Photography Protection: French Law vs. German Law

In France, it is difficult to protect a photograph under copyright law due to the originality requirement. In Germany, however, photographs are protected in all cases. Legal proceedings to enforce these rights can be daunting for infringers.

Under French law: photographs are protected by copyright… provided they meet the originality requirement

Under French law, photographs are protected exclusively by copyright (Article L.111-1 of the Intellectual Property Code), provided they are original.

👉 Originality is defined as the imprint of the author’s personality. This results from free and creative choices, such as framing, lighting, angle, composition, and the moment the photograph is taken.

⚠️ In practice, this criterion is flexible and a source of legal uncertainty:

• Not all photographs are automatically protected.

• The burden of proof regarding originality rests with the photographer.

• Courts assess originality on a case-by-case basis.

The Court of Cassation grants protection whenever the judge identifies choices that reflect the author’s personality. Thus, set photographs have been recognized as original due to an aesthetic approach and the personal imprint of their author (CA Paris, February 3, 2017, No. 16/03301). Conversely, many decisions deny protection when the photograph is deemed purely technical or documentary. For example, a photograph of a castle taken during a reception, captured spontaneously without technical or logistical preparation, is deemed to lack originality (CA Bordeaux, February 1, 2022, No. 19/00984). Similarly, culinary photographs whose aesthetic choices correspond to conventions commonly practiced in the field are not protected (Nancy Regional Court, April 23, 2025, No. 22/01318).

👉 In the event of infringement, the procedural tools offer little incentive:

• A formal notice is required to put an end to unlawful uses. However, seeking an injunction is not recommended. The defendant may argue that the photograph lacks protection, which constitutes a serious substantive issue, hindering the intervention of the judge in summary proceedings.

• A full-fledged lawsuit, which is lengthy and costly, is rarely pursued in practice.

➡️ Result: strong protection in theory, but difficult to enforce in practice.

In German law: the specific category of Lichtbilder (simple photographs)

German law takes a more protective approach. In addition to Lichtbildwerke (original photographs), German law recognizes a separate category: Lichtbilder (§ 72 UrhG).

🔹 Lichtbilder cover all photographs, including everyday snapshots or photographs of objects (LG Bielefeld, March 18, 2009, 4O85/08), even if they lack marked artistic originality.

🔹 Protection is granted for a term of 50 years from publication or, failing that, from creation.

§ 72 UrhG:

• Protection applies to any image resulting from a photographic or similar process.

• It does not matter whether the photograph is digital, unprinted, or not fixed on a medium.

• Images extracted from films may also be protected, provided they result from a genuine process of “abbildung” (representation).

👉 This “neighboring” protection avoids the systematic debate over originality and offers increased legal certainty to photographers.

Procedures in Case of Rights Infringement

In the event of a rights infringement, the photographer may issue an “Abmahnung” (out-of-court warning), accompanied by an “Unterlassungserklärung” (cease-and-desist declaration). This declaration contractually obligates the infringer to cease the infringement, subject to a penalty clause. Its signature allows for the avoidance of legal proceedings.

If the cease-and-desist declaration is not signed, the photographer may file a claim with a German court to obtain a preliminary injunction (einstweilige Verfügung). If the infringement is established, the court orders the user to cease the infringement, subject to a penalty payment, without summoning the user. Court and attorney fees, which are particularly high in Germany, can then no longer be avoided by the defendant. The judge can be asked to rule on the merits of the case fairly quickly to also award damages.

In practice, refusing to sign therefore exposes the infringer to significantly higher legal costs and a loss of control over the terms of the obligation (scope, penalty), which are now set by the judge. It also compels them to cease all use under penalty of fines.

Conclusion

If you have questions regarding German copyright law, Mars-IP is here to help. We offer in-depth Franco-German expertise in intellectual property, data, and digital law. Our legal support is bilingual and intercultural, designed for companies and creators with international operations, particularly those with Franco-German activities. Whether you are aiming to expand into the German-speaking market or are facing cross-border litigation, our mission is to protect and defend your creations and innovations throughout Europe and beyond.

For more information, please feel free to contact us!