French court's copyright infringement decision devastating to intellectual creativity in France

Henri Cartier-Bresson was a French photographer who is considered to be the father of photojournalism. He was a master of candid photography and, in my opinion, the greatest street photographer ever. He coined the expression, “The Decisive Moment,” which has inspired generations of photographers.

I can imagine that Henri Cartier-Bresson is rolling over in his grave over the French Court's ruling that Gered Mankowitz's 1967 portrait of Jimi Hendrix wasn't proved to be an original work of his, because they weren't convinced its originality was the result of choices made by Mr. Mankowitz, despite agreeing that Mr. Mankowitz did indeed make the image.

Here's how the case came to the court. In 2013, a French company, Egotrade, which sells electronic cigarettes, reproduced the portrait of Jimi Hendrix and used it for its advertisements. They replaced Hendrix’s cigarette with one of their own electronic cigarettes. The assignee of Mankovitz’s image rights wasn't asked for permission, or offered compensation.

Mankowitz and Bowstir Ltd, the owner of the rights to the image filed suit in the French courts. On May 21, 2015, the Paris Tribunal de Grande Instance (TGI), a court of first instance, ruled that the Jimi Hendrix photograph could not be protected by French intellectual property law, as it was not proved original.

How they came to that conclusion is both interesting and mind boggling.

Article L. 111-1 of the French Intellectual Property Code provides that “the author of a work of the mind shall enjoy in that work, by the mere fact of its creation, an exclusive intangible property right enforceable against all. This right shall include attributes of intellectual and moral attributes as well as patrimonial attributes.”

Article L. 112-1 further states the law “protects the rights of authors in all works of the mind, whatever their kind, form of expression, merit or purpose.”

But beyond French law, the court took into account EEC (European Economic Community) law. R 16 of Directive 2006/116/EC which states,

“A photographic work within the meaning of the Berne Convention is to be considered original if it is the author's own intellectual creation reflecting his personality, no other criteria such as merit or purpose being taken into account. The protection of other photographs should be left to national law.”

This is the key the French court used.

Gered Mankowitz explained to the court that, “This photograph of Jimi Hendrix, as extraordinary as it is rare, succeeds in capturing a fleeting moment of time, the striking contrast between the lightness of the artist’s smile and the curl of smoke and the darkness and geometric rigor of the rest of the image, created particularly by the lines and angles of the torso and arms. The capture of this unique moment and its enhancement by light, contrasts and the narrow framing of the photograph on the torso and head of Jimi Hendrix reveal the ambivalence and contradictions of this music legend and make the photograph a fascinating work of great beauty which bears the stamp and talent of its author.”

Essentially the court said in its decision to Mankowitz's explanation, “So what.” They said the explanation concerning the image's originally didn't convince them they were “the fruit of the reflection of the author of the photograph.” In fact, they went on to intimate the characteristics delineated could be the “imprint of the personality” of Hendrix, the subject of the image.
Cartier-Bresson once said,

“To take photographs means to recognize simultaneously and within a fraction of a second both the fact itself and the rigorous organization of visually perceived forms that give it meaning. It is putting one's head, one's eye and one's heart on the same axis.”

Clearly France's greatest photographer would have strongly disagreed with the court.
Somehow, the court failed to recognize that the choices a photographer makes with the angles to the subject, the use of lighting, the choices of exposure and focus, the framing, and the overall composition, are all intrinsic to the personality of the photographer and their vision of the final image.

Of course the image is in part the “imprint of the personality” of Hendrix. It wouldn't be a great image if it didn't reflect Hendrix's personality. The thing is, the court doesn't understand what Cartier-Bresson said clearly, that in a great image the personality of the subject and the photographer are inextricably “on the same axis.”

The thing is, that doesn't at all diminish the reality that the image “reflects” the personality of the photographer.

In fact, the decisions photographers use to make every photograph they produce are clearly reflective of their character, their personality, as they are the ones making all the image making choices with their camera.

Therefore the court was wrong in its decision, and needs to rethink their position. If it doesn't, no work of art, no painting, no photograph, no book, no musical piece will be protected from commercial exploitation which will seriously dampen creativity in France, as no artist will be able to earn a living there, with their work devalued to virtually nothing.