Friday, May 30, 2008

IP Talk Blog

Thanks to Steven Hartman, I have come across a delightful French IP publication/blog, in English, called IP Talk. Here's the link to the blog, which I shall avidly read. The page I was sent was not on the blog, or at least I couldn't find it. It contains two blurbs that might surprise U.S. copyright lawyers. The first covers a Paris Court of Appeal opinion holding that at least the paparazzi at issue did not create copyrightable photographs. According to the write up:

The decision is based on the passive behaviour of the paparazzi when taking pictures. The judge regarded their work as being a material arrangement of the camera for the sole purpose of being ready to capture a star once he/she would show off. The lack of any artistic arrangement, specific searched angle and choice of the moment of the pictures brought [the court] to consider the pictures as not original.
This may the only time I have seen paparazzi described as passive. The decision seems questionable factually, as paparazzi are notorious for trying to get the "money shot," as those who regularly read (or in LA see) TMZ. The most famous parallel in the U.S. does not involve a paparazzi, but rather Abraham Zapruder's pictures (really a video) of the John F. Kennedy assassination. Zapruder had set his camera up to take pictures of the Kennedy entourage as it drove by, but clearly did not expect to capture Kennedy's killing. The court found the pictures protectible, Time Inc. v. Bernard Geis Associates, 293 F. Supp. 130 (S.D.N.Y 1968). And what about photojournalism? Some of the most famous photos ever taken were happenstance too, like the assassination of a Viet Cong soldier whose head we see a split second before the raised pistol's trigger is pulled, or the little Vietnamese girl, running naked, screaming away from napalm. It is the importance of the subject matter of these photos, and not copyrightable elements of posing etc. that separate them from pictures taken by paparazzi. Still, the French decision illustrates the higher level of protection for photographs required in a number of countries. The U.S. standard by contrast is the same for all works.

The other blurb concerns a February 5, 2008 decision by the French High Court apparently holding that copyright exists in fashion show as a whole, not just in the individual elements, such a lighting and the clothes. The dispute arose from a website that showed pictures from shows. This seems fairly extraordinary unless the show was by one designer who could be said to have choreographed the whole event, and even then there is the fixation question -- but not in France which I believe has no such requirement. Those interested in the question of fixation under U.S. law in theatre should read this article by Carrie Gallia in the 2007 issue of the Minnesota Law Review, entitled "To Fix or Not to Fix: Copyright's Fixation Requirement and the Rights of Theatrical Collaborators."

Finally, Harvey Korman may your memory be a blessing. You brought laughter and happiness to all of us.


Anonymous said...

The two items you refer to re: fashion show copyrightable and paparazzi photos not under French law, comes from the April 2008 issue of WIPO magazine. See

Prof. Michael Scott
Southwestern Law School

William Patry said...

Thanks, Michael, my copy is actually from the IP Talk newsletter. See this note at the bottom of the WIPO magazine:

From Franck Soutoul and Jean-Philippe Bresson,
European Trademark Attorneys at INLEX IP Expertise; reporters for the IP Talk legal newsletter, France.

Laurent GUERBY said...

In the IP circus, on trademarks you have some funny stuff in France, two examples:

* number 29 recognized as a valid trademark in France (first instance court)

* "allez les bleus" is also a valid trademark (supreme court), expression to mark support for the national soccer team which usually play in blue.