For a new approach to the concept of originality

The concept of originality, as apprehended by French courts, undeniably weakens any creation that is not “pure” art. This criterion is the key to copyright protection (https://www.photo-ip.com/en/protecting-your-photographs-what-protection-is-there/).

This is the unfortunate reality every practitioner faces. The judicial interpretation of the concept leads to variable applications, depending on the judge, with the same court not always having the same appreciation of originality. The case of photographs is particularly illustrative of this imbroglio, with the requirements of some courts depriving photographers of the simple right to claim ownership of their work.

However,  intellectual property is a property that the 1789 Declaration of Human Rights deems as an “inviolable and sacred right” (Constitutional Council, Decision no. 2006-540 DC of July 27, 2006 – Decision no. 2017-649 of August 4, 2017). Is it acceptable to give judges such leeway in granting a fundamental right? Legal uncertainty is such that the predictability of the benefit of protection is virtually inexistent for the vast majority of creations that do not fall within the scope of a recognized art form.

Upon reflection, the reluctance of some judges to grant protection under the French Intellectual Property Code is surprising. Why treat the fruit of creative effort with such disdain, when the granting of ownership of a material thing is almost a given? What strange apprehension prevents the judge from granting a modest creator ownership of his work? Is it fear of the monopoly it implies? Is it the economic value it would confer on the “thing”?

One cannot see that the mere recognition of a right of ownership would confer to a thing more value than what is decided by the market. As for the monopoly, it is limited to original elements, which, in the case of the creations we are concerned with here, will often be reduced to the very specificity of the work itself, since its protection does not go beyond slave-copying.

So, what’s the harm in granting a wildlife photographer, who has taken a shot of a lion whose whiskers he obviously didn’t polish or impose a pose on, a photojournalist who has captured an incredible rugby tackle, or a landscape artist who has created a shot of a sunset over Halong Bay, a property over his work?

The criterion of originality, not provided for by law, is a judicial creation. There’s no denying the need to give some substance to the subject of copyright. This is, after all, is the justification for such a criterion, as the materiality of a good is sufficient to give property right on a object (https://www.photo-ip.com/en/etudes/the-originality-of-a-photograph-within-the-meaning-of-copyright-law/).

But very often, under the guise of originality, the courts indulge in an assessment of the work’s merit, whicht is prohibited by the law. Consciously or unconsciously, they take it upon themselves to judge the aesthetic value of the “creation” in order to deny or grant its author the simple right to claim ownership. According to the Rennes Court of Appeal, the contested photograph evokes “an impression of a maritime spectacle in motion, contrasting with the nonchalant family atmosphere reigning on the clear sandy beach” (17.01.2023, no. 20/05121). There is an undeniable poetry in the analysis. But is it compatible with a protection that the legislator intended to be independent of the genre, form of expression, merit and destination of the work?

The complacency shown towards the consecrated arts, even if they are conceptual, could give rise to fears of a form of elitism, with the favor of intellectual property being reserved only for works and authors deemed worthy of it.

Yet, this is not the intention of the legislator, nor is it the practice of most courts, which are bogged down in the practical assessment of a concept whose meaning  has become unclear

Moreover, some photographs are denied protection on the grounds that their “on-the-spot” aesthetic quality is merely the translation of technical skill, the photographer having had no control over the depicted scene . Should photojournalists be deprived of a property right overtheir shots on the grounds that “taken in fleeting moments, for the purpose of illustrating current events, these photographs are intended only to convey objective information or to transcribe as faithfully as possible a given event or situation” (TJ Nanterre, 30.11.2023, no. 22/02020)?

Photojournalism is a genre, and “shooting on the spot” a form of expression, neither of which can legally exclude copyright protection. Yet it is on such grounds that judges deny intellectual property rights to a whole range of photographic production.

The choice of the moment captured during the unfolding of an event involving multiple sequences is, however, a matter of arbitrariness and the free will of the photographer (CA Versailles, 3.09.2010 n° 09/03831 – for catalog photographs and minimal choices, CA Paris, 10.03.2015, n° 13/09634).

A single choice may be enough to characterize originality, such as placing the word “Paradis” in gold letters above the toilet door of the alcoholic dormitory in  a former psychiatric hospital (Cass. Civ. 1, 13.11.2008, 06-19021). It is true that in this case, “the artist’s conceptual approach, which consists in placing  a word in a particular place by diverting it from its common meaning, was formally expressed in an original material realization”, so that for the Court, the approach, because it was “artistic”, deserved protection. The choices were limited, however, and the “aesthetic” significance of the message was of relative transcendence. But that’s where we go astray, since making a personal assessment of the work’s merit …

Originality must be rethought and applied in the light of Article L.112-1 of the French Intellectual Property Code, which states that intellectual property protects “the rights of authors in all works of the mind, whatever their genre, form of expression, merit or purpose”.

Intellectual property should be broadly inclusive, without prejudging its value or the extent of a necessarily circumscribed monopoly. We must put an end to these unnecessary, time-consuming and costly uncertainties. A law devoid of legal certainty is no more than a jungle teeming with useless rules. Intellectual property law deserves better than a shaky foundation made of odds and ends.

Let’s hope that legal experts will stop indulging in endless debates on the elusive concept of originality. Freedom of choice and a minimum of intellectual effort should  enought to grant to the author the fruits of his labor.