Does a French copyright smell anything?

The FIAC, the international fair of contemporary art, took place in october in Paris. Its visitors were able to visit a glass cube, the OSNI, placed on top of the Pavilion of the Palais de Tokyo. OSNI stands for Objet Sentant Non Identifié, ‘Unidentified Scented Object’ and was created by Mathilde Laurent, a perfumer for Cartier, along with Munich climate engineers Transsolar.

Visitors entering the cube were able to go up a staircase through a cloud of the Cartier L’Envol (The Flight) perfume. The cloud is clearly seen to viewers outside OSNI. The fact that the perfume can be seen is as important as it can be smelled.

This installation led French magazine Télérama to ask the question: can perfume be a work of art? Modernist called it “[a] true olfactory and immersive artistic work that presents a completely new way of using smell as a medium of creation.

Wallpaper quotes Mathilde Laurent as saying “I’m not an artist…but…I feel that to create a piece like this is our duty as a house because it’s important that we sustain olfactory art like all others.”

Could OSNI be a work of art? Is there such thing as olfactory art?

Perfume is not protected by French copyright.

Even though article L.112-1 of the Intellectual Property Code clearly provides that its provisions “ protect the rights of authors on all works of the mind, regardless of genre, form of expression, merit or destination,” perfumes are not protected by French copyright, the droit d’auteur. The Cour de Cassation, France’s highest civil court, ruled in 2008 that “the fragrance of a perfume, which proceeds from the simple implementation of a know-how, does not constitute the creation of a form of expression that can benefit from the protection of copyright”. Therefore, L’Envol is not protected by copyright.

However, OSNI is way more than a perfume. It is an art installation, with which visitors are interacting.

Does France protect performance art?

OSNI’s visitors were able to go up and down the staircase inside the cube, and were seen from outside. Were they part of the performance? Were their reactions to the scented air part of the performance?

France recognizes that an artistic performance may be protected, not by copyright law, however, but by the right in one’s image. Reproductions of an artistic performance, such as photographs taken of it, are, however, protected by the droit d’auteur. In that case the performance artist and the photographer are co-authors, Paris Court of Appeals, 4th Chamber B, December 3, 2004.

Is the perfume an element of the protected work, the cube?

If perfume can not be protected as a scent, could it be protected as a work of art? The perfume is clearly seen here, and can be smelled only if one is inside OSNI. Viewers from outside cannot smell it, but they can see the way the cloud of perfume moves inside the cube.

The cube can be considered a sculpture, and, as such, protected by the droit d’auteur. The scent is part of it and thus protected as an element of the sculpture, but still does not gain individual protection. However, one could imagine that if Cartier were to sell OSNI to an art collector, who would then replace the scent with the one of his favorite aftershave, this would be copyright and droit moral infringement, and would conjure the issue of whether perfume is protected by the droit d’auteur out of the (crystal) bottle.

This post was first published on the 1709 Blog.

Paris Court Denies Copyright Protection to Jimi Hendrix Photograph

Gered Mankowitz is a British photographer who photographed many famous musicians such as Mick Jagger and Annie Lennox. He took several photographs of Jimi Hendrix in 1967. One of these photographs represents the musician, wearing a military jacket, holding a cigarette and puffing a cloud of smoke while looking at the photographer. An original print recently sold at auction for £2,750.

This photograph was used without authorization in 2013 for an advertising campaign by Egotrade, a French electronic cigarette company. The ad showed Jimi Hendrix holding an electronic cigarette and the “Egotabaco” brand was printed on the ad.


Gered Mankowitz and Bowstir Ltd, the company to which Mr. Mankowitz has assigned his patrimonial rights to the photography, filed suit in France. Bowstir claimed copyright infringement and Mr. Mankowitz claimed droit moral infringement. On May 21, the Paris Tribunal de Grande Instance (TGI), a court of first instance, ruled that the Jimi Hendrix photograph could not be protected by French intellectual property law, as it was not original.

French intellectual property law does not provide a definition of “originality.” Article L. 111-1 of the French Intellectual Property Code provides that “[t]he author of a work of the mind shall enjoy in that work, by the mere fact of its creation, an exclusive intangible property right enforceable against all. This right shall include attributes of intellectual and moral attributes as well as patrimonial attributes.” Article L. 112-1 specifies that the law “protects the rights of authors in all works of the mind, whatever their kind, form of expression, merit or purpose.”

The TGI cited the European Court of Justice (ECJ) Eva Maria Painer. v. Standard Verlags case, where the Court had discussed the originality of a picture taken by a school photographer. For the ECJ, which the TGI cited verbatim,

“[a]s stated in recital 17 in the preamble to Directive 93/98, an intellectual creation is an author’s own if it reflects 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. … As regards a portrait photograph, the photographer can make free and creative choices in several ways and at various points in its production. In the preparation phase, the photographer can choose the background, the subject’s pose and the lightening. When taking a portrait phoograph, he can choose the framing, the angle of view and the atmosphere created. Finally, when selecting the snapshot, the photographer may choose from a variety of developing techniques the ones he wishes to adopt or, where appropriate, use computer software. By making those various choices, the author of a portrait photograph can stamp the work created with his ‘personal touch’” (ECJ 88-92).

Indeed, Recital 17 of Directive 93/98/EEC states that a photograph is original “if it is the author’s own intellectual creation reflecting his personality, no other criteria such as merit or purpose being taken into account.” Article 6 of the same Directive states that photographs are original if “they are the author’s own intellectual creation.” This directive was repealed by Directive 2006/116/EC, of which Recital 16 reprises the same words than Recital 17.

The TGI then examined the Jimi Hendrix photograph. Gered Mankowitz had explained to the court that

this photograph of Jimi Hendrix, as extraordinary as it is rare, succeeds in capturing a fleeting moment of time, the striking contrast between the lightness of the artist’s smile and the curl of smoke and the darkness and geometric rigor of the rest of the image, created particularly by the lines and angles of the torso and arms. The capture of this unique moment and its enhancement by light, contrasts and the narrow framing of the photograph on the torso and head of Jimi Hendrix reveal the ambivalence and contradictions of this music legend and make the photograph a fascinating work of great beauty which bears the stamp and talent of its author.”

This argument did not convince the TGI as Mr. Mankowitz,

as doing so, satisfied himself by highlighting the aesthetic characteristics of the photography which are distinct from its originality which is indifferent to the merit of the work, and does not explain who the author of the choices made regarding the pose of the subject, his costume and his general attitude. Also, nothing [in this argument] allows the judge and the defendants to understand if these elements, which are essential criteria in assessing the original features claimed, that is, the framing, the use of black and white, the light decor meant to highlight the subject, and the lighting being themselves typical fora portrait photography showing the subject facing, with his waist forward, are the fruit of the reflection of the author of the photograph or the subject, and if the work bears the imprint of the personality of Mr. Mankowitz or of Jimi Hendrix.”

Since the judges are therefore not able to appreciate whether this photograph is indeed original, the TGI ruled hat the photography lacked the originality necessary for its protection by French law, and that “the failure of the description of the characteristic elements of the alleged originality also constitutes a violation of the principle of defense rights.” The TGI thus concluded that Mr. Mankowitz had no intellectual property rights over the photograph.

By doing so, the TGI did not deny that this particular photography of Jimi Hendrix is not original. Rather, the court was not convinced that originality of the work was the result of choices made by Mr. Mankowitz. This case is less about what is an original work than how to prove that a work is indeed original.

As such, this ruling should give pause to French IP practitioners defending the rights of a photographer, as they must now prove why the author chose the different elements of a photograph and how these choices reflect his personality in such a way that the work is original. However, the case will be appealed, and so the debate on what is an original work, and how to prove, it is still ongoing in France.


Image is courtesy of Flickr user SarahElizabethC under a CC BY-ND 2.0 license.

This post was originally  published on The 1709 Blog.

You Stole My Ideas! (Not)

Here is a recent case about how difficult it is to prove that a third party used one’s ideas without permission and also about how important it is for an author to keep a paper trail of his creative process.

The case is Gerald Morawski v. Lightstorm Entertainment Inc. et al., US Central District of California, (case No. 2:11-cv-10294).

Gerald Morawski is a visual effect consultant who first met film director James Cameron in 1991 as Mr. Cameron was interested in some of Mr. Morawski’s works. Mr. Morawski signed later on a Confidentiality and Non-Disclosure Agreement with Lightstorm Entertainment, a production company headed by Mr. Cameron. Under its terms, Mr. Morawski’s ideas and his responses to Lightstorm would be Lightstorm’s exclusive property. However, Mr. Morawski’s original ideas and artworks created by him which were not derived from Lightstorm’s material would remain his exclusive property.

Later on, Mr. Morawski pitched to Lightstorm an idea for a film, Guardians of Eden, but the project did not go through. After Mr. Cameron wrote and directed the very popular Avatar movie, Mr. Morawski filed suit against Lightstorm and James Cameron, arguing that they had used his original ideas in Avatar, identifiying 19 similarities in the Guardians of Eden story and in Avatar, and claiming that therefore the defendants had breached the Agreement.

However, Mr. Morawski was unsuccessful in proving his claim, and on January 31, 2013, Judge Margaret Morrow from the Central District Court of California granted summary judgment in favor of the defendants.

Ideas are not Protected by Copyright

Ideas are not protectable by copyright. § 102(b) of the 1976 Copyright Act states that “[i]n no case does copyright protection for an original work of authorship extend to any idea… regardless of the form in which it is described, explained, illustrated, or embodied in such work.“

The Doctrine of Independent Creation

However, ideas may be protected by contract, either express or implied, and that it is what Mr. Morawski was arguing in this case, albeit unsuccessfully. In order to be successful in his claim, Mr. Morawski had to prove that defendants had used his intellectual property without permission.

The fact that plaintiff’s ideas and defendant’s work were similar created an inference that the defendant had used plaintiff’s ideas, as the defendant had indeed “received” plaintiff’s ideas. However, under the doctrine of independent creation, this inference could be dispelled if the defendant could prove independent creation.

In this case, while there was indeed similarities between Mr. Morwaski’s ideas and Avatar, Mr. Cameron successfully proved that he independently created the successful movie. The Court reviewed some of the defendant’s prior works, including projects, unproduced works, and drafts, where some of the themes, characters and plots later developed in Avatar appeared, before Mr. Cameron had access to Mr. Morawski’s ideas.

Also, defendants pointed out that several of the ideas and themes in Avatar stemmed from history or commonly used themes. For instance, the romance between the main character Jake Sully, a human being, and Neytiri, a creature indigenous to the planet Pandora where the action takes place, was a variation of a Romeo and Juliette type love story between a colonizer and a native such as, for example, the story of Pocahontas. The Court cited a 1984 California case, Klekas v. EMI Films, where the court noted that “there are a limited number of ideas and themes available for use in literary material, and, therefore, those ideas and themes are shared by all literature.”

Even if the works were similar, and defendant had access to plaintiff’s work before actually creating Avatar, no inference of copying could be drawn as Mr. Cameron owned prior works containing the same elements.

Indeed, ideas are rarely entirely original and novel. Also, even original ideas may have stemmed independently from two different creative minds. Some of the take-aways from this case is that it is a good idea  for artists to have a paper trail of their creation process, and to archive all of these documents.

Photographs Uploaded on Social Media Sites Protected By Copyright

Social media sites allow their users to easily upload images online, and using a digital photograph posted on a social media site can be done by a few clicks. However, an image posted on a social media site is more likely than not protected by copyright, and thus cannot be reproduced without permission of the copyright owner.

Here is a recent interesting case on the topic.

Daniel Morel, a professional photographer, was in the city of Port au Prince in Haiti on January 12, 2010, the day of the earthquake. He took numerous photographs of the disaster, and was able to post them the same day from his Twitter account, using Twitpic, one of Twitter’s third-party applications. Twitpic’s Terms of Use provided then, and still do, that users give Twitpic permission to use or distribute their photos on or on affiliated sites, but that the owners of the uploaded images retained their copyright.

Not long after the images were posted, they were allegedly reposted to the Twitter account of Lisandro Suero, who allegedly tweeted that he took these photographs and that they were available for licensing. The Agence France Presse (AFP) then used them and also transmitted them to Getty, which holds the exclusive rights to market AFP’s images in North America. The photographs were subsequently licensed to several newspapers and networks.

The AFP sought a declaratory judgment that it did not infringe Daniel Morel’s copyrights in these photographs. Morel counterclaimed alleging, inter alia, copyright violation. Morel brought similar third-party claims against Getty.

The AFP and Getty filed a motion to dismiss Morel’s counterclaim, which was denied in part in January 2011 by the Southern District of New York, (Agence Fr. Presse v. Morel, 769 F. Supp. 2d 295, (S.D.N.Y. 2011).

Judge Alison J. Nathan of the Southern District of New York (SDNY) ruled last week that the AFP and other news organizations did not have the right to use these photographs without Morel’s permission.

License or Not?

A license is an affirmative defense to a copyright claim, and the AFP was arguing that when Morel posted his photos on Twitter through TwitPic, he subjected them to the terms of service governing content posted to these two websites, and that these terms of service provided the AFP with a license.

The Twitpic login page warned users that it operated under Twitter’s Terms of Service, which provided that users grant Twitter “a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute…[content uploaded on the site] in any and all media or distribution methods.” Judge Pauley from the SDNY had concluded in 2011 that the express language of the Twitter and TwitPic TOS did not provide an express license that covered AFP.

Judge Nathan noted last week that the AFP “wholly ignore[d] those portions of the Twitter TOS that are directly contrary to its position, particularly those portions stating that “[y]ou retain your rights to any Content you submit, post or display” and “what’s yours is yours – you own your content,””and noting that “[t]hese statements would have no meaning if the Twitter TOS allowed third parties to remove the content from Twitter and license it to others without the consent of the copyright holder.” She also reasoned that, because Twitter’s Guidelines state several times that content should not be disassociated from the Tweets in which they occur, AFP’s removal from Twitter and the commercial licensing of Morel’s photos-“is not akin to the rebroadcast of a Tweet.”

RT and Copyright

The AFP had argued that either its conduct had been licensed under the TOS, or that “the uncountable number of daily ‘re-tweets’ on Twitter and in the media where Twitter/TwitPic posts are copied, reprinted, quoted, and rebroadcast by third parties, all could constitute copyright infringements.” Judge Nathan was not convinced by this argument, calling it a “false dichotomy” and stating that “a license for one use does not equate to a license for all uses” and she concluded that the AFP was not entitled to summary judgment on the license issue.

Authors do not lose their intellectual property rights when uploading their works on social media sites.

Agence France Presse v. Morel, U.S. District Court for the Southern District of New York, No. 10-02730.