Photography, like any intellectual creation, is not a good like any other (art. L. 111.3 of the CPI). The material ownership of the medium is distinguished from the immaterial ownership of the work (rights which govern the exploitation of the work).
Protection due to creation
No specific formality (deposit, etc.) is required for a work to be protected. The work benefits from copyright protection solely because of its creation (art. L. 111-1 of the CPI).
Spiritual works confer two types of rights on their author (art. L.111-1 of the CPI):
– Patrimonial rights, of an economic nature, which result from the exploitation of the work (art. L.122-1 and s. Of the CPI)
– The moral rights which protect the symbolic link, a kind of umbilical cord, which links the author to his work (art. L.121-1 and following of the CPI).
“The author enjoys the right to respect for his name, his quality and his work. “(Art. L.121-1 of the CPI).
The moral right of the author aims to protect the privileged link that the author has with his work. It is a personality right which is “perpetual, inalienable and imprescriptible”.
The absence of photo credit, the mention “DR”, the marketing designation of “royalty free”, the editing or denaturing of a photograph without the author’s consent are copyright infringements which are not eligible.
From constant jurisprudence, it is recognized that moral rights are of public order. This means that it cannot be waived. Both authors and broadcasters must respect these provisions in their agreements (contracts) under penalty of nullity of the disputed clause.
Fiscal and monetary rights
Patrimonial law governs the exploitation of the work (art. L.122-1 and following of the CPI). It belongs exclusively to the photographer as soon as he creates a work and not to the person who orders it.
Patrimonial law has two components:
– The right of representation requires the written authorization of the author for the communication of his work to the public (exhibition, television, Internet …), no public use can be made without the consent of the author.
– The reproduction right also requires the author’s written authorization for any fixation of his work on a medium allowing it to be communicated to the public (edition, display, delimitation of a transfer of rights).
The transfer of rights is the written authorization given by the author to exploit his work under specific conditions. It is a kind of rental of a work which remains the property of its author but of which the latter allows the exploitation for remuneration.
The law requires that the assignment of rights must be strictly and clearly delimited as to the scope, destination, place and duration and that each of the rights assigned be the subject of a separate mention (art. L.131- 3 of the CPI).
The philosophy of this provision is to reinforce the idea that the author has an exclusive right of exploitation on his work and he must always be able to control the use which is made of his work.
The contracts providing for a transfer of rights in which all modes of exploitation, all media, rights transferred ad vitam eternam, for the whole world do not comply with the CPI. Indeed, they do not clearly define the number of copies of the publication or displays and do not delimit the duration, the territory or the destination of the exploitation.
Art. L.131-3 of the CPI is a mandatory provision, it cannot be waived. In addition, in case of dispute, the judge operates a restrictive interpretation of these clauses in favor of the author. Anything not expressly transferred by the author remains his property.
The notion of “free of rights” does not exist in French law. This name is clearly contrary to the Code of Intellectual Property (articles L.111-1, L. 121-1, L. 131-3).
The exploitation of a work, without the authorization of its author, constitutes an act of infringement liable to be civilly sanctioned (articles L.122-4, L.335-2 and L.335-3 of the CPI). The author is then entitled to claim damages to repair the moral and economic damage suffered.
The denaturing of the work
Some distributors allow themselves to alter the author’s work by editing or modifying it without having requested the express authorization of the author. This practice is not in accordance with Art. L121-1 CPI on the moral rights of the author which provides that “the author enjoys respect for his name, his quality and his work”.
It often happens that artworks are broadcast without the name of the author being mentioned. These practices are illegal within the meaning of art. L.121-1 of the CPI.
Under many publications of photographs in the press, it appears the mention “DR” (Rights Reserved). This practice, far from being marginal, is manifestly illegal with regard to the moral rights of the author and the monopoly of exploitation enjoyed by the author.
It should be remembered that works of which we do not know the author (“orphan works”) can in no way be exploited without the author’s consent.
This explanation was provided by the Union of Professional Photographers (UPP).