„The creator enjoys the right to respect of his name” (Article L121-1 of the French Intellectual Property Code). In the area of photography this means that the photographer’s name must be displayed next to the picture he or she has taken, in order to be recognised as the author of the work.
As a result, websites have come up with imaginative solutions to this requirement, which are not always to the judges’ tastes.
1. The solutions found are imaginative but make it difficult to define the notion of proximity between the photographer’s name and the photograph.
So-called “grouped citations” which can be found at the end of a book or bottom of a website do not allow the photographer and the photograph taken by him or her to be associated with certainty and therefore are not permitted[1]. The name of the photographer of every image on the website must be displayed clearly and accessibly to every user and placed in “immediate proximity” to the image.
1.1. Valid methods of attribution approved by the courts
a. Mention of the photographer’s name directly below the photograph
This solution consists of mentioning the photographer’s name directly below the photograph and is a simple way of responding to the legal and jurisprudential requirements. The photographer’s name must however be legible i.e. not written in too small characters.
If the photographs are provided by an agency, the photographer’s name must be mentioned, even though the agency’s name has already been mentioned (judgement 26th June 1985)[2].
It is advisable in any case to mention the agency the photograph is linked to, as they manage the rights related to the image. Nevertheless, this mention must be distinct from the mention of the photographer’s name.
b. The use of tooltips
It is also possible to include the photographer’s name at the bottom of the page on which the relevant photograph is depicted – at a reasonable distance (we will returm to this point later on). One can also resort to tooltips which have been judged sufficient in attributing the photographer’s rights by the French courts. In using this technique, the user hovers the mouse pointer over the image depicted on screen and the photographer’s name will automatically pop up. However, this solution is not perfect, because the photographer’s name only appears if the mouse cursor hovers directly over the picture for several seconds. Otherwise the user can simply scroll through the website without being informed of the photographer’s identity. This solution, so recently encouraged by the courts appears to us to be questionable.
1.2. The difficulties linked to the absence of a definition of the “immediate proximity” requirement
Considering the absence of a definition of the proximity requirement, many solutions considered by website operators have been uncertain. Affixing the photographer’s name to the bottom of a web page has been accepted, as has previously, the mention of the name in a bibliography[3].
On the other hand, nothing suggests that placing the photographer’s name in the legal notice section qualifies as being in “immediate proximity”. Each web page is presumed to be independent from the others and therefore, placing the photographer’s name in the legal notice section would open a new tab with the photographer’s name. As a result, the proximity requirement needed i.e. the photograph and the photographer’s name being on the same page, would not be fulfilled.
2. Sanctions for not respecting the photographer’s right to attribution
It is widely accepted that failure to mention the photographer’s name when replicating their work even when the number of images is only limited, causes a damage to the photographer which must be repaired[4].
In cases relating to the violation of copyright laws, the photographer has two legal options available. Either he decides to claim in front of a civil court. The infringement, if found, will generally give way to:
- Removal of the relevant images usually within three months, followed by a fine of 100EUR for each additional day the image(s) has not been removed (the presumption being that the images are deleted both from the database and also the website) from the day of the judgement;
- Payment of damages: the damage is generally estimated taking into account the number of photographs, the number of people likely to have accessed the website and the timespan during which the copyright infringement occurred (for example 5.000 EUR were paid in a case where 123 photographs were displayed without the photographer’s name being attributed);
- The party infringing copyright laws having to pay procedural damages in accordance with
Art. 700 of the Civil Procedure code and legal costs generally between 2.000 and 6.000EUR.
Or, he goes in front of a criminal court. This claim presupposes an intention to cause harm. In a case where the photographer’s name is mentioned, but in the wrong place this claim will certainly be excluded. In applying article L.335-2 CPI, the infringement, if confirmed, will give way to:
- Penal sanctions including up to three years of imprisonment
- A fine of up to 300,000EUR and where applicable,
- The confiscation of earnings made in the time frame of the copyright infringement
In summary, the matter of crediting the photographer is one that consistently evolves and worth following.
[1] See Paris, 18th February 1988 – Cahiers du droit d’auteur, May 1988, page 23.
[2] See Tribunal de grande instance Paris, 6th of June 2008 and 26th of September 2007.
[3] See Versailles, 28 avril 1988.
[4] See Civ. 1ère du 3 avril 2007.