to the dignity of the person or shall have particularly serious consequences for that person."

Therefore, should a photographer release photographs of a blogger taken in the street for purely artistic purposes, then those bloggers will only be entitled to challenge the release of their image if able to prove that their dignity or their privacy has been breached.

As a conclusion, if chances of success for a claim of a blogger photographed outside the Fashion Week may seem compromised, only an analysis on a case-by-case- basis shall enable to assess, depending on the precise context of the litigious publication, the impact of the predominance of public information and/or of the liberty of artistic expression over his or her personality rights.

[1] This article was originally drafted in French in order to describe legal concepts developed under French law and French and/or European case law. Therefore, please note that the legal concepts of "copyright" applicable under common law and "author's right" applicable under civil law are slightly different legally speaking.

Original article written in French by Chloé Fernström
French lawyer/ Avocat au Barreau de Bordeaux

Translated by Anne-Caroline Laporte

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