Designing and shooting a photo: constraints to take into account

The production of a photograph can be subject to various constraints. These constraints can arise either at the capture stage or at the processing stage.

Wherever possible, these constraints should be taken into account as soon as the shot is taken. Future operations may be limited by constraints that have not been purged beforehand.

The main constraints are summarized in the table below.

Personal image rights

A person’s image is any physical characteristic that enables him or her to be identified. So, above all, it’s the face. But it can also be anything that enables a person to be identified. This identification can be based on a particular physical characteristic, which is assumed to be sufficiently distinctive for the person to be identified.

Anyone, regardless of their reputation, may object to the capture and use of their image.

In principle, any natural person identifiable in a photograph must have authorized the capture and use of his or her image.

Although authorization may be tacit, it is strongly recommended that it be formalized in writing. Proving the existence and scope of tacit authorization can raise major difficulties.

In addition, the Cour de cassation is now more demanding in terms of formal requirements. While written authorization is a matter of contractual freedom, it must stipulate “in a sufficiently clear manner the limits of the authorization given in terms of its duration, its geographical scope, the nature of the media and the exclusion of certain contexts” (Cass., 20.10.2021, 20-16343).

In certain cases, the authorization of the person represented is not required. This is the case, for example, in the case of reproduction of a person’s image as part of the exercise of the right to information, or for the image of deceased persons (find out more).

Freedom of artistic creation and freedom to photograph

As with freedom of expression, freedom of creation is enshrined in Article 10 of the European Convention on Human Rights.

To what extent does creative freedom exempt the photographer from having to seek permission from the person photographed to capture and then use his or her image?

Here again, we have to weigh up two norms of equivalent legal value, namely freedom of expression and the right to an image.

For some courts, creative freedom is broader than freedom of expression, in that it requires greater freedom for the author, who can express himself or herself both on consensual themes and on subjects that offend, shock, displease or worry.

Although the French Supreme Court has yet to rule on the matter, the courts are very much in favor of creative freedom: image rights should systematically give way to creative freedom.

The difficulty here lies in distinguishing between “artistic” and “non-artistic” photographic work.

In this respect, it should be noted that the decisions handed down concern photographs intended for publication or exhibition. It is therefore not so much the photographer’s artistic work as the “artistic” mode of exploitation that justifies the primacy accorded to creative freedom.

Moreover, freedom of artistic expression is limited by respect for the dignity of the person depicted.

In matters of photographic art, the photographer’s creativity and freedom of artistic expression are limited only by respect for the dignity of the person portrayed, even if vulnerable, or by the particularly serious consequences that publication of the images would entail for that person (TGI Paris, 25.06.2007, 06/10149).

To assess whether the dignity of individuals has been respected, the courts focus in particular on :

• The fairness or unfairness of the shot;
• Circumstances revealing that the person photographed tacitly agreed to be photographed or, at the very least, did not object, even in the case of psychologically fragile persons;
• The artistic interest of the publication in which the photographs were published;
• Respectful and tender treatment of subjects;
• The absence of sensationalism;
• A presentation that is not humiliating or degrading.

A person’s dignity is violated when his or her image is used in a demeaning setting, showing him or her in a particularly crude and explicit sexual scene, in which sexual pleasure is combined with the pleasures of alcohol. This use was deliberately demeaning, intended to arouse mockery (CA Paris, 03.10.2019, 18/27200).

Similarly, whether nude or not, the photographic fixation of an unhealthily sexualized image of a very young child or a very young girl can only be degrading for the latter, whatever the author’s intention or the subjectivity of the audience for which it is intended (CA Paris, 27.05.2015, 13/00051).

A portrait, taken in a private setting, at the family’s home, at the family’s request, with no plans for public distribution or exhibition does not authorize the artist-photographer to use the image in a context other than that for which it was taken without the express authorization of the person concerned (CA Paris, 29.10.2014, 13/08445).

The right to the image of property

The owner of an object does not have an exclusive right to its image, but he can oppose the use of this image by a third party when it causes him an abnormal disturbance (CC-07.05.2004-02-10450).

While this rule also applies to property belonging to public bodies (the State, local authorities, etc.), managers of buildings belonging to national estates may require prior authorization before using images of these buildings for commercial purposes. Similarly, certain public establishments, such as museums, may prohibit photography of property on their premises (find out more).

In any case, the image of goods, movable or immovable, protected by copyright, can only be used with the prior authorization of the owner of the copyright attached to this good. Please note that the copyright owner must not be confused with the owner of the property. However, there are exceptions to this rule (find out more).

Press law constraints

The law of July 29, 1881 on freedom of the press contains provisions affecting the freedom to produce and use certain photographs.

Article 35 ter punishes with a fine, when carried out without the consent of the person concerned, the dissemination, by any means whatsoever and whatever the medium, of the image of an identified or identifiable person implicated in criminal proceedings but who has not been convicted, and showing either that this person is wearing handcuffs or shackles, or that he or she is in pre-trial detention.

Article 35 quater punishes with a fine the dissemination, by whatever means and whatever the medium, of the reproduction of the circumstances of a crime or offence, when this reproduction seriously affects the dignity of a victim and is carried out without the victim’s consent.

Article 38 ter prohibits the use of any device for recording, fixing or transmitting images, as well as the transfer or publication of images made in violation of this prohibition, from the opening of the hearing of administrative or judicial courts.

Article 39 bis makes it a criminal offence to disseminate, in any way whatsoever, information relating to the identity or enabling the identification of: a minor who has left his or her parents, guardian, the person or institution that was responsible for his or her care or to which he or she was entrusted; a neglected minor; a minor who has committed suicide; or a minor who has been the victim of an offence.

Article 39 quinquies prohibits the dissemination, by any means whatsoever and whatever the medium, of information concerning the identity of a victim of sexual assault or violation or the image of this victim when identifiable.

Article 39 sexies covers the identity of national police officers, military personnel, civilian staff from the Ministry of Defense or customs officers belonging to departments or units designated by order of the minister concerned and whose missions require anonymity for security reasons.

The following may also apply to clichés:

• Articles 23 and 24 on incitement to commit crimes;
• Article 27 on the publication, dissemination or reproduction, by any means whatsoever, of false news ;
• Article 29 on defamation and insult.