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Wednesday, 22 November 2017

Damages awarded for the ‘loss of opportunity’ to commercialise photographs following infringement

The Paris Tribunal (Tribunal de Grande Instance) recently handed down a decision on the copyright infringement of a photographer’s work by the fashion textile company Renoma. The judgment is consistent with the recent jurisprudence on the questions of originality, moral rights and infringement of photographic works; nothing special here. What caught this Kat’s interest is the Tribunal’s position on the compensation for the claimant’s ‘loss of opportunity’ to commercialise his own photographs due to the infringement. In an area of law where we already struggle to fix the appropriate level of compensation for the harm due to the violation of economic rights, how should we go about measuring the ‘loss of opportunity’ to commercialise one’s copyright work? Perhaps the honest answer is: no idea. The Tribunal appears to have plucked a sum out of thin air; that or they followed a formula but did not think necessary to share it in their judgment.

Renoma's publicity material for the exhibition
In this dispute, Renoma had used three photographs taken by the claimant, Mr X., in the context of the publicity campaign for an exhibition dedicated to the Chelsea Hotellocated in New York City (see here, here and here). The three photographs had been reproduced on Renoma’s social media accounts, official blog, online invitations to the event and in the exhibition itself. One of the photographs also featured a derivative work created by the defendant, namely as it was integrated into the reflection of a model’s sunglasses as photographed. In addition, the claimant’s photographs had been reprinted on t-shirts, which were subsequently sold on the premises of the exhibition.

The credits associated with the photograph were also problematic because the copies mentioned the name of yet another artist (Mr. Y in the decision) reading: ‘photo credits: Mr Y’ and ‘artistic creation: Mr Y’.

In its judgment, the Paris Tribunal confirmed the originality of each photograph, both citing to and directly quoting from the Painer decision of the ECJ (see here), which held that

a photograph [in that case a portrait] is an intellectual creation of the author reflecting his personality and expressing his free and creative choices in the production of that photograph’ 

This is consistent with the jurisprudence emanating recently from first instance decisions (see for example the Hendrix case, here).

Chelsea Hotel in NYC
The judges were then asked to rule that Renoma had committed a breach of the claimant’s moral rights of integrity and paternity pursuant to Article L 121-1 of the French Intellectual Property Code. As a result, the defendant was ordered to pay 13,425 euros in damages for the infringement of the claimant’s economic and moral rights.

To reach this amount, the Tribunal referred to the standard royalty fees used by photographers’ societies (such as ADAGP), focusing on the number of days that the photographs were available online and the sum the photographer would have received had there been an agreement with the defendant. To establish this number, the judges applied a weight factor of 50% on account of the defendant not seeking the consent of the artist in the first place, yielding the amount of 13, 425 euros. This total is considerably lower than the amount requested by Mr X (no less than 35,381.50 euros), which had been met by Renoma’s claim that it was liable only for  340 euros (based on a price quote provided  to them by Getty Images).

Over several paragraphs, the judgment gives a detailed account of the calculations put forward by each party, before giving its own calculation.   However, the court is surprisingly brief in explaining how it reached the award of compensation for the claimant’s ‘loss of opportunity’ to commercialise the photographs.

On this point, the Tribunal merely states:

‘the photographs of [the claimant] have been widely reproduced and made available to the public without his consent, he is indeed in a position to argue that he suffered a loss of opportunity to hope to sell the original prints of the photographs since he is a professional photographer and has taken part in a number of exhibitions showcasing his work. Consequently, [the claimant] is able to request compensation for this damage, the latter being distinct from the actual opportunity if it had materialised. As a result, the Court grants [the claimant] a sum which ought to amount to 2,000 euros for the loss of opportunity …’.

Author’s rights now cover actual economic loss, moral prejudice as well as ‘the loss of opportunity to hope to sell’ one’s work. To those who dare say that the world is bereft of hope-- wrong. Hope is still alive and even may give grounds for damages under French copyright law. That said, this privilege seems to be reserved to professional photographers only, if we are to read the latter part of this sentence (that is, ‘since he is a professional photographer’) as a requirement for this type of compensation.
Not buying this...

Finally, it should be noted the phrase ‘loss of opportunity to hope to sell’ could also be translated ‘loss of opportunity to be able to hope to sell’, following a literal translation of the original text which reads ‘celui-ci peut en effet se prévaloir d’une perte de chance de pouvoir espérer vendre des tirages originaux de ces photographies’. This second translation, though convoluted, may be truer (and arguably more romantic!) to the meaning intended by the Tribunal with this choice of words.

Decision commented: Paris Tribunal, 3rd chamber, 2nd section, judgment of the 22nd of September 2017: Mr. X. v Mr. Y., Société Textile des Articles Renoma and Renoma Invest (see here for decision in French).

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