At some point all of us try our hand at taking photographs or at drawing (though ‘doodling’ would perhaps be a more fitting term in some cases). However, the fact of being the originator of graphical representations does not make them de facto copyright-protected works. Even the fact of being a professional, a good technician or knowing how to enhance the represented subject are not determining factors here.
Several recent decisions provide a timely reminder that all that is creation or is presented as such, is not necessarily original.
It is indeed originality which is the sine qua non for copyright protection. The basis for this abstract concept vacillates between the stamp of the author’s personality, their freedom of action, their expression of imagination in making choices, their point of view and their interpretation.
Case law is rather exacting on these matters and requires a high level of evidence to attain the Holy Grail of Originality.
1/ FREE AND CREATIVE CHOICES
The first decision, dated 30 March 2021, concerns a photograph representing packaging for bottles of cognac. The Court found against originality, and therefore against protection under copyright, determining in particular that the photographs expressed “no creative choice”. The judges stressed that the “technical” work that the photographer undertook, of “framing, lighting, shooting and touch-up” did not characterize “an original creative work”. In other words, when an item is represented objectively, without creating a setting for it or making any subjective choice, merely capturing the image does not give entitlement to the monopoly conferred by copyright.
A few weeks earlier, the same Court of Appeal at Versailles handed down a decision concerning a photograph of the violinist Yehudi Mehudin, finding originality while noting that “a photograph is original when it is the result of free and creative choices by its author showing the stamp of its author’s personality. These choices may be made prior to taking the photograph, by the choice of the setting, the pose or the lighting, at the time the photograph is made, by the framing, angle of shooting, the atmosphere created, or when the photograph is developed (…)“
It is to be noted that Judges are particularly attentive to the photographer’s freedom: when constrained by external conditions, originality is liable to be absent. In the last cited case, there was on the contrary “no specific condition or indication” and the photographer “had freedom of choice”, such that they made “free and personal choices characterizing artistic creation”. However, although the artist’s freedom is an indicator, it would not appear essential for characterizing originality, but instead would concern the qualification of being an author (or co-author). Collaboration in particular restricts freedom but does not rule out originality.
 Versailles, 1st Chamber, 1st Section, 30 March 2021, No. 19/00672.
 Versailles, 1st Chamber, 9 February 2021 No. 19/01
Be that as it may, these two decisions clearly illustrate the necessary and sufficient role of originality in protection under copyright: it remains essential to characterize how works, in particular photographs, are the result of choices which can result from a particular aesthetic stance.
2/ AN AESTHETIC STANCE, CONFERRING AN INDIVIDUAL PHYSIOGNOMY
The second decision that refused copyright protection concerned watermelon patterns , for which the company Monoprix claimed copyright. The Court of Appeal of Paris rejected such claims last 23 March, by ruling in particular that the claimed combination (triangular slices, point downward, pips uniformly distributed, ‘brush stroke’ form for the rind), confers overall “an impression of dynamism, and a stylistic summertime appearance, evoking childlike gentleness, distinguishing it from a mere figurative representation of a watermelon.”
However, the judges did not accept the originality of the design, essentially holding that the watermelon representation claimed did not bear the stamp of the author’s personality.
It was moreover a combination of banal elements, such combination not having “its individual physiognomy distinguishing it from those of the same type and expressing an aesthetic stance of its creator”. Originality may indeed be the result of adopting banal pre-existing elements, provided the ensemble so created can itself be recognized as original – which however did not appear to be the case here.
The plea concerning unfair competition was in similar manner rejected, the judges once again citing originality as one of the factors to take into account.
Returning to the introduction of this newsletter, our quick doodle of a watermelon would perhaps have had greater success with the judges than a too perfect and faithful representation of said cucurbit fruit.
That being said, this decision is not above criticism in our view.
It would have been interesting to know the Judges’ decision if a registered design application had been filed by Monoprix – because the assessment of the criteria for acquiring the right (novelty, individual character) and for protection (overall impression produced upon an informed observer) is different from that of copyright.
Ultimately, originality is still essential for protection by copyright. To characterize it and provide evidence thereof are thus fundamental stakes in protecting creations. This matter has moreover been examined recently by a report of the Upper Council on Literary and Artistic Property.
The choice of the forms of protection and the appropriateness of legal action remain important decisions which must be carefully examined in order to optimally protect the interests of right holders.
 Paris, 23 March 2021, No. 19-17.274
 The decision conventionally holding that no “unfair maneuvering constituting a fault” had been determined justifying sanction against similar or identical products being commercialized, which, by itself, is not at fault. Account should be taken of the “more or less servile, systematic or repetitive character of the copying or imitation, how long the use was, the originality and the reputation of the copied service”.
 Report entitled “Evidence for Originality”: https://www.culture.gouv.fr/Sites-thematiques/Propriete-litteraire-et-artistique/Conseil-superieur-de-la-propriete-litteraire-et-artistique/Travaux/Missions/Mission-du-CSPLA-sur-la-preuve-de-l-originalite
Fabrice Pigeaux has been an Intellectual property attorney for more than 10 years and joined Santarelli 2016. He assists a very diverse clientele, both in France and abroad, primarily handling trademark and domain name matters, and was named a Partner for Trademarks and Designs in 2021.