Know the legal environment of a fund

Ownership of a physical medium does not imply ownership of the copyright (economic and moral rights) relating to it.
Under Article L.111-3 of the French Intellectual Property Code (CPI), it is necessary to clearly distinguish the intangible property from that of the material object, which are independent of each other. A museum that buys a photograph from a contemporary artist becomes the owner of the medium of the work, but not the copyright attached to it.

It will therefore be important to clarify the legal environment of photographs and/or funds before any exploitation by considering a contractual regularisation. In the absence of answers to these questions, the valuation and dissemination of the fund may be compromised.

How to differentiate between media ownership and copyright ownership of photographs?

Article L.111-3 of the Intellectual Property Code provides that:the intangible property is independent of the property of the material objectIn other words, the owner of tangible media is not necessarily the copyright holder of the works.

This is the case, for example, of a museum that buys a photograph from a contemporary artist or a collector who has collected the prints of several photographers. Similarly, possessing a photographer’s negatives does not mean that copyright is available on prints made from those negatives.

In order to be a copyright holder, these copyright holders must have their works assigned to them expressly.

In the event that the photographs are not freely usable (because they are not in the public domain), it will therefore be important to look in the archives for any contracts for assignment of rights or invoices relating to the acquisition of the said photographs or, where applicable, potential authors and assigns.

If, at the time of acquisition of the media, the economic rights have not been transferred, it will be important to contact the photographers or their rights holders in order to agree on the terms that will govern the exploitation and use of the items by the institution.

How do I establish the physical ownership of items?

If the items are already in the institution, how are they entered? Were they acquired by the institution? Are they the property of the institution? Are they filed? Are they under management? Are there administrative documents that tell you about the status of these objects?

First, it will be important to search for contractual elements, invoices, etc. to determine the status of the objects kept (ownership by purchase, dation, donation, bequest, deposit, management, etc.) In the absence of documents clearly establishing its status, the valuation of a fund becomes difficult.

In the event that these elements are non-existent or unclear, and if the producer, photographer or rights holders are known to the institution, it will be important to initiate a regularisation.

In law holding an object does not automatically mean that one is the owner. Thus, in the context of a deposit, the museum or the archives centre is not considered as the owner of the items preserved but is, in the sense of civil law, a precarious holder and may be required to return the preserved objects.

With the exception of the deposit, the other forms of entry into the collections entail a transfer of ownership for the benefit of the holding structure, whether it be expensive entry (purchase, dation) or graceful (gift: bequest or donation). With regard to the latter, it must take place via a notarial act, under penalty of nullity. However, the case law admits in practice the «manual» donation for documents having no market value, while the notarized donation is reserved for prestigious and valuable funds.

With regard to manual donations, it is important to ensure that such transfers of ownership are accompanied, as far as possible, by a letter of intent which will provide for the methods of communication and use of the donated objects.

Is possession worth title?

Legally, objects that constitute a stock of photographs are «movable property» within the meaning of civil law, and are applied the rules of bodily property (as opposed to intellectual property).

Article 2276 of the Civil Code specified: 'In terms of furniture, possession is title. Nevertheless, a person who has lost or stolen a thing may claim it for five years from the day of the loss or theft against the person in whose hands he finds it ( ...)»

This means that there is a presumption of ownership in favour of the person who has the movable property in his hands, until proven otherwise. This presumption can be reversed if the true owner who would have been wronged can prove it by producing, for example, a deposit agreement demonstrating the precarious detention of the possessor.

This rule of the Civil Code allows for the immediate acquisition of ownership of a movable thing by the possessor in good faith (Article 1141 of the Civil Code). The true owner of a movable property cannot then claim his property from the possessor in good faith, if the following four conditions are cumulatively met:

• Possession exercised as owner. A loan for example requires a subsequent restitution of the object;

• Actual and effective possession;

• Possession exercised in good faith: the possessor must be persuaded that he has acquired the property of a true owner;

• Possession free of vice: possession must be peaceful, public and unequivocal.

Conversely, the Civil Code authorizes the true owner to claim his movable property if it has been lost or stolen, provided however that he acts within three years from the day of the loss or theft. If the claim is successful, the possessor must return the object or objects. In certain situations provided for in Article 2277 of the Civil Code, the possessor may be compensated:If the present possessor of the stolen or lost thing bought it in a fair or a market, or in a public sale, or from a merchant selling such things, the original owner may have it returned to him only by reimbursing the owner the price he has paid.»

Applied to photographic holdings, the acquisitive prescription allows the holding structure, after five years of holding without any form of contract, to presume that in its capacity as a possessor of a property not claimed it can be considered as its owner.

In the absence of a written record of a donation, for example, the services holding photographic holdings may use the acquisitive prescription rule if they can demonstrate that their possession meets the legal requirements mentioned above.

On the basis of the information available, a date of entry of the fund must then be determined. This date will be used to calculate the five-year acquisitive limitation period, at the end of which the holding institution may be considered as the owner.

What is copyright?

It is a prerogative attributed to the author of a work of the spirit which allows him to control the uses of his work and to perceive its fruits. Copyright has both economic and moral rights.

Article L 111-1 of the Intellectual Property Code (CPI) specifies:

«The author of a work enjoys an exclusive and enforceable intangible right of ownership over that work by virtue of its creation. This right includes intellectual and moral attributes as well as patrimonial attributes, which are determined by Books I and III of this Code. The existence or conclusion of a contract for the rental of a work or service by the author of a work of the mind does not imply any derogation from the enjoyment of the right recognized by the first paragraph.»

Learn more:Consolidated text as of 8 August 2015

What are economic and moral rights?

The economic rights conferred on authors are primarily the rights of representation and reproduction. They allow the author to authorize or prohibit

Any form of exploitation of his work whatever the modalities. Any use of his work without his authorization constitutes an infringement which is civil and/or penally sanctioned (ICC Art. L. 122-4).

The right to reproduce consists in the material fixation of the work to the public by all the means that allow it to be communicated to the public indirectly (ICC Art. L. 122-3The right of representation consists in the communication of the work to the public by any means (ICC Art. L. 122-2), including posting on a publicly accessible website.

Economic rights may be transferred by contract for a limited period of time. Often, this assignment corresponds to the legal term of the copyright, namely seventy years after the author’s death.

Moral law refers to a set of prerogatives attached to the person of the author (and his rights holders). It is inalienable, imprescriptible and elusive (art. L 121-1 CPI). Moral rights include for the author the right to respect for his work (that is, to oppose any alteration of his work) and the right to authorship, which allows him to demand that his name be always associated with his work. The mention of the author’s name is mandatory when writing a photo credit.

The holder of economic rights is not automatically the holder of moral rights.

No project of valorization can be done without the agreement of the author or its rights holders, holders of moral right.

Are all photographs subject to copyright?

The Intellectual Property Code protects “works of the mind” which include “photographic works and those made using techniques analogous to photography” (Art.Article L112-2 Paragraph 9).

However, jurisprudence conditions this protection on the existence of an original work. In photography the question of originality is particularly complex and can only be resolved as a last resort by the sovereign appreciation of the judges. It is generally considered that a work is original if it bears the imprint of the personality of its author, that is, if the author has made personal aesthetic choices (light, angle of shooting for example).

If the character of originality cannot be retained, then the author of the photograph cannot assert his rights and the photograph can be used freely.

When are the photographs in the public domain?

With rare exceptions (collective work, posthumous work), the works of an author fall into the public domain seventy years after the death of the latter, starting on 1 January of the calendar year following the year of death.

Can certain uses of a photograph dispense with systematic authorization by the author?

A photograph protected by copyright may be used under certain special conditions, without the author being able to object. Article L. 122-5 of the Intellectual Property Code limits a number of exceptions.

The law authorizes in particular the use of the work disclosed, without the author’s authorization, by the reproduction and representation, for the purpose of conservation or preservation of the conditions of on-site consultation, by libraries accessible to the public, museums and archives, provided that no economic or commercial benefit is derived from them.

Which photographs can be considered orphan works?

Photographs are called orphan works (definition introduced in article L 113-10 of the Intellectual Property Code by the law 2012-287 of 1 March 2012 on the digital exploitation of unavailable books of the twentieth century) when they are still protected by copyright but their author or his successors cannot be known, located or contacted, despite diligent research, This makes their presentation and exploitation very complicated until they switch to the public domain. Directive 2012/28/EU established common rules for the digitization and online display of these works.

Law 2015-195 of 20 February 2015 has transposed this directive into French law and provides for thelibraries accessible to the public to digitize and make available to their users works belonging to their collections and considered orphans […]The possibility is extended to museums, archives, etc. These works will be made accessible to as many people as possible, “thanks to the num holderand in a non-profit framework». Article L 135-1 of the Intellectual Property Code excludes from the text fieldphotographs and still images that are not included in the categories of the above-mentioned works» (books, magazines, magazines, newspapers, etc.) For the moment, photographs do not benefit from the device allowing certain cultural institutions to digitize and make available to the public certain types of orphan works.

What does “all rights reserved” or DR mean?

This mention is a practice that allows to cover different types of use, notably by the press to designate photographs, for example from holdings not sufficiently listed, or circulating on the web, and of which neither the provenance nor the author is known for certain. In this case, the mention «DR» is placed, in place of the photo credit, on works whose author has not been identified.

In terms of copyright, this is a practice designating cases of orphan photographs. The mention is not obligatory and does not give rise as such any right.

It is recommended to reserve this mention only for works for which a search for authorship has been carried out and for which this search has not yet resulted.

As regards the legal and other issues involved in the use of the words "rights reserved", see 2010 IGAC report on photojournalism.

What is a copyright assignment agreement?

If the rights were not acquired at the time of the transfer of the fund, this situation should be regularised in order to consider the exploitation and valuation of the fund. You should then contact the appropriate legal department.

The law imposes a certain formalism and mandatory mentions when the contract of assignment of copyright is formed (ICC Art. L. 131-2 and L. 131-3).

First of all, all rights that are transferred must be expressly mentioned. Then, for each of these rights, the contract must delimit its domain of exploitation according to four elements: its extent, its purpose, the place, and the duration of exploitation (ICC art. L. 131-3).

Assignments of copyright are governed by a strict interpretation principle which limits their scope to the methods of exploitation strictly provided for in the contract: this means that anything not expressly assigned is deemed to be retained by the author.

The drafting of the contract must therefore be as precise as possible and must provide for all the media and operating methods envisaged.

The transfer must in principle provide for a proportional remuneration from the author to the revenue from the sale or exploitation of the fund. It may also be free of charge (if expressly agreed by the author) or may give rise to lump sum remuneration in certain special cases (cases provided for in Article IAP L131-4).