Copyright or parasitism: what protection for photos and videos on social media?

The Aix-en-Provence Court of Appeal, in its judgment of September 7, 2023 (No. 19/19256), had the opportunity to rule on the criteria for protecting a work by copyright in the context of a commercial photograph illegally disseminated on the Internet.

We will see in this article that while copyright protection is granted with difficulty and on a case-by-case basis by the courts, economic parasitism could constitute an interesting new legal avenue.

I. The difficult protection of copyrights.

Copyright protects works of the mind, whatever their form of expression, provided they are original.

The originality of works, photos, and videos can be likened to the imprint of the author's personality.

This originality is examined by the courts "_as a whole, considering the combination of the different elements, even commonplace ones, that compose it_" \\ [1\\].

In the case of September 7, 2023, the Court of Appeal upheld the first instance judgment by recognizing the originality of the photograph in question.

The judges identified several elements characterizing the imprint of the author's personality:

- The framing used: the court emphasized the specific composition of the image, with the pans used for glazing and toppings in the foreground. - The management of depth of field: the judges noted that the first pan was slightly blurred to highlight the background. - The capture of a precise moment: the image captured the exact moment when the chocolate flowed in a thin stream from the ice cream stick. - The choice of colors: the court noted that the colors used were all in the same tone. - The management of light: diffuse light was used to create a particular atmosphere.

Furthermore, the court reiterated an important principle of intellectual property law: good faith is irrelevant in matters of infringement.

Thus, even if the defendant argued her good faith, this argument was not retained to dismiss the infringement due to the unauthorized reproduction of the photograph on the Internet and on LinkedIn.

However, this ruling does not reflect the general trend in this area.

Indeed, copyright protection for photographic and video works, particularly on social networks, is often rejected by the courts due to insufficient originality \\ [2\")\\].

A new approach: economic parasitism.

A new avenue recently opened by case law could be interesting for holders of photographic and video works: that of economic parasitism.

As a reminder, economic parasitism refers to a behavior by which a company unduly profits from the efforts, investments, or reputation of another company, without investing itself or providing equivalent efforts.

It is a case of unfair competition, even in the absence of fault, when the parasitic company positions itself in the wake of another to benefit from its successes or innovations, while avoiding the risks or costs associated with the latter's activity.

The Paris Court of Appeal \\ [3\")\\] recently denied copyright protection to photographs due to lack of originality, because

"_the photographer's choices in creating these two shots were necessarily constrained, even if, as a communication professional, she was able to benefit from a certain latitude, her mission being primarily to photograph a professional model_"

Conversely, the court condemned the company that reproduced these photographs without authorization for economic parasitism, in line with several decisions of the judicial courts in this regard.

The judges indeed considered that the appellant company demonstrated "_investments_" for the creation of these photographs through produced account statements, and that the photographs had been used multiple times on its social networks (Pinterest, Instagram).

Consequently, the reproduction of these photographs by the defendant company without authorization and by sparing itself investment efforts _ab initio_, constitutes acts of parasitism, leading to the payment of 8,000 euros in damages.

Therefore, it can be inferred that a company that has invested in creating photographic and video works and can demonstrate it, will have every interest in initiating an action for economic parasitism if these works are reproduced without its authorization in a commercial context.

Infringement may also be invoked, but subject to the complex demonstration of sufficient originality.