NEWS

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18-12-2018

 

Participation in a photo session does not imply authorization to use the image

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In a judgment of November 21, 2018, the Paris tribunal de grande instance ruled that the participation of a person in a photo session does not constitute implicit authorization to use their image on multiple media._cc781905-5cde-3194 -bb3b-136bad5cf58d_

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In this case, the plaintiff had worked occasionally as a model for a company specializing in the sale of ready-to-wear clothing. She then entered into a permanent employment contract with this company, but in assistant in graphic design and communication. After the conclusion of her employment contract, she continued to pose during photo shoots for the company.

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The company exploited the plaintiff's image on multiple media, namely its  online sales catalog and in print, on its website and on its social networks. The plaintiff seized the tribunal de grande instance because of this massive exploitation of her image, to which she considers that she did not consent. 

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First of all, the court recalls that in accordance with article 9 of the civil code and article 8 of the European convention for the protection of human rights and fundamental freedoms, any person , regardless of its notoriety, has an exclusive right over its image and the use made of it, which allows it to oppose its distribution without its authorization.

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The court then asserts that it is up to the defendant company, exploiting the image, to prove that the use made of the plaintiff's image complies with the authorization given to it, that "_cc781905-5cde- 3194-bb3b-136bad5cf58d_permission either explicit or implicit ". 

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In this case, the court finds that no contract authorizing the company to exploit the plaintiff's image has been concluded. The employment contract did not in fact provide for any stipulation on the use of the plaintiff's image.

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The court also considers that it has not been demonstrated either that the plaintiff would have implicitly consented to the use of her image on the various media in question. In particular, the court considers that it cannot be deduced from the plaintiff's agreement to participate in photography sessions, his authorization to the use of his image on any medium and for an unlimited period by the company. Indeed, the court finds that :

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"  the company does not demonstrate that implicitly, Mrs. X. would have given her agreement to the use of her image on the multiple media in question, the simple fact of accepting photo sessions n not implying such an agreement; that moreover, an authorization, unlimited in time, on any medium, being an attribute of personality and taking into account the rules governing contract law, would not be valid » .

This is a solution in line with current case law. 

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Indeed, in a recent judgment of April 11, the Paris Court of Appeal considered that it could not be deduced from the plaintiff's agreement to be filmed, his authorization to use his image_cc781905-5cde- 3194-bb3b-136bad5cf58d_for external use: "  it cannot be retained, by the attitude of the hairdresser in front of the camera, that he gave implicit authorization or that he necessarily knew that these videos were intended for external distribution ».

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Thus, even though the judges affirm that the authorization to use the image can only be implicit, they refuse, moreover, to deduce this authorization from the agreement given by the person to be photographed or filmed. However, if accepting to be photographed or filmed cannot be worth implicit authorization to use the image, in what concrete situation is it possible to deduce such implicit authorization to use the image_cc781905-5cde-3194-bb3b -136bad5cf58d_? 

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Could the judges' assertion that the authorization to use the image can only be implicit become purely theoretical ?

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In this case, the disputed images were exploited in a particularly massive way, on multiple media. The Court indeed underlines in the judgment of November 21 that "  the plaintiff claims to have been traumatized by the large-scale distribution of her image ". Is it this multiplicity of exploitation media that led the judges to consider that the simple fact of agreeing to be photographed does not constitute implicit authorization to exploit the image on a large scale_cc781905-5cde-3194-bb3b- 136bad5cf58d_? Is it appropriate to deduce that if the company had limited its use of the photographs to the only online sales catalog, for example, the judges' solution could have been different.

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We can doubt it. Indeed, the study of current case law attests to a desire for increased protection of the fundamental right that is the right to the image. This is further evidenced by a judgment of November 16, in which the Paris TGI ruled that there was an infringement of the right to the image " peu import[ant] that the plaintiff's face is " flouté " or not on the day of the hearing, as soon as the rest of his body, an attribute of image rights appears_cc781905-5cde-3194- bb3b-136bad5cf58d_”. In addition, the Montpellier Court of Appeal, in a judgment of June 17, 2015, considered that it could not be deduced from the authorization to use the image on the Internet, an authorization to use the image on social networks.

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Thus, it is advisable to be particularly vigilant when one wishes to exploit the image of others, (even if the person would have accepted to be photographed or filmed, or that he would have accepted the exploitation of his image on certain media) and to obtain authorization to use the image of the person concerned, in particular by clearly defining the duration, the territorial scope, the methods and the different media for the use of the image._cc781905-5cde- 3194-bb3b-136bad5cf58d_

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CarolCouson-Warlop, Lawyer, ARTLEX, Nantes 

Morganblow, Lawyer, ARTLEX, Nantes

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#Image rights, implicit authorization, exploitation, infringement, photos, contract, social networks, TGI Paris, case law, right to respect for private life, social networks, Internet