In Case C-145/10 Eva-Maria Painer v Standard Verlags GmbH 1 December 2011, the Court of Justice of the European Union (CJEU) held that portrait photographs enjoy the same copyright protection as any other work. The CJEU also found, however, that exceptions exist that allow the media to publish such photographs without consent.
Ms Painer is a freelance photographer who took several photographs of a young Austrian girl, Natascha K. Ms Painer sold the photographs without conferring on third parties any rights over them and without consenting to their publication. After Natascha K was abducted in 1998, a search appeal was launched using the contested photographs. Following Natascha K’s escape from captivity in 2006, but before her first public appearance, the contested photographs were again published by five newspaper publishers in Germany and Austria, in various media, without indicating the name of the photographer, or any other name. The newspaper publishers all said they had obtained the photographs from a news agency that had not provided the name of the author.
Ms Painer claimed copyright infringement and applied to the Austrian courts for an injunction and damages.
QUESTIONS REFERRED TO THE CJEU
The Austrian court sought guidance on, amongst other things, the application of Article 6 of the Copyright Term Directive (93/98/EEC). The court wanted to know whether a portrait photograph could be protected by copyright and, if so, whether, because of the “realistic” nature and the allegedly minor degree of creative freedom in such photographs, that protection is inferior to that enjoyed by other works, particularly photographic works.
The court also asked whether the exception in Article 5(3)(e) of the Copyright Directive (2001/29/EC) must be interpreted to mean that an express appeal for publication by the security authorities in the interests of public security is needed before the media can publish and, if not, whether the media can rely on Article 5(3)(e) of their own volition.
The court also asked the CJEU to clarify the conditions under which a protected work could be quoted in a newspaper for the purposes of criticism and review under Article 5(3)(d) and 5(5) of the Copyright Directive.
SUBSISTENCE OF COPYRIGHT IN PORTRAIT PHOTOGRAPHS
The CJEU held that in producing a portrait photograph, the photographer was indeed able to make “free and creative choices” in the choice of background, pose, lighting, angle, etc. Therefore, the CJEU noted, such a photograph can indeed be protected by copyright under Article 6 of the Copyright Term Directive if it is the intellectual creation of the author. That issue was for the national court to determine.
As for the level of protection afforded a portrait photograph under Article 2(a) of the Copyright Directive, the CJEU noted that there is nothing in the Directive that supports the view that the extent of such protection should depend on the degree of creative freedom in the production of different categories of works. Therefore, protection of a portrait photograph under Article 2(a) cannot be inferior to that enjoyed by other works, including other photographic works.
USE OF A PROTECTED WORK BY THE MEDIA IN THE INTERESTS OF PUBLIC SECURITY
The CJEU noted that the Copyright Directive does not contain any provision addressing specifically the circumstances in which public security can be invoked in connection with the use of a protected work. Instead, Article 5(3)(e) gives Member States the right to provide for exceptions or limitations to the rights provided for in Articles 2 and 3 of the same Directive for the purposes of public security, or to ensure the proper performance or reporting of administrative, parliamentary, or judicial proceedings.
However, only Member States, not newspaper publishers, were responsible for ensuring public security by appropriate measures. The media cannot, of its own volition, use a work protected by copyright by invoking an objective of public security.
It was, however, conceivable that a newspaper publisher might, in specific cases, “contribute to the fulfilment of an objective of public security by publishing, for example, a photograph of a person for whom a search has been launched”. Any such initiative should, however, be taken by agreement, and in coordination, with the national authorities.
QUOTATION OF PROTECTED WORKS
Article 5(3)(d) of the Copyright Directive, said the CJEU, was to prevent authors from objecting to publication of their works that have already been made available lawfully to the public by means of quotation accompanied by comments or criticism. In this regard, a “fair balance” must be struck.
In terms of striking a “fair balance”, this would be achieved in this case, the CJEU said, by favouring the exercise of the publishers’ right to freedom of expression over the interest of the author in preventing reproduction of extracts of a work that had already been made available lawfully to the public.
As for indicating the name of the author, the CJEU noted that Article 5(3)(d) does state explicitly that, in the case of a work that has lawfully been made available to the public, the name of the author must be indicated, unless it is impossible to do so. It was held that if the author’s name was not indicated lawfully by the national security authorities in their investigations, the subsequent use of those photographs by the press required the indication of their source, but not necessarily the name of the author.
This particular case is another example of the originality test moving towards an expression of creativity, rather than of skill and labour. The end result—that portrait photographs are capable of enjoying copyright protection—is not really a surprise. Given the level of “creativity” that appears to be necessary, whether such protection would apply to “snapshots” taken without much thought is, however, questionable.