France is often presented as a country which is quite protective of IP owners, especially in the field of trademarks and copyright. However, a recent decision rendered by the Paris District Court in relation to a portrait of Jimi Hendrix clearly goes in the opposite direction.
Gered Mankowitz is an English photographer who is the author of many portraits of pop and rock stars, such as Kate Bush, the Rolling Stones, and Jimi Hendrix. In 2013, Mankowitz saw that his 1967 photograph of Hendrix had been reproduced in an advertisement for electronic cigarettes, the only difference being that the old fashioned cigarette was replaced with an electronic one. The photographer, along with the company that had acquired the rights, sued the advertiser for copyright infringement and violation of moral rights.
The defendant advertiser argued that there could not be any infringement or violation because the photograph was not original. Under French law, photographs are treated like all other works of art: they are protected provided that they are original, which courts interpret to mean that the work must “reflect the artist’s personality.” This criterion is also used in the preamble of Council Directive No. 93/98/EEC of 29 October 1993 which harmonized the term of protection of copyright and certain related rights.
When courts deal with photographs, they tend to analyze the technical and artistic choices the photographer made and usually conclude that the photograph is protected. In this case, the photographer gave the following explanations:
This extraordinary and equally rare photograph of Jimi Hendrix manages to capture, for a very short moment, the striking contrast between the lightness of the artist’s smile and of the curl of smoke and the blackness and geometrical rigor of the rest of the image, created notably by the lines and right angles of the bust and arms. The capture of this unique moment and its enhancement through the light, the contrasts and the narrow frame focused on Jimi Hendrix’ bust and head reveal the ambivalence and contradictions of this legend of music. As a result, this photograph is a fascinating and highly beautiful work which reflects its author’s personality and talent.
However, the Court was not too appreciative of this somewhat lyrical description for three reasons. First, the Court held that art can have artistic merit without being original, and therefore the artistic merit of this photograph did not necessarily mean it was original. Second, the Court held that the key inquiry is whether the photograph reflects the personality of the photographer. By contrast, the photographer’s statements about Jimi Hendrix’ ambivalent personality were not relevant.
Finally, the Court held that the framing, background, and the choice of black and white were fairly common for this type of portrait. The photographer therefore was obliged to explain the choices he made in relation to the posture of the subject, his costume and general attitude. The Court found that, since the photographer failed to give sufficient explanations about these choices, he failed to establish that his photograph was original.
This outcome is somewhat surprising. One possibility is that the absence of certain kinds of explanations about the various technical and artistic choices that led to the photograph upset the judges’ expectations about the typical copyright case. The matter is now pending in the Paris Court of Appeal where, unlike in U.S. copyright cases, the photographer will have a second chance to present evidence and provide more detailed explanations about these technical and artistic choices. If he does so, the decision could very well be reversed. The case is expected to be heard on appeal in 2017.
The photograph is reprinted herein with permission of the photographer.
Update: June 21, 2017: The decision rendered by the Paris District Court on May 21, 2015 was reversed by the Paris Court of Appeal on June 13, 2017. The photographer, Mr. Mankowitz, did provide more details about the technical and artistic choices he had made back in 1967. He explained that he had organized the session, that he had asked Jimi Hendrix to pose and had opted for a specific camera (a Hasselblad 500c with a Distagon 50mm lens) in order to get a wide angle effect without too much distortion. He added that he was internationally acclaimed for his photographs of the Rolling Stones. The Court of Appeal concluded that this time, he had succeeded in demonstrating that the photograph was the result of free and creative choices that reflected his personality.
Unfortunately for Mr. Mankowitz, in the meantime the defendant has gone bankrupt so he may not recover a dime; but at least his portrait has been recognized as an original work of art protected under French copyright law.