Case law: Brutal severance of commercial relations

The facts

Between 2016 and 202, the Céline company (luxury clothing and accessories) and a photographer (first in his own name, then through the company he set up in Bulgaria) had an ongoing business relationship. The photographer provides services for Céline (several hundred invoices).

But their relationship deteriorates: due to budgetary pressure on the business, Céline changes the instructions given to the photographer to present the product in a simple, factual and unstylized way. Behavioral drift on the part of an employee of the photographer's company provoked the break-up, and led Céline to indicate in October 2020 that she wished to terminate her collaboration with the photographer's company at the end of a 3-month notice period. And, as the photographer decides to keep his violent employee on the next shoots, and initiates measures of instruction, Céline brings forward the services planned during the notice period in order to leave the relationship with the photographer as soon as possible, and thus ceases all collaboration on November 26, 2020.

The photographer, in his own name and through his company, brought an action against Céline before the Paris Court of First Instance, claiming damages of 2.5 million euros for breach of established commercial relations and infringement of 9,000 photos.

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The decision of the Paris Court of First Instance

1. The judge first examined the brutal severance of commercial relations.

It decides:

- that the photographer in his own name has chosen to cease commercial relations with Celine, in favor of his company, in 2019. That only the stable relationship and the abrupt severance between this company and Celine need to be examined.

- that the stability of the relationship is established by the numerous exchanges of e-mails and invoices from the photographer's company to Céline

- that Céline's failure to respect the 3-month notice period before the end of the commercial relationship could cause financial damage to the photographer in the amount of the 2 months' notice not given

--> He ordered Céline to pay the photographer 26,000 euros in damages for brutal breach of an established commercial relationship.

2. with regard to counterfeiting

Judge:

- Recalls the legal framework, citing the French Intellectual Property Code (art. L111-1, L112-1, L112-2 9° and L113-1), as well as European law in the following terms:

Article 6 of Directive 2006/116/EC of December 12, 2006 states that "photographs which are original in the sense that they are the author's own intellectual creation shall be protected in accordance with Article 1. No other criteria apply to determine whether they are eligible for protection". A photographic work within the meaning of the Berne Convention must be considered original if it is an intellectual creation of the author which reflects his personality, without other criteria, such as value or purpose, being taken into account. The protection of other photographs must be governed by national legislation".

The Court of Justice of the European Union (CJEU, December 1, 2011, aff. C-145/10, Eva-Maria Painer v. Standard VerlagsGmbH ea) has ruled that "a photograph is eligible for copyright protection provided that it is an intellectual creation of its author, which is the case if the author has been able to express his creative abilities during the production of the work by making free and creative choices in various ways and at various times during its production. For example, during the preparatory phase, the author can choose the setting, the pose of the person to be photographed or the lighting. When the portrait is taken, he or she can choose the framing, the angle of view or the atmosphere created. Finally, when it comes to printing the photograph, the photographer can choose which of the various developing techniques he or she wishes to use, or, if necessary, proceed with the use of software. Through these various choices, the author of a portrait photograph is thus able to imprint his or her "personal touch" (point 92 of the decision) on the work created".

- considers that the presentation of items on an e-commerce site against a white background, in particular in compliance with the customer's graphic specifications, "constitute the banal repetition of a common background in fashion clothing and accessories photography, highlighting an object with a white background, light revealing contrasts and sharp framing".

- concludes that these images are not original, and cannot be protected by copyright.

- reminds us that the photographic style implemented by the photographer in application of Céline's instructions is an idea, not protectable by copyright, and that its reproduction by Céline cannot constitute infringement.

--> rejects the photographer's request

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What does this mean?

1. in the case of the sudden termination of an established commercial relationship

It may give rise to damages, but it is necessary to prove

- the stability and continuity of the business relationship

- The brutality of the breakup

- the economic damage resulting from this rupture

2. As for counterfeiting

The judge refuses to classify as original work photographs of objects intended to appear on an e-commerce site.

It is therefore essential to protect oneself by anticipating the future of photographs, and in the event of litigation, by taking action on the grounds of infringement AND economic parasitism for photographs that cannot be protected by copyright.