Right to photograph public and private buildings

Having recently had the pleasure of chatting with one of our members on this subject, I'm taking advantage of the return to school and the last few fine days, which might make you want to photograph some of France's most renowned architectural beauties:

1. Public buildings

The supreme courts, the Conseil d'Etat and the Cour de cassation, have long held that the taking of photographs of buildings in the public domain is not subject to an authorization requirement: "The administrative authority cannot, in the absence of a legislative provision to this effect, subject the use for commercial purposes of photographs of a building belonging to the public domain to a system of prior authorization, such a system constituting a restriction on freedom of enterprise and the exercise of the right of ownership".

But the legislator intervened by completing the Heritage Code

Under article L. 621-34 of the French Heritage Code :

"National estates are real-estate complexes with an exceptional link to the history of the Nation, and which are at least partly owned by the State. These properties are intended to be preserved and restored by the State in keeping with their historical, artistic, landscape and ecological character". Paragraph 3 of article L. 621-42 stipulates that "a decree of the Conseil d'Etat shall define the terms and conditions of application of the present article".

And according to article L. 621-42 of the French Heritage Code:

"The use for commercial purposes of the image of the buildings that make up the national domains, on any medium, is subject to the prior authorization of the manager of the relevant part of the national domain. This authorization may take the form of a unilateral act or a contract, with or without financial conditions".

Article R. 621-98, after identifying 6, then 11, now lists 16, which you can find here:

2. The public domain

The public domain comprises property belonging to a public entity (State, local authority, public establishment) and assigned either for direct public use, or for a public service if they are subject to essential development for this purpose (article L. 2111-1 of the Code général de la propriété des personnes publiques).

This is the case for town halls, public museums, community halls, public structures and facilities (fountains, bridges, roads, etc.).

In the Conseil d'Etat's view, public bodies have no " exclusive right " over the image of property belonging to them, which means that this image cannot itself be considered a public domain asset. Furthermore, it considers that neither the taking of photographs of public property, nor the use of these images for commercial purposes, can be considered as a private use of the said property, the only use capable of justifying prior authorization and the levying of a fee.

As a result, the public entity owning the building cannot object to the images being taken or broadcast, even for commercial purposes. However, it may claim damages if it has suffered harm as a result of the abnormal disturbance caused by the use of the images.

In 2016, however, the legislator, out of concern for economic development, made an exception to this strict rule[3], by making the use of images of national estates subject to the authorization of the estate manager - who, [4] - and, where applicable, to the payment of a royalty.

3. privately-owned buildings

According to the French Supreme Court, "the owner of a thing does not have an exclusive right to the image of that thing". The owner cannot therefore object to the photographing or broadcasting of images of his or her property, except in the event of an "abnormal disturbance", and in particular in the event of an invasion of privacy.

Please note, however, that the distribution of these images is subject to the copyright of the artists who have put their personal stamp on the building: architect, painter, sculptor, etc. These artists hold the moral and economic rights to their works. These artists hold the moral and economic rights to their works. And even after the expiry of the economic rights (70 years after the death of the author), the moral rights subsist.

NB: The law provides for a number of exceptions:

- the "panorama exception", which concerns a work of art when it is not the main subject of the photograph/video and only constitutes an accessory and/or is located in the background

- the "Instagram exception", which concerns work placed on the public highway when it is used for non-commercial purposes

4. Buildings where filming and broadcasting are subject to contractual rules

Some buildings, in particular museums, but also public spaces, have rules governing the practice and distribution of photography. These regulations make access to the premises conditional on compliance with the requirements set out in the regulations, with any visitor thus de facto accepting the conditions of the visit.

The UPP challenges the legality of the distinction made by some of these regulations between amateur photographers (the only ones authorized to photograph) and professional photographers, or between commercial and non-commercial distribution, for spaces belonging to the public domain. If these regulations are not based on public safety and order, they disproportionately restrict freedom of expression and freedom of commerce.