zontone.fr

COPYRIGHT,

STREET PHOTOGRAPHY

AND FINE ART PRINT SALE

Laurent Zontone — Artist-Photographer
Website: www.zontone.fr

COPYRIGHT IN PHOTOGRAPHS

All photographs presented on www.zontone.fr, as well as on Laurent Zontone’s Instagram accounts, constitute photographic works protected by copyright where they meet the conditions for protection laid down by the French Intellectual Property Code.

Photographic works are expressly recognised as works of the mind under Article L.112-2 of the French Intellectual Property Code.

Under the French Intellectual Property Code, copyright protection arises from the mere creation of the work.

Laurent Zontone’s photographs are protected under French literary and artistic property law, as well as under applicable international conventions.

Unless authorised by the author or covered by a statutory exception, no photograph may in particular be:

copied;
downloaded;
reproduced;
digitised;
reprinted;
modified;
cropped for distribution purposes;
published on another website or social network;
incorporated into another creation;
used for commercial or advertising purposes;
sold or licensed to a third party;
exploited in any manner whatsoever.

Viewing a photograph on the website or on a social network does not constitute authorisation to use it.

MORAL RIGHTS AND ECONOMIC RIGHTS

Laurent Zontone retains his copyright in all his photographs, including where a photograph is:

published;
exhibited;
presented online;
presented on Instagram;
offered for sale;
or sold in the form of a Fine Art print.

Authorisation granted for a specific use does not constitute, unless expressly stated otherwise, a general assignment of copyright.

Any licence or authorisation to exploit a work shall be interpreted in accordance with the terms expressly agreed with the author.

LICENCES FOR USE

Any person, company, institution, media organisation, agency or other entity wishing to exploit a photograph by Laurent Zontone must obtain prior authorisation where required by law.

A licence of use may specify, in particular:

the photograph concerned;
the nature of the authorised use;
the media concerned;
the territory;
the duration;
the number of reproductions or intended distribution;
whether the use is commercial or non-commercial;
any authorised adaptations;
the financial terms.

Authorisation granted for a specific medium or use does not automatically apply to other media, uses, territories or periods.

Any use exceeding the scope of the authorisation granted requires a new agreement with the author.

PRESENTATION OF WORKS ON INSTAGRAM

Laurent Zontone’s photographs are also presented on his Instagram accounts:

@laurentzontone-bw — black-and-white photography

@laurentzontone-color — colour photography

These accounts serve, in particular, as spaces for presenting, discovering and selecting Laurent Zontone’s photographic works.

Certain photographs presented on these accounts may be offered for sale in the form of Fine Art prints.

The fact that a photograph is published on Instagram, can be viewed or shared, or can be selected by a customer for the purpose of purchasing a Fine Art print, does not constitute an assignment or licence of copyright.

The photographs remain protected by Laurent Zontone’s copyright.

Selecting a photograph from Instagram may lead to an order for a Fine Art print under the terms offered by the author.

The purchase of the physical print does not grant any right to reproduce, distribute or exploit the image.

ONLINE AND SOCIAL MEDIA PRESENCE

Laurent Zontone’s photographs may be presented on:

www.zontone.fr

as well as on his Instagram accounts:

@laurentzontone-bw

@laurentzontone-color

These publications are intended, in particular, to present his photographic work and to allow interested persons to discover and, where this option is offered, select works that may be made available as Fine Art prints.

Making a photograph available online or on a social network does not mean that the photograph is free of copyright restrictions.

Unless a statutory exception applies, downloading, reproducing, independently republishing, modifying or exploiting a photograph requires the author’s prior authorisation.

Sharing through Instagram’s native sharing features remains subject to the platform’s terms of use and must not be interpreted as a general authorisation to reproduce or exploit the work.

Where a reproduction has been expressly authorised, the author must be identified by the following notice:

and, where technically possible, by a link to:

www.zontone.fr

STREET PHOTOGRAPHY: COPYRIGHT AND IMAGE RIGHTS

Street photography is an essential component of Laurent Zontone’s artistic and humanistic approach.

It consists, in particular, of capturing scenes, attitudes, looks, interactions and situations in public spaces.

Two separate rights must be distinguished:

the photographer’s copyright in the photographic work;

and the image rights and privacy rights of the persons depicted.

These two rights may coexist in the same photograph.

Image rights concern the person depicted and the use made of that person’s image.

Article 9 of the French Civil Code provides that everyone has the right to respect for their private life.

PHOTOGRAPHING A PERSON IN A PUBLIC SPACE

The fact that a person is identifiable in a photograph taken in the street does not mean that written authorisation is systematically required for every artistic publication of that photograph.

French case law recognises that image rights must be balanced against freedom of expression and freedom of artistic creation.

Accordingly, the absence of prior written authorisation does not, in itself, constitute an automatic prohibition on the dissemination of an artistic photograph taken in a public space.

This question must be assessed in light of the specific circumstances of each photograph, including:

the circumstances in which the photograph was taken;
whether the situation depicted was public or private;
the artistic approach;
the context of publication;
the purpose of the dissemination;
any potential infringement of privacy;
the dignity of the person;
and the potential consequences of publication.

PARIS COURT OF APPEAL JUDGMENT OF NOVEMBER 5, 2008 — THE FRANÇOIS-MARIE BANIER CASE

A particularly important decision for artistic street photography was handed down by the Paris Court of Appeal on November 5, 2008, no. 07/10198, in proceedings concerning the publication of a photograph taken by François-Marie Banier.

The photograph had been taken in a public place without the consent of the person photographed.

The Court nevertheless upheld the dismissal of the claim.

It carried out a balancing exercise between, on the one hand, freedom of expression and artistic creation and, on the other hand, the person’s image rights.

The Court considered in particular the artistic nature of the photographic approach.

It found that the photograph did not disclose any element relating to the person’s private life and did not infringe the person’s dignity.

The Court therefore balanced the right to one’s image against the freedom of artistic creation.

It held that image rights could not arbitrarily prevent the freedom to communicate the ideas expressed through an artist’s work.

This decision is therefore a particularly relevant reference for street photography and humanistic photography.

SCOPE OF THE BANIER JUDGMENT

The judgment of November 5, 2008 does not mean that every photograph taken in the street may be published without any limitation.

It does, however, establish an important principle:

The absence of written authorisation from the person photographed is not, in itself, sufficient to prohibit the dissemination of a photograph taken in a public space as part of an artistic approach.

The judge must balance the rights and freedoms involved.

Freedom of artistic creation has limits, particularly where publication infringes the dignity of the person or causes particularly serious consequences for that person.

Each photograph must therefore be assessed according to its own circumstances.

IMAGE RIGHTS AND COPYRIGHT: TWO DISTINCT RIGHTS

The same photograph may simultaneously be:

a work protected by the photographer’s copyright;
a representation of a person benefiting from rights relating to their image and private life.

Image rights concern the person depicted and the use made of that person’s image.

The photographer’s copyright therefore does not automatically eliminate the rights of the person depicted.

Conversely, the fact that a person is identifiable does not automatically deprive the photographer of copyright in the photograph.

These two rights must be reconciled.

STREET PHOTOGRAPHY AS ARTISTIC EXPRESSION

Laurent Zontone’s approach forms part of an artistic and humanistic practice of street photography.

The photograph may be intended, in particular, to capture:

a look;
an attitude;
an emotion;
an interaction;
a scene from everyday life;
a human presence;
a particular moment in a public space.

Within this framework, the person depicted may be the subject of the work without prior written consent necessarily constituting an absolute condition for publication.

The assessment must nevertheless remain consistent with the limits established by case law and applicable legislation.

PRINCIPAL AND INCIDENTAL SUBJECTS

The position occupied by a person within the photographic composition is also a relevant consideration.

A person may be:

the main subject of the work;
one of the main subjects;
or appear incidentally within a broader scene.

The incidental nature of the representation may be taken into account when assessing the lawfulness of publication.

Each photograph must nevertheless be considered individually.

PRIVACY AND DIGNITY

The fact that a photograph is taken in a public space does not mean that every element concerning a person may freely be disclosed.

Article 9 of the French Civil Code protects the right to respect for private life.

Artistic freedom must also be exercised with respect for the dignity of individuals.

In the Banier case, the Court of Appeal specifically noted the absence of an infringement of the person’s private life or dignity.

CONTEXT OF PUBLICATION

The context in which a photograph is disseminated is an essential consideration.

The same photograph may be presented:

in an exhibition;
in a photographic book;
in the artist’s portfolio;
in a gallery;
on the author’s website;
on Instagram;
in an editorial publication;
in a news article;
or in an advertising campaign.

These different uses must not automatically be treated in the same way from a legal perspective.

The artistic, editorial, informational, commercial or advertising purpose of the dissemination must be taken into account.

COMMERCIAL AND ADVERTISING USE OF A PERSON’S IMAGE

Freedom of artistic creation does not constitute a general authorisation to use a person’s image for advertising purposes.

The French Court of Cassation recalled this in its judgment of July 9, 2009, no. 07-19.758.

In that case, the Court of Cassation quashed a decision of the Paris Court of Appeal which had considered lawful the use of an artist’s photograph on a record box set.

The Court held that the use of a person’s image to promote that person’s works required that person’s authorisation, and that reproducing the person’s image in support of the sale of those works did not necessarily constitute information benefiting from freedom of expression.

This decision is therefore important in distinguishing:

the presentation of a photograph as an artistic work

from the use of a person’s image as a commercial or advertising argument.

DISTINCTION BETWEEN THE BANIER JUDGMENT AND THE COURT OF CASSATION JUDGMENT

It should be specified that the Court of Cassation judgment of July 9, 2009, no. 07-19.758, was not a judgment rendered in the Banier proceedings.

It concerned a separate case.

It is nevertheless cited here because it provides an important judicial reference concerning the boundary between:

freedom of expression;
artistic creation;
information;
and commercial exploitation of a person’s image.

The November 5, 2008 Banier judgment therefore remains, in this document, the specific reference concerning artistic photography taken in a public place without prior authorisation.

THE PHOTOGRAPHIC APPROACH OF LAURENT ZONTONE

Street photography is an artistic and humanistic approach for Laurent Zontone, based in particular on observing people, looks, attitudes, interactions and moments of everyday life.

The people photographed are not regarded merely as anonymous elements of a composition.

They form part of the human reality that the work seeks to capture.

This approach is pursued with respect for the dignity of individuals, their private lives and the limits established by French law.

SALE OF FINE ART PRINTS

Fine Art prints offered by Laurent Zontone are physical supports reproducing his photographic works.

The purchase of a print concerns the physical medium on which the work is reproduced.

It does not constitute an assignment of the copyright attached to the photograph.

The acquisition of the physical print and the acquisition of exploitation rights in the image are two legally distinct transactions.

Upon full payment, the purchaser becomes the owner of the physical print.

Laurent Zontone remains the holder of the copyright attached to the photograph.

USE OF THE PRINT BY THE PURCHASER

The purchaser does not automatically acquire any right to:

reproduce the photograph;
make new prints;
digitise the print for the purpose of distributing the image;
publish a digital file;
exploit the photograph for commercial or advertising purposes;
incorporate the photograph into another creation;
commercialise the image;
assign to a third party rights which the purchaser does not own.

Any use beyond the simple possession and private enjoyment of the print requires authorisation where such authorisation is legally required.

STREET PHOTOGRAPHY AND SALE OF A PRINT

The sale of a Fine Art print depicting a person photographed in a public space does not, in itself, constitute an assignment of copyright in the photograph.

The print remains a photographic work by Laurent Zontone.

The purchaser acquires the physical medium of the work and not the exploitation rights in the image.

Any subsequent use of the photograph must therefore be distinguished from the acquisition of the physical print.

PRINTS SELECTED THROUGH INSTAGRAM

Photographs offered on the accounts:

@laurentzontone-bw

and

@laurentzontone-color

may, where this option is offered, be selected by a customer for the purpose of purchasing a Fine Art print.

Selecting a photograph through Instagram does not alter the legal regime applicable to the work.

The customer purchases the print offered by Laurent Zontone and not the rights to reproduce or exploit the photograph.

Any request concerning a particular use of the image — including publication, reproduction, commercial exhibition, editorial use, communication or advertising — must be considered separately and, where necessary, be subject to separate authorisation.

SHARING AND REPRODUCTION ONLINE

The presence of a photograph on www.zontone.fr or on Laurent Zontone’s Instagram accounts does not mean that it is free of copyright restrictions.

Unless a statutory exception applies, downloading, reproducing, republishing or independently exploiting a photograph requires the author’s authorisation.

Sharing through Instagram’s native features must comply with the platform’s terms of use.

It must not be interpreted as a general authorisation to download, reproduce or exploit the work.

Where a reproduction has been expressly authorised, the following notice must be used:

and, where technically possible, a link to:

www.zontone.fr

should accompany the publication.

REQUESTS FROM PHOTOGRAPHED PERSONS

Any person who believes that a photograph published on www.zontone.fr or within Laurent Zontone’s presentation spaces infringes their rights may contact the author directly:

laurent.zontone@icloud.com

The request may specify:

the photograph concerned;
the context in which it appears;
the reason for the request;
the rights that the person believes are affected;
any information making it possible to identify the photograph precisely.

Each request will be examined individually, taking into account:

the circumstances in which the photograph was taken;
the artistic, documentary or other nature of the photograph;
the context of publication;
the purpose of the use;
privacy;
the dignity of the person;
and the applicable rights and freedoms.

Receiving and examining a request does not, in itself, constitute an acknowledgement that the rights of the person concerned have been infringed.

PRINCIPLES ADOPTED BY LAURENT ZONTONE

Laurent Zontone’s photographic practice is based in particular on the following principles:

Original photographs constitute works protected by copyright.
The photographer’s copyright and the image rights of the person photographed are two distinct rights.
The identification of a person photographed in a public space does not automatically create a prohibition against artistic dissemination.
The absence of prior written authorisation does not, in itself, constitute an automatic prohibition against disseminating an artistic street photograph.
Freedom of artistic creation must be balanced against image rights, respect for private life and the dignity of the person.
The context and purpose of publication are decisive considerations.
Artistic or editorial use must be distinguished from advertising or promotional use of a person’s image.
The sale of a Fine Art print does not constitute an assignment of copyright in the photograph.
Presenting or selecting a photograph on Instagram does not constitute an assignment of rights.
Each photograph must be assessed according to its own circumstances.

LEGAL AND JUDICIAL REFERENCES

This document is based in particular on the following legal provisions and judicial decisions.

Legal provisions

Article 9 of the French Civil Code
Respect for private life and the legal basis for the protection of a person’s image.

Article L.112-2 of the French Intellectual Property Code
Photographic works are expressly included among protected works of the mind.

Articles L.111-1 et seq. of the French Intellectual Property Code
Protection of copyright.

Article 10 of the European Convention on Human Rights
Freedom of expression.

Principal case law

Paris Court of Appeal, November 5, 2008, no. 07/10198 — François-Marie Banier case.

This decision directly concerns the publication of a photograph taken in a public place without the consent of the person depicted.

The Court balanced freedom of expression and artistic creation against image rights.

It held that freedom of artistic creation could give way, in particular, where publication was contrary to the dignity of the person or caused particularly serious consequences for that person.

In the case at issue, the photograph taken in a public place did not infringe the private life or dignity of the person depicted.

Court of Cassation, First Civil Chamber, July 9, 2009, no. 07-19.758.

This decision, concerning a separate case, constitutes an important complementary reference regarding the commercial use of a person’s image.

The Court of Cassation held that the use of a person’s image to promote that person’s works required the person’s authorisation and that reproducing the person’s image in support of the sale of those works did not necessarily constitute information benefiting from freedom of expression.

Important: this judgment of the Court of Cassation does not constitute a judgment quashing the Banier judgment of November 5, 2008. It is cited here as a separate and complementary judicial authority.

CONTACT — LICENCE AND AUTHORISATION REQUESTS

Any request concerning:

a licence of use;
reproduction;
publication;
commercial use;
advertising use;
an editorial project;
an artistic project;
or the acquisition of a Fine Art print

may be addressed to:

Laurent Zontone
Artist-Photographer

Email: laurent.zontone@icloud.com

Requests concerning Fine Art prints may also be made on the basis of photographs presented on:

@laurentzontone-bw

@laurentzontone-color

DISCLAIMER

This document sets out the principal legal principles applicable to artistic and street photography, the protection of photographic works and the sale of Fine Art prints.

It does not constitute individual legal advice.

The lawfulness of a photograph or its dissemination must always be assessed according to the circumstances specific to the image, the person depicted, the circumstances in which the photograph was taken and the context in which it is published.

Case law may evolve, and the application of these principles may vary according to the specific circumstances of each situation.

Laurent Zontone reserves the right to adapt these provisions in accordance with changes in French legislation and case law.

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