What to do in the event of unauthorized use of a photograph?

The growing number of unauthorized uses of photographs, particularly via the Internet, is causing rights holders a significant loss of income. Already deprived of the legitimate gain corresponding to unpaid royalties, rights holders may be reluctant to take the necessary steps and incur the resulting costs to put a stop to these illicit uses and obtain compensation for their losses.

Recognized service providers now offer tools to identify such unauthorized use and, like legal professionals, out-of-court recovery services to obtain payment of damages from dishonest users. Appropriate rates apply to these services (see our terms and conditions).

If necessary, legal action may be taken.

In France, these amicable approaches and legal actions give rise to unjustified resistance, to an extent that is hard to understand: is it not legitimate for those who make a living from selling photographs to seek to defend their rights and interests against those who have not deemed it necessary to acquire them legally?

Whatever the case, it’s best to be prepared for the objections that some people are bound to raise, so that you can calmly take steps to resolve these disputes out of court.

In practice, the steps to be taken in the event of unauthorized use are as follows:

• Define as far as possible the nature of the rights that can be claimed
• Make sure of the extent of your rights to the photograph used;
• Ensure that the disputed use is indeed unlawful;
• Gathering evidence of illicit use ;
• Identify the person responsible for the illegal use ;
• Take amicable steps.

To qualify for copyright protection, a photograph must be original within the meaning of the CPI (find out more). As originality is an elusive concept, the rights holder cannot be completely certain that his or her photograph is eligible for copyright protection. This legal uncertainty is certainly regrettable, but it must be taken into account. For those familiar with the concept, an initial analysis should enable us to distinguish three categories of photograph:

• Photographs that are clearly original
• The probably original photographs
• Non-original photographs

In any case, even if the photograph in question is not original, but the result of professional work and investment, it clearly has economic value: to produce such a photograph, the dishonest user would have been obliged to incur more or less substantial costs (find out more).

Thus, the owner of a photograph is likely to be able to claim, at the very least, copyright, with greater or lesser certainty depending on the category to which the photograph concerned belongs, as well as the right to obtain compensation for damage resulting from the use, without purse strings, of his or her work. These two rights, which are of a distinct legal nature, are in principle exercised alternatively. They can only be combined in specific situations (find out more).

Any action taken against an indelicate user is only legitimate if the rights of the person taking the action have been violated by the indelicate user. Hence the importance of verifying the exact scope of your rights. A question of proof may also arise.

If proceedings are initiated by the author of the photograph, unless he has transferred all or part of his rights to a third party, he will have little difficulty proving that he is entitled to take action against the offending user: as a matter of principle, he is the sole owner of all exploitation rights attached to the photograph.

If these steps are taken by the assignee of the rights, a distinction must be made between the assignee of all the exploitation rights attached to the photograph and the assignee of only part of these rights.

The assignee – or sub-assignee – of the full exploitation rights, presumably acquired from the author of the photograph or the author’s first assignee, will also have no difficulty in proving his or her entitlement to take action against the offending user: all he or she will need to do is communicate the assignment contract granted to him or her by the photographer.

Likewise, in the case of an assignee of only a part of the exploitation rights, the communication of the assignment contract attesting to the fact that the offending user has used a right falling within the scope of the assignment granted to him, will suffice to establish his right to sue.

However, such proof can be tricky to provide, either because of the confidentiality of contractual clauses, or because it is in itself insufficient due to a succession of assignment contracts that the current rights holder is unable to produce – benefiting from a guarantee from his direct co-contractor, he has legitimately dispensed with verifying the entire chain of transfer of rights – or, quite simply, for practical reasons, usually of an administrative nature, as archive searches are time-consuming or unnecessarily expensive. It can also happen that the rights holder is not in possession of a transfer contract, without the author-photographer, who has sole control over the validity of the transfers he has made, ever having thought of contesting the effective ownership of the said rights.

Unscrupulous users often try to take advantage of these evidentiary difficulties. To cut short these objections, which are invoked with varying degrees of bad faith, the courts have developed a presumption of ownership of rights in favor of the owner of the work (more on this subject). This presumption does not, however, allow a dishonest user to challenge the owner of a photograph for ownership of the rights to the photograph in dispute.

The monopoly of exploitation conferred on the rights holder is not absolute. The CPI stipulates that in certain cases, the user is not required to obtain prior authorization from the rights holder. This is the case, for example, in the case of private and free representation within a family circle, or in the case of reproduction or representation for purposes of illustration in the context of education or vocational training (find out more).

Similarly, the so-called incidental representation of a work, particularly in the context of a film or documentary, is not considered an illicit use.

All these exceptions are to be interpreted strictly: they cannot be extended to situations that are not those, restrictively conceived, targeted by the legislator or the judge.

On the other hand, it may happen that a user has been legally authorized to use the photograph by a third party. This type of situation can arise when the photograph has been the subject of multiple assignments, and the consistency of the contracts thus concluded has not been ensured.

This non-theoretical hypothesis underlines the importance of contractual rights management.

The use of a photograph is a fact. Proof of this fact is free, i.e. all means of proof are admissible.

In a ruling handed down on July 7, 2021 (Cass. com., 20-22048), the French Supreme Court once again reiterated that infringement can be proven by any means, including screenshots of websites.

It can also be achieved through publication, testimonials, recognition of use, etc.

A bailiff’s report is therefore not compulsory. Moreover, the cost is often higher than the amount at stake in the dispute. While it facilitates proof of use, in that the report drawn up by the bailiff cannot in principle be contested except by means of an extremely rare specific procedure, the formalism imposed by jurisprudence on this mode of proof does not rule out the possibility that the probative value of a bailiff’s report may be called into question by a simple challenge to the way it was drawn up. Although bailiff’s reports are often presented as the ultimate form of evidence, they are not immune from challenge.

Considering that the respondents rightly point out that the reports of observations are without probative value since the bailiff connected to the Internet without the usual precautions and that, in any event, he does not mention the IP address of the computer; that these reports will be set aside from the debates (CA Versailles, July 15, 2015, Lexis 360 n° 13/07057).

As a general rule, all evidence is subject to the judge’s discretion. For reasons that must be explained, the judge may decide on a case-by-case basis that a particular piece of evidence is irrelevant (more).

It’s obvious: amicable or contentious procedures cannot be successful if the person they involve is not legally responsible for the unauthorized use.

Yet it’s not always easy to identify who’s responsible. Paper publishing products, if they are professional at all, identify the publisher without too much difficulty. The publisher’s name and contact details appear in the “bear” section of newspapers and periodicals. It’s essentially the Internet that can throw up some formidable pitfalls.

Who is legally responsible for infringing the rights of the owner of the photograph: the webmaster responsible for creating the content of the site responsible for the illicit use, or the “passive” publisher of the site?

• Service publisher: the person directly responsible for the content

The publisher of a site is fully responsible for its content, as long as he or she has control over it. You should therefore take action against them.

According to the law, a service publisher is a person whose activity is to publish an online public communication service, which is hardly enlightening. The legal definition is even more obscure when one reads the definition of online public communication: “Online public communication is defined as any transmission, upon individual request, of digital data not having the character of private correspondence, by an electronic communication process enabling a reciprocal exchange of information between the sender and the receiver”.

In simple terms, the publisher of an online public communication service is the person responsible for a website, i.e. the legal entity or individual who publishes and controls its content. Pursuant to article 6 of the law of June 21, 2004, the service publisher must make available to the public the information required for identification.

In principle, these compulsory information notices appear in the legal notices, a copy of which should be kept by the victim of photographic misuse.

Despite the penal sanctions applicable to non-compliance with these provisions, it is not uncommon for certain sites to lack such information. In such cases, you’ll need to cross-check (find out more).

• Limited liability of hosting providers

Hosting providers are “natural or legal persons who provide, even free of charge, for public access via online public communication services, the storage of signals, writings, images, sounds or messages of any kind supplied by recipients of these services”.

These service providers store information. They are merely intermediaries between content providers and Internet users consulting the site.

Examples of hosting providers include discussion forums or blogs, classified ad sites, a search engine, a platform enabling Internet users to post videos online, etc.

Insofar as these service providers do not play an active role that would enable them to have knowledge or control of the data stored, the law of June 21, 2004 subjects them to a specific liability regime that applies, in particular, to victims of counterfeiting.

A host may lose the benefit of this specific liability if it exercises control over the content. For example, it has been ruled that an intermediary who provides assistance to content providers, such as optimizing the presentation of sales offers or promoting them, is not a host (CJEU, 12.07.2011, C324/09 – Cass., 13.04.2023, 21-20252).

Article 6, I. 2 of the June 21, 2004 law stipulates that hosting providers cannot be held civilly liable for activities or information stored at the request of a recipient of these services if they were not actually aware of their unlawful nature or of facts and circumstances revealing such a nature, or if, as soon as they became aware of this, they acted promptly to remove the data or make it impossible to access.

In order to hold a hosting provider liable, particularly for unlawful use of photographs, it is necessary to obtain information beforehand. Case law is particularly strict about the completeness of the information provided to the provider by the victim of an infringement. A registered letter with acknowledgement of receipt is essential (find out more).

The “Digital Services Act”, which came into force on 17.02.2024, imposes stricter obligations on the very largest online platforms – Alibaba AliExpress, Amazon Store, Apple AppStore, Booking.com, Facebook, Google Play, Google Maps, Google Shopping, Instagram, LinkedIn … – but does not call into question the principle of the limited irresponsibility of hosting providers.

• Identifying the content provider

In the case of a photo published without authorization on a hosting provider’s site, identifying the author of the publication can be a daunting task. Most of the time, these are individuals who only make themselves known to the public by using pseudonyms. The victim therefore has no direct means of identifying the person responsible.

However, Article 6 II of the June 21, 2004 law stipulates that hosting providers must hold and retain data enabling the identification of anyone who has contributed to the creation of the content or one of the contents of the services they provide.

The victim of unlawful use will therefore have to request communication of identification data from the hosting provider. If the latter fails to comply with this request, the matter may be referred to the court for an order to do so, possibly subject to a fine.

For some years now, the legislator has been encouraging alternative dispute resolution methods. Mediation and conciliation have been strongly “promoted”, even when cases have already been referred to the courts.

Legal practitioners have not waited for this legislative craze to promote the virtues of the transaction to their clients. The confidentiality of exchanges between lawyers allows for free exchanges between the parties’ respective counsels. While legal argumentation is the essential foundation of negotiations, purely factual, economic and financial approaches can enrich discussions and help resolve many disputes.

Legal action is therefore just another means of resolving disputes.

In any event, article 56 of the French Code of Civil Procedure stipulates that, on pain of nullity of the document initiating proceedings, “unless there is a legitimate reason based on urgency or the matter in question, in particular when it concerns public order, the summons must also specify the steps taken to reach an amicable resolution of the dispute”.

This article therefore obliges the summons – the legal act by which proceedings are initiated – to mention the amicable steps taken prior to legal action. In so doing, it makes it compulsory, in a roundabout way, to take such steps.

We will therefore look at the following points in turn:

• Methods of calculating damages ;
• Stages of an amicable approach ;
• The results of this approach.

Standard templates are available, as well as a transaction template.

• Methods of calculating damages

The CPI enshrines an original method for calculating the damages suffered by the victim of an infringement. Theoretically, this method of calculation is only applicable in cases of unauthorized exploitation of a photograph – or other work – protected by copyright. Copyright protection depends on the originality of the photograph (more).

There’s nothing to prevent you from referring to it when using a photograph that isn’t protected by copyright. In view of the uncertainties inherent in the notion of originality, we recommend following the “principal” and “subsidiary” method as used by the courts: if the photograph is original, it is protected by copyright; if it is not, its unrestricted use constitutes a fault engaging the user’s civil liability. In both cases, the owner of the photograph suffers damages that justify compensation.

• 1^ère Method of calculating damages

This method is based on an individualized assessment of each of the losses suffered. These losses correspond to :

• Loss of profit, i.e. the amount of the royalty that the user would have had to pay if he had requested authorization for the observed use of the photograph;
• Costs incurred in identifying unauthorized use, putting a stop to it and obtaining amicable compensation for the damage suffered. These include the price paid to a technical service provider to identify the unauthorized use, postage, printing and stationery costs, and the time spent managing the file. Any other costs directly related to these steps may be added (e.g. legal consultation fees, bailiff’s fees, purchase of a model, etc.);
• Moral prejudice. If it is the photographer, author of the photograph, who acts, and the photograph is clearly or probably original within the meaning of copyright law, he or she can claim specific damages in the event of failure to respect his or her moral rights: absence of mention of his or her name, damage to the integrity of the photograph (cropping, cutting, poor aesthetic quality, etc.). In any case, moral prejudice exists when the name of the professional or rights holder (agencies, image banks, etc.) is not mentioned, as this is part of his or her communication and reputation. In addition, the context of unauthorized publication can have a devaluing impact on the photograph, which is, in any case, trivialized by the publication;
• The profits and investment savings that the unauthorized user may have made by exploiting the photograph. If the unauthorized user has sold the photograph or reproduced it on products he or she markets (T-shirts, mugs, bags, etc.), he or she will have made a profit from the actual commercial exploitation of the photograph. In the legitimate ignorance of the amount of the profits thus made, the victim of the illicit use can always reserve this prejudice in the expectation of precise information from the user. In any case, the law authorizes the victim of unlawful use to claim damages corresponding to the savings made by the offending user, who will not have had to make the necessary investments for the design and production of the cliché.

Quantifying these different types of damage should, as far as possible, be based on objective figures: royalties, costs incurred, etc. Quantification may prove difficult or impossible. This is particularly the case for moral damages. For the latter, the quantum of damages will vary according to the photographer’s reputation, the quality of the photograph, etc. Generally speaking, if the photograph is not well-known or of a specific quality, the quantum will be between 500 and 1,500 euros per photograph, a figure which is purely indicative. For other damages that are difficult to quantify, a lump-sum payment can be made, which may correspond to a percentage of the royalties that should have been paid (find out more). In all cases, objectivity is essential.

• 2nd method of calculating damages

Aware that “mathematical” calculation of the damage suffered, the existence of which is not in itself questionable, is an impossible requirement, the legislator has authorized a simplified calculation, a calculation that was practiced in case law well before this legislative creation.

The law thus authorizes the award of a lump sum as damages, which must necessarily exceed the royalties that would have been payable had the infringer requested authorization to use the photograph. To calculate this lump sum, it is customary to apply a multiplication coefficient to the basic royalty, generally between 3 and 5.

In addition to this lump sum corresponding to compensation for material damage, the victim of unauthorized use may claim damages for moral injury, which will be identified and calculated as described in 1 .^ère

• Stages of an amicable approach

First and foremost, it’s customary to write to the offending user. Registered letter with acknowledgement of receipt is the most commonly used method: it provides proof of the steps taken, which is difficult to contest.

There’s no reason why you can’t send a letter, send an e-mail or make contact by telephone. However, these latter means of communication are best used at the stage of actual exchanges with the offending user.

In any event, you should act with caution, both to preserve your rights and to avoid untimely steps. The recommended process is as follows:

1° – Reminder: before taking any action, collect and retain admissible evidence of unauthorized use.

2° – Reminder: identify the natural or legal person actually responsible for the unauthorized use. Keep proof of this identification (legal notices, media extracts, etc.). Check postal address (directories, Infogreffe, societe.com, etc.).

3° – Check that this person does not have a legitimate right of use, particularly if the photograph concerned has been the subject of a “multi-person” license for use, for example, when it has been granted to a company and its subsidiaries.

4° – Draft a “formal notice” and send it by registered mail. A sample letter is available here. An immediately comminatory style is not necessarily appropriate.

5° – If the user replies, reply to his arguments.

6° – If the user fails to respond, send a reminder (see reminder template).

7° – In the absence of a response, a second reminder may be appropriate.

• Out-of-court settlement

These amicable approaches may not result in an agreement. The only possible outcome is legal action, which is usually preceded by a final attempt to reach a settlement, formalized by the lawyer in charge of the case.

If an amicable settlement is reached, it is in the interests of both parties to formalize the agreement in a contract known as a “transaction”.

From the point of view of the rights holder, who is the victim of unauthorized use, the mere undertaking by the offending user to cease all use of the photograph(s) concerned, and to compensate him/her for the estimated loss, may prove sufficient if this undertaking is given in writing – by letter, fax or e-mail – and is capable of proving the undertakings thus given in the event that the user, acting in bad faith, suddenly withdraws.

In general, the user will legitimately wish to see the final settlement of the dispute. To do this, he will want to formalize the agreement reached by means of a transaction.

Transaction overview

Under article 2044 of the French Civil Code, “a transaction is a contract by which the parties, by mutual concessions, put an end to a dispute that has arisen, or prevent a dispute from arising”. According to the same article, the transaction must be drawn up in writing.

The existence of a dispute is a condition for the validity of the transaction. In this case, the existence of a dispute is difficult to contest. However, the preamble to the transaction should set out the essential facts of the dispute.

Reciprocal concessions are also a condition for the validity of the transaction: each party must renounce or commit to something. The offending user will generally undertake to pay the victim compensation for the damage caused. As for the victim, he or she will expressly waive the right to take legal action, while generally agreeing to reduce his or her claims for compensation. It’s all a question of negotiation, as general considerations outside the law can be taken into account: the good or bad faith of the user, the diligence required to put an end to the dispute, the financial situation of the infringer, etc.

The effects of a transaction

A transaction has important legal consequences. Article 2052 of the French Civil Code stipulates that “a settlement prevents the parties from instituting or continuing legal proceedings with the same object”.

According to the legal formula previously in force, the transaction has, between the parties, the authority of res judicata in last resort. Although this formula may have been more obscure for non-lawyers, it had the merit of forcefully expressing the scope of a settlement. By assimilating it to a final judgment, it made it clear that the dispute was eternally purged, provided of course that it was actually carried out.

In view of these effects, the purpose of a settlement, i.e. the nature and scope of the dispute it puts an end to, must be precisely and carefully circumscribed. It is not a matter of prohibiting the photographer from obtaining compensation for a use of which he was unaware.

The Civil Code is also careful to circumscribe transactions, telling us that they “are confined to their subject matter”, a formula which means that “the renunciation made therein of all rights, actions and claims is understood only as relating to the dispute which gave rise thereto” (article 2048). Article 2049 specifies that “transactions settle only those disputes included therein”.