The photographer's creative freedom and the rights of third parties

As for the freedom to inform, the freedom of artistic expression allows photographers to free themselves from certain constraints. However, not everything is permitted.

While image rights readily bow to the photographer’s creative freedom, the copyright of works depicted on a photograph strongly resists any unauthorized photographic appropriation.

An overview of case law.

Creative freedom and image rights

An artistic approach, within the framework of creative freedom, allows the author of a photograph to dispense with the authorization of the persons represented, both to capture and to exploit the photograph. In our opinion, this use should correspond to the usual uses in the field of art: gallery exhibitions, limited editions, etc.

The freedom to communicate information authorizes the publication of images of people involved in an event, subject to respect for human dignity. The same must apply when an individual’s exercise of his or her right to an image would have the effect of arbitrarily impeding the freedom to receive or communicate ideas and opinions, which is particularly expressed in the work of an artist. In the field of photographic art, the photographer’s creativity and freedom of expression are limited only by respect for the dignity of the person portrayed, or by the particularly serious consequences that publication of the images would entail for that person (TGI Paris, 25.06.2007, 06/10149).

The right of every person to his or her image, enshrined in article 9 of the French Civil Code and article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, must be reconciled with the principle of freedom of expression, which includes freedom of artistic creation, This may lead to a stricter interpretation of the scope of the rights protected by article 9 of the Civil Code, in particular with regard to the consent given by the person complaining of the infringement of these rights, and the absence of any undignified, degrading or even denigrating character of the work in question (CA Versailles, 05.10.2021, 19/06845).

With regard to the degrading nature of a photograph, the Paris Court of Appeal ruled that “the freedom of creation cannot be opposed to the images specifically targeted by the present proceedings, in that they are indisputably prejudicial to X’s dignity“. The Court specified that “whether nude or not, the photographic fixation of the 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 public for whom it is intended” (CA Paris, 27.05.2015, 13/00051).

Creative freedom and copyright

On the other hand, creative freedom does not usually justify infringement of a third party’s intellectual property rights. This was the opinion of the Versailles Court of Appeal in a case where a painter had used a third party’s photographs without the latter’s authorization. For the Court, the fair balance to be struck between creative freedom and copyright protection could not lead to the former taking precedence over the latter, since the use of these photographs was not necessary for the painter to exercise his creative freedom (CA Versailles, 16.03.2018, 15/06029).

The use of characteristic elements of a photograph in a sculpture is unjustified when the sculptor could have used a work other than the photograph and did not attempt to obtain the photographer’s authorization. Thus, the unauthorized use of this photograph was not necessary for the exercise of artistic freedom of expression, including social reflection (CA Paris, 17.12.2019, 152/2019).

In a ruling dated September 30, 2022 (20/18194), the Paris Court of Appeal even seems to consider that creative freedom is not an autonomous exception to the authors’ monopoly. It ruled that “the combination of this fundamental freedom and [authors’] exclusive rights leads to exceptions to the exclusive rights of copyright holders, which are exhaustively listed in article L. 122-5 of the French Intellectual Property Code”. The “appropriationist” trend cannot disregard the principle that the rights of the author of the pre-existing work must be respected.

In brief

• The non-disloyal capture of a person’s image and the use of the photograph for “artistic” purposes (excluding purely commercial or advertising purposes) without the authorization of the person concerned can be justified on the grounds of creative freedom.

• On the other hand, capturing and exploiting a copyrighted work requires the authorization of the work’s author, unless it can be demonstrated that the photographer’s creative freedom necessarily implied a reproduction of the work. Such a situation can only be exceptional.

• However, under article L122-5 of the French Intellectual Property Code, authorization from the author of the work represented is not required for :

– Provided that the name of the author and the source are clearly indicated, full or partial reproductions of graphic or plastic works of art intended for inclusion in the catalog of a judicial sale held in France for copies made available to the public prior to the sale for the sole purpose of describing the works of art offered for sale;

– The reproduction or representation, in whole or in part, of a graphic, plastic or architectural work of art, by means of the written press, audiovisual or online, for the exclusive purpose of immediate information and in direct relation to the latter, provided that the name of the author is clearly indicated;

– Reproductions and representations of architectural works and sculptures, permanently placed on the public highway, made by individuals, excluding any commercial use.

In addition to these exceptions expressly taken up by French law, there is the “incidental inclusion of a work or other protected object in another product” referred to in Directive 2001/29. However, the notion of incidental inclusion must be understood as a representation that is incidental and involuntary in relation to the subject treated or represented” (Cass, 12.07.2012, 11-15165 – CA Paris, 27.09.2023, 21/12348). If it is clear that the photographer has voluntarily reproduced the work, the exception will not apply.