Brussels, 06/12/2011 (Agence Europe) - A portrait photo enjoys identical protection to that conferred by copyright on any other work. However, the media may publish such a photograph, without the consent of its author, if the object of its publication is to assist the police in a criminal investigation to find a missing person.
This judgement was delivered on Thursday 1 December by the EU Court of Justice in Case C-145/10, in response to the Handelsgericht Wien (Vienna Commercial Court), which was called upon to rule on the complaint filed by Ms Painer, a freelance photographer, who had taken several photos of a ten-year old girl in a school. The girl was kidnapped in 1998 and the photos had been used by the police in their search. Following the young girl's escape, in 2006, and prior to her first public appearance, five newspaper publishers published those photographs in certain newspapers and known websites without, however, indicating that Ms Painer was the photographer. Several of the newspapers also published a photo-fit, created by computer from those photographs, but without the author's consent and without her name being cited, and also without payment of appropriate remuneration or damages. The Vienna court asked the Court of Justice of the EU: - whether EU law confers inferior copyright protection of portrait photographs because they are “realistic images” and the degree of artistic freedom is limited; - in what conditions, such photographs can be used by the media without the photographer's consent, for the purposes of a criminal investigation. In this case, it calls on the Court to clarify the conditions in which a protected work must, or need not, be quoted.
In its judgment, the Court notes that copyright protects only original subject matter but holds that the author of a portrait photograph can make free and creative choices for the background, the subject's pose, lighting, and techniques used, reflecting the “personal touch” of the photographer. It is therefore to be protected by copyright when it is “the author's own intellectual creation” reflecting “the author's personality”. That is the “case if the author was able to express his creative abilities in the production of the work by making free and creative choices”. Protection is in this case identical to that conferred on other works, including photographic works. The Court deems, moreover, that a newspaper publisher cannot of his own initiative use a work protected by copyright by invoking public security objectives. The publisher's possible contribution to such an objective, with the publication of the photo of the missing person, must come “in the context of action taken by the national authorities and by agreement and in coordination with those authorities”. In the case in hand, the photo may be published by the media and “the Court makes clear that a prior specific, current and express appeal, on the part of the security authorities, for publication of a photograph by the media for the purposes of an investigation is not necessary”. Finally, as regards the quotation of protected works, the Court notes that works which have already been lawfully made available to the public may be quoted, provided that the source, including the author's name, unless that turns out to be impossible, is indicated. (FG/transl.jl)