Hendrix photographer welcomes Paris Court of Appeal decision

In May 2015, the Paris Tribunal de Grand Instance (TGI) made a controversial decision in a copyright case that shocked experts and photographers alike. The case concerned a portrait photograph of infamous rock star, Jimi Hendrix, taken by photographer Gered Mankowitz. In the portrait, Hendrix is facing forwards with a cigarette in hand and exhaling smoke with a slight smile on his face.

The portrait was adapted in 2015 by an electronic cigarette company who altered and reproduced the photograph to make it look like Hendrix was smoking an electronic cigarette. Unhappy with the commercial unauthorised use made of the portrait, Mankowitz decided to sue the electronic cigarette company for copyright infringement.

When the case made its way to the TGI many were shocked at the court's interpretation of the originality criteria, which must be satisfied in order for copyright to subsist in a work. The Court was not satisfied that the Claimants had shown that the work was the result of the creative choices and  "personal touch" of the photographer, stating that it was not clear whether the work reflected the personality of the photographer or of Hendirx himself. In coming to this decision the court "interpreted the originality criterion as being based upon artistic merits" wrote Sabine Jaques for 1709 Blog.

Following the decision of the TGI the case made its way to the Paris Court of Appeal which overturned the decision, finding that copyright subsisted in the photograph and that it had subsequently been infringed by the electronic cigarette company. In coming to its decision, the Court of Appeal noted that the burden of proof in respect of originality lies with the person claiming to have copyright protection.

The case is an interesting development in the European harmonisation of copyright law, specifically in respect of photographic works.

If you have any questions on the above, please do not hesitate to contact the team at McDaniel & Co. on 0192 281 4000 or legal@mcdanielslaw.com.