An electronic cigarettes and accessories sales company, Egotrade, reproduced Gered Mankowitz’s portrait of Jimi Hendrix for commercial advertising purposes back in 2015. As part of a campaign to promote e-cigarettes, the photograph was edited to replace the cigarette Hendrix held in the original shot with an e-cigarette. This photograph was printed and used in the form of advertising posters promoting the egotabco.com website. Some posters were also placed in front of two Ego Tabaco shops in Paris and some posters were also distributed electronically on the Internet. Mankowitz subsequently brought an action against Egotrade for copyright infringement in 2015. Under these proceedings, the Paris Tribunal de Grand Instance (TGI) ruled that the renowned portrait created by Gered Mankowitz of Jimi Hendrix was not eligible for copyright protection.
The TGI interpreted the concept of ‘originality’ as being based upon the artistic merits of the photograph, rather than the author’s own intellectual creation. This went against Recital 16 Directive/116/EC on the term of protection of copyright which stated that: ‘The protection of photographs in the Member States is the subject of varying regimes. A photographic work within the meaning of the Berne Convention is to be considered 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. The protection of other photographs should be left to national law.” The TGI concluded that Jimi Hendrix’s casual pose and gestures in the photograph reflected Hendrix’s own personality, rather than any artistic input from his photographer. A photograph’s originality can be derived from the photographer’s choices made in relation to it, such as:
- the subject’s posture;
- the background;
- framing and lighting;
- time of shooting;
- camera settings and device used; and
- editing techniques.
In this instance, the TGI concluded that Gered Mankowitz’s contribution was commonplace and could not be attributed to him without doubt. As the TGI did not consider the photograph to have met the required originality thresholds, it concluded the work did not mirror “the author’s (G.Mankowitz) own intellectual creation”.
2017 COURT OF APPEAL JUDGMENT
Further proceedings were launched in June 2017, which saw the case reach the Paris Court of Appeal. In arguing the originality of the portrait, Mr. Makowitz submitted to the Paris Court of Appeal that:
- he had organised the shoot in 1967;
- he directed Hendrix in terms of position and angle;
- he used a specific camera and lens to create a wide-angle effect; and
- he made direct choices regarding the lighting, background, framing and angle of capture of the photograph.
Amongst the factors taken into account in reaching its decision, the Court of Appeal considered the fact that Mankowitz’s other photographs and artistic creations were internationally renowned. The court also stated that given the context and the captions used in the reproduction of the work, an everyday consumer could have easily believed that the use of the photograph for commercial purposes was authorised by Mankowitz or even that he endorsed the marketed products (e-cigarettes). Mr. Makowitz was able to show that he took active executive decisions in relation to the photography. This proved that Mr. Makowitz’s choices (enlisted above) influenced and determined the photography’s originality. This, together with the fact that Mr. Makowitz’s was internationally renowned, convinced the Court of Appeal to reverse TGI’s decision and held that the photograph did possess the required quality of originality to be protected under copyright law. Egotrade’s commercial exploitation of the photograph without Mankowitz’s consent infringed his intellectual property rights. Egotrade was ordered to pay damages in a total amount of € 75,000. The use of artistic works, whether altered or not, for commercial advertising purposes, requires permission from the original creator (even if used for parody). The burden of proof is on the artist to show that the relevant work possess the requisite levels of originality. The ways in which originality can be shown include submitting evidence showcasing the process of creation of the artistic work.