Photography and applicable law — What are the precautions to take?
Photographs are protected by IP, but under strict conditions only.
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The firm regularly deals with issues related to photography. Whether it is the right to an image of a person, the photography of an architectural property, or intellectual property law, many legal questions arise when the reuse of the image, in particular commercial or at the very least public, is envisaged.
It therefore seemed useful to us to answer the most common questions about the law applicable to photography.
In France, image rights are protected by article 9 of the Civil Code, which states that:
“Everyone has the right to have their privacy respected.”
The concept of privacy includes image rights. This right is not an intellectual property right and belongs to everyone, who is free to authorize its use free of charge or for a fee.
Any image related to a current event can be used without requiring the permission of the person being photographed. This is about balancing the right to privacy and the right to information.
The same goes for images of public persons, in the exercise of their functions.
It is also not necessary to obtain permission from the person being photographed when the person is in a crowd or is not the main subject of the photograph. What really matters is the fact that the person cannot be recognized or that they are not isolated.
However, do not crop the photograph or extract a person from the crowd. In this case, it would become the object of the photograph and it would be necessary to obtain his agreement.
All of these exceptions are only for cases where the photographs are taken in a public place (unless they show a private scene) and are not exploited for commercial purposes.
It is necessary to ask for permission from the person in the photograph if the photograph is taken in a private location.
The same goes for anyone who appears in an isolated and recognizable way in a photograph, whether taken in a public or private place.
Any use of a photograph of a minor must also be authorized by the parents, even if the photograph is taken in the middle of a crowd.
Finally, any commercial exploitation of an image requires the authorization of the person who appears on it.
Architectural works are protected by copyright, pursuant to articles L.112-3 and L.122-3, paragraph 3, provided they are original.
The copyright belongs to the architects.
However, this right should be limited to cases where the works are the main subject of the photograph. If the architectural work is in the background, the theory of the accessory means that it is not necessary to seek permission to use it, including commercially.
Consequently, any photograph of the architectural property is considered a forgery, in the absence of permission from the architect, if the architectural work is the main object of the photograph.
However, the law on digital technology has adopted an exception to this right, called the “panorama” exception. It is now possible to photograph an architectural property as long as it is not commercially exploited.
If the work is central to the photograph, it is necessary to request permission to use it.
The owner of a property also has rights to the image of his property, pursuant to article 544 of the Civil Code. This right is different from copyright in that it concerns all goods, regardless of whether the property is original enough to justify copyright or not.
However, he can only oppose the use of the image if it causes him an abnormal violation of his right of use.
In practice, if his property only appears in the background, it will be difficult for the owner to oppose it. However, if the property appears centrally in the photograph, it is preferable to obtain permission to use it.
Attention, in some cities (for example in Paris) the authorities have provided for specific procedures.
For example, we had already addressed the subject for dishes in restaurants.
If the photographs include the works of a third party (other photographs, paintings, artistic installations), it will be necessary to obtain the authorization of this third party before any dissemination, especially if it is for profit.
Do not hesitate if you have questions relating to a specific situation, the firm will be able to assist you in obtaining the necessary authorizations.
To go further:
https://www.cnil.fr/fr/lutilisation-de-limage-des-personnes-0
http://www.nextinpact.com/news/100481-loi-numerique-liberte-panorama-limitee-mais-consacree.htm
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