"ABC" on Photography Copyright in France
Instructions for the exploitation of Rights Managed pictures
1 - A photograph is a work protected by Copyright
The legal basis of French Copyright is defined in the “Code of Intellectual Property”.
Any intellectual creation legally turns into a “creation of the mind” if it has the author’s mark and is represented on a prop. As such, it is immediately protected by the Code of Intellectual Property.
When it comes to photography, legal precedents determine the “originality” of a work by criteria such as the photographer’s framing, shooting angle and light choices.
Two types of rights are linked to Copyrights:
Non-transferable, immutable and permanent, it is directly linked to the author himself. It implies:
- Respect of the work's integrity.
Consequently, a photograph cannot be modified, cropped or used in a photomontage except when expressly authorised by the author.
- Respect of name attribution or copyright.
The name of the photograph's author must be clearly mentioned on publications.
- The right of disclosure si par exemple l'auteur considère que la publication envisagée ne correspond pas à son éthique.
They are also known as the author's exclusive right to license or not his work for free or against royalties. It lasts 70 years after the author dies. The work then becomes public and can be used without economic compensation. The economic rights are:
- Representation right
It "directly" concedes the work to the public, for example during a public showing.
- Reproduction right
It "indirectly" concedes the work to the public, for instance on a book cover. In photography, the reproduction right is the most used.
A photograph is an immaterial creation so it cannot be "sold" or "bought". Actually, we "assign" or "obtain" the related economic rights, in proportion to a specific use of the image. Therefore, possessing the prop of a photo (print, slide or any digital file) does not allow reproduction or "representation" without the author's or the photo agency's prior authorization. The lack of payment of the invoice following to the license makes a usage illegal.
2 - The photo agency's role in the image distributions business.
The photo agency is a middleman between photographers and clients. Thus, the images distributed by agencies are governed by two contracts. The first one binds photographers to an agency and the second the agency and the client.
The Agreement between Photographer and Agency
It determines the extent of the license terms: the duration of the distributions, its geographical area and the possible exclusivity. It also defines the terms of the financial compensation - "royalties". The Agency attends to the respect of the author's moral rights.
The Agreement between Agency and Clienty
It conditions the usage (reproduction and/or representation rights) in proportion to the terms of the end-use. The license must be precise and clearly defined as to: type of prop, number of prints, duration of usage, geographical area, commercial or editorial context. Any unspecified use or re-use must be submitted to a new license request and the according royalty payment. Any non-authorized use can be defined as a counterfeit.
On no account the assignment of right invoiced by the agency to the client cannot infringe the contract that bounds the agency to the photographer.
3 - The depicted content and eventual rights of third parties
Additional rights may be attached to depicted contents such as people, objects, trademarks and work of art.
RIGHTS OF PUBLICITY.
It is a person's right to control his or her image and its use. It has been developed by the courts based on Article 9 of the Civil Code. It deals with protecting a person's private life and integrity. In order to act on this basis, it must be possible to completely identify the person.
Rights of Property (i.e. goods or real estate), based on ownership of Property.
Since a sentence of the French Supreme Court on May 7th, 2004, the owner has to prove an abnormal trouble due to the use of the image depicting his property.
This is an exclusive economic right accorded to a registered trademark (Industrial propriety).
Works of Art (conditions for reproducing a work of art in a photograph)
- If the photographed work is protected by copyright (its author is dead or alive for less than 70 years), it is mandatory to ask the author, his representatives or the author's company (i.e. ADAGP) for prior authorization to publication. The corresponding royalties have to be paid.
- If the photographed work is in the public domain the work can be used without any payment of royalties to the author but copyrights must be paid to the photographer.
Caution: neither the photographer nor the photographic agency is holder of the possible right of third parties. However, the photographer sometimes has a written authorization from the depicted person or the depicted object's owner. These "Model Release" (MR) or "Property Release" (PR) authorizations are attached to an image and always are clearly mentioned on the agencies' websites.
Nevertheless, these releases do not authorize any "sensitive", prejudicial, defamatory or pornographic use. It is up to the client and/or the end-user to estimate if the chosen image corresponds to the context, with or without additional rights. Indeed, the only one to detain such info is the end-user. In case of doubt, the agency may be able to contact the rights holder to ask for a specific authorization. If necessary, the agency can suggest another image to the client.
A peaceful use of image is conditioned by a clear communication of all the details related to the end-use between the agency and the client.
4 - The ten Golden Rules for using a "Rights Managed" image
- Respecting the General Terms and Conditions of Sales, respecting the uses defined in the invoice and/or the estimate
- The Agency's website displays represented Images in the database. This public interface is the agency's property and it is strictly forbidden to download or use an image without contacting the agency.
- The economic rights do not include the eventual third party's rights that may be attached to depicted.
- The use of a Rights Managed photo is specific, precise and defined. The image cannot be reused without a new request for authorization and payment of related royalties.
- Any use of a photograph without pre-approval is a counterfeit, even if the Photographer's and/or the Agency's signature is respected.
- The photograph must be respected in its integrity in accordance with the author's moral right. Unless authorized, a photo cannot be modified, cropped or integrated into a photomontage
- The copyright (photographer's name followed by the agency's) is a legal obligation (it is part of the author's moral right)..
- It is mandatory to send the complete proof of publication as soon as possible.
- Paying the invoice on time. The non-payment of the rights makes the unauthorized use a counterfeit.
- Returning to the Agency any analogical prop (slide, print, for instance) and destroying the digital support after use. It is strictly prohibited to keep digital files and/or to create databases from files communicated by the Agency or directly downloaded from websites.