Copyright infringement by digitalization of photos by press agency without explicit authorization?

FRENCH SUPREME COURT, DECISION OF 30 MAY 2012

The First Civil Chamber of the French Supreme Court rendered a decision on the digitalization of photos by a press agency without express authorization from the photographer.

The French Supreme Court dealt with the question of whether such digitalization needs to be expressly mentioned in the contract for the commercialization of the photos between the press agency and the photographer or if this could be implied in the contract.  

The plaintiff was a photographer who had resigned as the employee of a press agency but agreed that the press agency could continue to exploit his photos after he had left the agency.

Following his departure the photographer noticed that some of his photos were displayed on the press agency's website, although he had not authorized this. He instituted infringement proceedings against the press agency, claiming infringement of his author rights in the photos.  

The Paris Court of Appeal found that the digitalization of the photos constituted an act of reproduction without authorization and a "transfer of the author rights which were not contractually planned and delimited". It concluded that the press agency infringed the author rights of the photographer.¹

This approach complies with the provisions of Article L. 131-3 of the French Intellectual Property Code, which contain strict requirements with regard to assignments of author rights. In particular, it requires that each assigned right (e.g. the right of reproduction, the right of representation, the right of communication to the public, the right of translation, the right of adaptation) and each type of use should be subject to a specific mention in the assignment agreement.  

However, the press agency lodged an appeal to the French Supreme Court, based on Article L. 131-3 of the French IP Code and, more surprisingly, Article 1134 of the Civil Code regarding contractual good faith.  

The French Supreme Court overturned the decision of the Paris Court of Appeal and stated that the court had to consider whether "the challenged online display of the photos (…) was implied, in the absence of contrary clauses, within the contract for the commercialization of these photos and the need for potential purchasers to preview them".

This decision is noteworthy as it seems to depart from the rule, according to which the assignments of author rights in France are governed by the general principle of strict interpretation of their provisions, resulting from Article L. 131- 3 of the French IP Code and applied by the French courts. It also takes into account the notion of good faith, whereas this notion is usually considered as irrelevant with regard to IP infringements.