Using photographs: the proper use of contracts

In order to use a photograph, the following practical questions must first be answered:

• Who is the copyright owner?
• Who will be the user(s) of the photo?
• What type of operation is planned?
• What constraints apply to the use of the photograph?
• What type of contract is best suited to your operation?

The question seems straightforward. However, it is complicated in several ways.

• The principle

The principle: only the author, a natural person, of a photograph is the owner of the exploitation rights attached to this photograph.

This statement should be qualified from the outset whenever a third party is involved, directly or indirectly, in the design, production or content of the photograph: other photographer(s), decorator, client, etc.

Furthermore, the author-photographer may have transferred his rights, in whole or in part, to another person. If this is the case, we need to determine the exact extent of the rights still held by the photographer and those now held by the transferee.

• What about the salaried photographer?

The mere fact that a photographer is an employee of another person or legal entity, his or her employer, does not deprive him or her of the copyright attached to photographs taken during the performance of his or her employment contract (L111-1 CPI). As a result, in the absence of an express assignment of his copyright, the employee photographer does not transfer his rights to his employer. He therefore remains the owner of the exploitation rights (find out more).

In most cases, however, an employee photographer’s employment contract will include a clause assigning copyright. Alternatively, the employer can ask the photographer to sign a contract, separate from the employment contract, assigning copyright. If this clause or assignment contract is valid, the exploitation rights will be transferred to the employer (find out more).

In addition, photojournalists working for a media company normally assign the rights to use their images to the media company that employs them (find out more).

• Assumption that several people contributed to the creation of the photograph

The photographer may conceive or produce a shot with the help of others: advertising agency, stylist, other photographer…

If the contribution of these other people brings one or more creative elements to the final result, and these creative elements are original within the meaning of copyright law, then the photograph is a work of joint authorship. The co-authors of the photograph are then undivided owners of the exploitation rights attached to the photograph (find out more).

Similarly, if the photographer is simply following the precise instructions given to him by a third party, his contribution being purely technical, he will not be able to claim the copyright attached to the shot thus produced (find out more).

On the other hand, if the person or persons involved in the making of the photograph have only contributed an element that cannot be protected under copyright law – an idea, a technical or logistical contribution, an accessory, etc. – the photographer, as author of the photograph, retains full copyright in the photograph.

• Hypothesis of a photograph incorporating other people’s creations

It’s not uncommon for a photograph to incorporate, deliberately or otherwise, creations by other people: sculpture, poster, building, furniture…

In this case, while the author remains the sole owner of the copyright attached to his or her photograph, he or she may not practically exploit it without first obtaining the authorization of the creators of the creations represented in the photograph (more).

• Representation of a person’s image

In principle, the image of a natural person cannot be captured or used without the authorization of the person concerned.

Here again, while the owner of the exploitation rights attached to a photograph depicting this person may transfer his exploitation rights, he will not be able to transfer an effective right of exploitation if he has not obtained authorization from the person depicted (find out more).

• Hypothesis of a photograph taken on the initiative of a third party

When the photograph has been taken at the request of a third party, such as a communications agency or advertiser, the photographer may not be the owner of the rights to use the photograph.

In fact, if the instructions given to the photographer were very precise, so that he or she had little or no freedom in the conception of the photograph, the photographer will not be able to claim copyright over the photograph. If the photograph is original, the exploitation rights may belong to the person who gave the instructions.

In addition, the law stipulates that the legal entity or natural person who has taken the initiative to create a photograph, published and divulged under his or her direction and name, is, subject to compliance with strict conditions, the owner of the exploitation rights attached to this photograph. This specific hypothesis is that of the so-called collective work, a complex legal concept that raises numerous difficulties in practice (find out more).

• What happens in the event of the photographer’s death?

As with other assets belonging to the photographer’s estate, the exploitation rights attached to his or her photographs are transferred to his or her heirs or legatees. There are specific rules for the devolution of rights to so-called posthumous works, i.e. those that have not been disclosed during the photographer’s lifetime.

In practice, identifying the heir or legatee who will benefit from the exploitation rights may prove difficult. If there is more than one heir and the rights are held in undivided ownership, the agreement of all the heirs will be required.

• The assignee or sub-assignee of exploitation rights

The author, an individual, may have assigned all or part of his or her exploitation rights, notably to a collecting society. The assignee then owns the exploitation rights to the extent agreed in the assignment contract.

The assignee may, in turn, assign all or part of his rights to a sub-assignee, who will then own the exploitation rights to the extent agreed at the end of the sub-assignment contract. As no one may assign more rights than he or she has, the sub-licensing contract may not assign more rights than those assigned by the author to the principal assignee.

In practice, if the owner of the photograph has entered into a contract with a sub-licensee, he or she does not usually check the extent of the assignment granted by the author to the first assignee. In any case, in the absence of a clause to the contrary, the sub-licensee guarantees the owner of the cliché that he has the necessary rights for the agreed use.

The aim here is to identify the beneficiary and/or potential beneficiaries of the contract transferring a right of use that is being considered.

A contract for the transfer of exploitation rights to an image bank naturally does not have the same scope as a contract for a license, for a specific use, to a clearly identified person.

A distinction must therefore be made between :

• Contracts for the assignment of all or most of the exploitation rights, including the option for the assignee to sub-assign all or part of the rights;
• Contracts authorizing an identified person to make a specific use of the photograph.

Furthermore, to avoid any misunderstandings or disappointments, the beneficiary of the transfer of exploitation rights must be clearly identified (name, company name, company registration number, etc.). You should also consider whether or not this beneficiary is entitled to transfer rights of use to third parties.

• A written contract is essential

The assignment of a photographer’s exploitation rights is subject to compliance with strict formalities: the contract must be in writing and include compulsory information. Failure to do so may render the assignment null and void or, at the very least, ineffective (find out more).

If the transfer of exploitation rights takes place between the author’s assignee or a sub-assignee and another sub-assignee, the formalities imposed by the CPI do not apply. Nevertheless, given the particular nature of the rights assigned, a minimum of formality is required to clarify the scope of the assignment (more).

• Choosing the right type of contract

A distinction must be made between :

• Special contracts, in that they concern economic operations specifically regulated by the CPI. This is the case for publishing contracts. The parties are obliged to use this type of contract if the operation they wish to carry out falls within the scope of these specific regulations.
• Common law” contracts in that they can be adapted to any economic operation not specifically regulated. Formal requirements may, however, apply. The parties are free to define the legal framework of their collaboration as they see fit.
• Contracts relating to the medium of the work, such as, for example, a contract for the sale of a photographic print. These contracts, which do not concern copyright, do not come under intellectual property law.

• Assignment or license?

There is no fundamental difference between an assignment contract and a copyright license contract, and this distinction is virtually irrelevant. Everything depends on the content of the contract, whatever its name and the terms used.

In practice, it is the exclusivity or non-exclusivity granted to the beneficiary of the assignment or license that is fundamental.

Indeed, if the author grants his co-contractor an exclusive right of exploitation, he prohibits himself from exploiting the “assigned” or “licensed” rights. Furthermore, he will not be able to “assign” or “license” these same rights to another person, whereas a non-exclusive “assignment” or “license” enables him to grant the same rights to others. These multi-assignments or licenses theoretically enable him to increase his revenues. Exclusivity therefore has a value in itself, which must be taken into account when the rights are actually exploited.

• What economic rights are assigned and for what uses?

Article L131-3 of the CPI imposes a formalism that protects the author. Each of the rights assigned must be mentioned separately in the deed of assignment. The field of exploitation of the assigned rights must be defined in terms of its scope and purpose, as well as its location and duration.

This leads us to define the scope of the transfer according to a scheme summarized in the table below.

This scheme is legally compulsory when the author of the creation whose rights are assigned/licensed, whether free of charge or for consideration, is the assignee/licensor of the said rights. It is not mandatory when the assignee is an assignee of the author’s rights (assignee, sub-assignee, etc.).

However, even in the latter case, in practice this scheme will be respected, as it enables the actual extent of the transfer to be determined as precisely as possible.

In the case of assignments/licenses granted by the author, it follows from these legal requirements that what is not expressly assigned/licensed remains with the author.