On May 30 2012 the First Civil Chamber of the Supreme Court rendered a decision regarding the digitalisation of photographs by a press agency without the photographer's express authorisation.

The court considered whether such digitalisation must be expressly mentioned in the contract for commercialisation of the photographs between the agency and the photographer, or whether 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 agency could continue to use his photographs after he had left the agency.

Following his departure the photographer noticed that some of his photographs were displayed on the press agency's website without his authorisation. He instituted infringement proceedings against the press agency, claiming infringement of his authors' rights in the photographs.

The Paris Court of Appeal found that the digitalisation of the photographs constituted an unauthorised act of reproduction and a "transfer of the author rights which were not contractually planned and delimited". It concluded that the press agency had infringed the author rights of the photographer.(1)

This approach complies with Article L131-3 of the Intellectual Property Code, which contains strict requirements with regard to assignments of authors' rights. In particular, it requires that each assigned right (eg, the right of reproduction, the right of representation, the right of communication to the public, the right of translation and the right of adaptation) and each type of use be mentioned specifically in the assignment agreement.

The press agency appealed to the Supreme Court based on Article L131-3 and, more surprisingly, Article 1134 of the Civil Code regarding contractual good faith.

The 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 commercialisation of these photos and the need for potential purchasers to preview them."

This decision seems to depart from the rule whereby assignments of authors' rights are governed by the general principle of strict interpretation of their provisions, resulting from Article L131-3 of the Intellectual Property Code and applied by the courts. It also takes into account the notion of good faith, whereas this notion is usually considered irrelevant with regard to IP infringements.

For further information on this topic please contact Camille Pecnard at Hogan Lovells by telephone (+33 1 53 67 47 47), fax (+33 1 53 67 47 48) or email (camille.pecnard@hoganlovells.com).

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(1) Decision of April 8 2010.