Images Rights in France (Droit à l'Image)

November 26, 2019

DISCLAIMER : I do not have a legal background and the information given in this post is intended solely for information purposes and may be subject to interpretation. For a more comprehensive understanding of Privacy Laws and Intellectual Property Rights in France, please consult with a qualified legal representative.

 

IMAGE RIGHTS – PEOPLE

In French law, there is no legal definition of privacy, the laws are therefore quite broad and subject to interpretation with the Courts deciding on a case by case basis (Jurisprudence). However, everyone, irrespective of their social status, has the right to the respect of their privacy.

Image rights of individuals are protected by Article 9 of the French Code Civil which states that:

  • Each individual has the exclusive right to his or her own image, and the use made thereof and may thus oppose its reproduction and dissemination (« toute personne dispose sur son image, partie intégrante de sa personnalité, d’un droit exclusif qui lui permet de s’opposer à sa reproduction »)

  • In French law, one’s image is considered to be an attribute of one’s personality and therefore an inalienable and unassignable right.

  • Prior permission to use a person’s image, voice, and name must therefore be sought, irrespective of the place (public or private) in which the person is being filmed or photographed, or the number of people appearing on film, if the person is identifiable (by his/her characteristics, but also by the context, décor or markings such as tattoos for example)

  • Consent must be express, specific and in writing, providing details such as duration, territories and usage. Consent may be given free of charge or in exchange for compensation but may only be given for a "reasonable term" (usually 2 or 3 years for a model for example). A general and perpetual waiver or transfer however, could be challenged in the French Court system.

  • When it comes to minors or unfit adults, permission must be obtained from parents or tutors.

  • The authorisation must be sufficiently clear to ensure that the person is made fully aware of the use being made of his/her image.

  • The use of the image of the person cannot be degrading, humiliating or interfere with his/her privacy or dignity

Exceptions:
Prior permission does not have to be sought in the following cases:

  1. Public Figures (politicians, celebrities) during the exercise of their duties; for example; a politician on a campaign trail or a film star at a movie première. However, it becomes necessary to seek permission once the Public Figure is acting in a private capacity (for example a government minister on holidays).

  2. When the person being filmed/photographed is captured during a newsworthy event and the focus of the story is the event itself and not the person filmed (for example; a person photographed during a demonstration).

  3. A group of people in a public place or street scene can be filmed without seeking the prior permission from each individual on condition that the image does not focus on any one person in particular and that the object of the photos is the place and not the individuals. (For example; filming a group of tourists around a historical monument)

 

IMAGE RIGHTS - PROPERTY (Exteriors Only)

While, in principle, prior permission is not required to film/photograph property (exteriors only) from the public thoroughfare, case-law has set the following precedents:

  • The owner may oppose the use of images of his property if the resulting work causes him “abnormal disturbance” or results in the invasion of his privacy.

 

Exceptions to the above where prior consent is required:

  1. Original Works by Architects
    Original buildings designed by an architect (still living and for up to 70 years after his death) are protected by Le Droit d’Auteur (Coypright). A work is considered “original” in the sense that it has “obvious artistic value” and “bears the mark of its author's personality”.
    In theory, written permission to film/photograph these buildings is required, however, case law accepts that there is no infringement of copyright in the following situations:

    • the building is not photographed in isolation but in its natural setting

    • the building is featured in the background only

    • the building has a very secondary role in the photo, film or postcard

    • the representation of the building/work of art is incidental in relation to the principal subject treated or represented

    • the work of art is reproduced not as a work of art, but by necessity as part of the filming or photographing of a public place

  2. Properties classified as “Domaines Nationaux” (National Domains)
    Le Code du Patrimoine of October 7th, 2016 (Article 621-42) states that The commercial use of images of buildings that are part of the National Domain, in all media, are subject to the prior authorization of the management of the domain in question. This authorization can be in the form of a unilateral act or a contract, with or without attached financial conditions”
    Some examples of Domaines Nationaux in Paris and the Paris region are : Le Domaine du Louvre et des Tuileries, Le Domaine National du Palais Royal, Le Domaine National de Versailles, Le Domaine National de Fontainebleau,  Le Palais de l’Elysée…
    Exceptions where prior permission is not necessary:

    • When the images are used within the context of a public service mission or for cultural, artistic, educational or research purposes or to illustrate news events.

  3. Liberty of Panorama (Limited)
    Article 39 of the Law of October 7th, 2016 added a clause to article 122-5 of the Intellectual Property Code allowing for « the reproduction and representation of architectural works and sculptures, permanently placed on the public thoroughfare, by individual persons with the exclusion of all commercial use”.

Sources :

  • La Scam

  • L’APIE (L’Agence du Patrimoine Immatériel de l’Etat)

  • Digital Commons@Loyola Marymount University & Loyola Law School

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ANN FITZGERALD

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