Using this case law, the French Court of Cassation ruled in an unprecedented way, in a case that took place on, in which a fashion photographer opposed the artist Peter Klasen, who had used three of his photographs to create some paintings. In recent years, the European Convention on Human Rights had been invoked on several occasions to combat a copyright that is considered to infringe freedom of expression.įor example, in the Ashby Donald and others v France case of 10 January 2013, the European Court of Human Rights considered that ‘freedom of expression being of greater or lesser force depending on the type of speech, distinguishing the situation where the strictly commercial expression of the individual is at stake from that where his participation to a debate affecting the general interest is at stake’, but also recalled that, according to Article 10 of the European Convention, ‘limitations to the freedom of expression are allowed when they are provided by law, justified by the pursuit of a legitimate interest and proportionate to the aim pursued (ie, made necessary in a democratic society)’. Moreover, the judges added that ‘the publication of an obituary implies a certain urgency that can explain the absence of research prior to publication allowing the determination of the author and obtaining his authorisation’. ‘The illustration of the article is in perfect adequacy with its content and only indirectly relates to the protected work since, in reference to the film to which Sylvia Kristel owes most of her notoriety and to the affectionate words of its director, it reproduces the cover of the latter when it was released on DVD, which is emblematic of this link and of the role played by the deceased actress, not as a photograph constituting an original work, but as an element of identification of a film that summarises a career and a friendship.’ The photograph had been reproduced by the newspaper Marie-Claire in an article relating the actress’s death.īefore the courts, the photographer’s claims for infringement were dismissed: ‘with regard to the right of information, with regard to the nature of the publication and the treatment of the news item that it serves in a legitimate logic of informing the public, the absence of real hindrance to the free exploitation of the work, which is in no way devalued by this use.’ In fact, the judges had considered that ‘the infringement of the photographer’s copyright was minimal’. The case concerned a photograph of Dutch actress Sylvia Kristel that was used to promote the movie Emmanuelle. Pierrat & Associates, 31 March 2022, the Judicial Court of Nanterre in France issued a decision according to which ‘in the absence of disproportionate infringement’, the right to inform is more important than the copyright.
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