Protecting your photographs: what protection is there?

Photographs can be protected through various legal mechanisms:

• Copyright;
• Civil liability ;
• Database law ;
• Classic” property rights;
• Contract law.

These “tools” can be combined.

Other mechanisms, such as trademark law, may also be used. However, they will only be used for very specific needs.

Copyright protection is undoubtedly the king of protections. However, it is subject to a condition of originality, a vague legal concept (find out more), the existence of which is sometimes so controversial that it can only be determined by a judge.

Copyright protection is not subject to prior deposit or similar formalities. A work is eligible for protection as soon as it is conceived, even in draft form, provided this embryo is sufficiently developed. A deposit or similar formality may nevertheless be useful to prove the date of creation. This date is important when originality is challenged on the basis of prior art. The date of creation of a cliché can be proven by any means.

This protection does not depend on the type, merit or purpose of the photograph concerned.

It doesn’t matter whether the photograph is a reportage, art or family souvenir, whether it represents a landscape, a work of art or a portrait, whether it has a remarkable aesthetic quality or is intended to adorn a hardware store catalog. Judges are not art critics; the law forbids them to be. However, when assessing the originality of a photograph, judges are not always able to set aside their aesthetic opinions.

Copyright protection confers on the photographer so-called economic rights – monopoly of commercial exploitation – and so-called moral prerogatives (right to paternity, right to respect for the work…) (more).

In the absence of originality, a photograph can be protected by a civil liability action.

The mere production of photographs, even if they lack originality in the copyright sense, requires investment and, at the very least, work, if this production is the fruit of a professional activity. The purpose of a civil liability action is to protect this work and these investments.

The liability action, based on Article 1240 of the French Civil Code, can take two forms:

• Liability for economic parasitism ;
• The classic liability action.

Economic parasitism, a legal concept originating in case law, “consists, for an economic operator, in placing himself in the wake of another in order to take undue advantage of his efforts and know-how, notoriety acquired or investments made” (Cass., 13.04.2023, 21-23524) (find out more).

The parasite is not necessarily a competitor of the parasite (Cass., 25.03.2014, 13-13707).

As this notion of parasitism is sometimes narrowly interpreted by the courts, the sole notion of fault, i.e. in this case, the use of the work of others without purse strings, must be sufficient on its own, as the classic civil liability action relies solely on the demonstration of a fault, a prejudice and a causal link between this fault and this prejudice.

When the unauthorized user of a photograph has not designed, manufactured or produced anything, but merely slavishly copies a photograph found on the Internet to illustrate his or her own activity, he or she is misusing a work, and this misuse constitutes a fault giving rise to civil liability (find out more).

The fault here stems directly from a morally attenuated form of “theft”, i.e. the unjustified removal of another person’s property.

Articles L341-1 et seq. of the CPI give the producer of a database the right to oppose the extraction and reuse by third parties of all or part of the content of this database.

Protection is only granted to databases resulting from significant financial, material or human investment.

However, it may only prohibit the extraction and/or reuse of a quantitatively or qualitatively substantial part of the content of its database. He may also prohibit, under certain conditions, repeated and systematic extractions and/or reuses of insubstantial parts of his database.

The protection is therefore only effective if the extractions or reuses are of a certain scale: extracting all the shots relating to a given theme – portraits, for example – from a photographic archive site is therefore likely to infringe the rights of the database owner. On the other hand, taking a dozen or so shots from a database containing several hundred thousand does not fall within the scope of operations that the database owner can prohibit third parties from carrying out (find out more).

As everyone knows, “tangible” property, whether movable or immovable, can be the subject of a “classic” right of ownership, as enshrined in article 544 of the French Civil Code.

Thus, the material support of a photograph – a negative, for example – is something that a third party cannot steal from its owner, bearing in mind that ownership of this support does not confer on its owner, unless he or she is also the copyright holder, the intellectual property of the creation it supports.

The question of ownership, in the classic sense of the term, may be of particular interest in the case of computer files corresponding to digitized images. In order to use economic rights, the author or his assignee must be able to transfer the digital file of the cliché he intends to use or assign. This transfer should therefore confer on its beneficiary the right of ownership over this file (find out more).

However, the question of whether a computer file can be the subject of a property right, within the meaning of article 544 of the French Civil Code, is controversial.

It is established case law that a computer file, regardless of the medium on which it is stored, can be the object of fraudulent misappropriation (Cass., 12.01.1989, 87-82265 – Cass., 04.03.2008, 07-84002). However, this penalist approach to theft is not identical to the civilist approach to goods and property.

It should be noted that a judgment handed down by the Nanterre Court of Appeal on November 30, 2023, recognized that the unauthorized use of a photograph constituted an infringement of the owner’s right of ownership, as referred to in article 544 of the French Civil Code (22/02020).

The contract makes it possible to protect photographs to which the public can only have access via physical or digital “premises”, to which the rights holder alone holds the “key”. Let’s take the example of an exhibition organized by the photographer on his premises. Access to these premises may be subject to prior acceptance of “general conditions” stipulating that visitors may not exploit the images on display in any way whatsoever. This contractual prohibition constitutes a legally binding commitment.

What has just been said about a showroom is perfectly transposable to websites. The site’s general conditions of use must include a clause stating that the property rights attached to the site’s content are the exclusive property of its publisher. If the Internet user violates this prohibition, he or she will simply have breached a contractual obligation, and the photographer will be entitled to compensation without having to rely on copyright or parasitism (find out more).

However, contractual protection is limited: it requires prior acceptance of the contract by the offending user. A contract cannot be enforced against those who have not accepted it. The resulting prohibitions will therefore have no effect on all those – and there are many – who access images via an uncontrolled channel such as Google Images.

The protection afforded by trademark law is limited to preserving the essential purpose of the trademark, i.e. to identify the goods or services as listed in the application filed with an official body. In France, this is the INPI. It is therefore only able to protect the registered image against uses of the image, as a trademark, to designate goods or services identical or similar to those referred to in the registration. In addition, this protection is subject to filing and payment of royalties (find out more).