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Portrait photographs – poorer protection?

Portrait photographs – poorer protection?

Published: 07.12.11 at 13:22

The recent ruling in Painer centred on the use by certain newspapers of portrait photographs of Natascha Kampusch, then aged 10, taken by a portrait photographer, Ms. Painer. Natascha was abducted in 1998 but escaped her captor in 2006. Before making her first public appearance the newspapers in question, lacking an up to date photo, republished the old pictures taken of her as a child along with a photo fit of what she might look like in 2006.

Ms. Painer objected to both the publication of the originals without her consent and the publication of the photo fit which she argued was an adaption of her original work. The case was put on hold while a number of questions were referred to the CJEU (Court of Justice of the European Union). An issue for the court to decide was whether the copyright afforded to portrait photographs is inferior to that enjoyed by other works? The newspapers argued that there was a limited degree of artistic freedom involved when taking portrait photographs (aim for the face?!) and so a narrower form of protection was appropriate.

Thankfully for portrait photographers, the court rejected this argument. The court also gave some useful guidance on meeting the standard for copyright protection. Copyright protects works such as photographs that are original in the sense that they are the author's own intellectual creation. An intellectual creation is regarded as the author's own if it reflects the author's personality. This standard can be met by making creative choices when creating the set, shooting the photograph and choosing from a variety of developing techniques.

This decision may do little but confirm what was already thought however, further guidance on what is taken into account when determining whether a work is an author's own intellectual creation is always welcome. We often hear that for a work to be original the creator must exert a sufficient level of 'skill, judgement and labour'. These words aren't particularly helpful when taken by themselves and so the court is commended for expanding upon its reasoning in this instance.

Another question at issue was whether the press can circumvent usual laws of copyright in the interest of public security. Certain public authorities (e.g. the police) don't have to get copyright clearance before releasing photographs of people for example, to assist in the search for a missing person.

The court held that a newspaper may be useful in assisting with any missing persons search but stopped short of allowing newspapers, of its own volition, use of works protected by copyright by invoking an objective of public security. The decision must first be taken by the security authorities who must then agree to the publication by the newspaper to avoid the risk of interference with police investigations. The author of the photo must still be credited nonetheless. However, where a photograph is originally released by the police under the public security exception without accrediting the author, it is sufficient for newspapers that re-publish the photos to indicate their source alone if they have difficulties in identifying the author.

See this story reported in the IPKat - here

Photograph (some rights reserved) by rudylorejo


Please note that this article provides general information only but is not to be regarded as legal advice. You must take advice from a specialist lawyer in relation to your specific circumstances. Further, you should seek additional legal advice when dealing with parties based in other parts of the world or works originating from other parts of the world as the legal position may vary.


  1. Own-it comments

    For further commentary on this case, see the McDermott Will & Emery European IP Bulletin (page 3) -


    Posted by Joseph Walsh on 07.03.12 at 15:21


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