ETNA France

Copyright Troll or copyright abuse


Posted by: ETNA
Practice Area: Copyright    Country: France    Publish Date: 01-Feb-2024

We are going to tell you the fantastic story of the Copyright Trolls!

No, you're not on Netflix, and this story isn't science fiction.

Have you ever posted, on your website, photographs taken from online image banks to illustrate your various articles? Without really worrying about the existence of possible copyrights on the photos?
Let's be honest, you're not the first and won't be the last…Although!

Many press agencies, particularly French ones and among the best known, have hired the services of companies most often under Swiss or Belgian law in order to manage the rights of photographers and their photographs. These companies "mandated" by the press agencies use artificial intelligence to scan all the websites and detect the use of photographs of these agencies stored in their servers: these are the Copyright Trolls
These companies, whose practices are questionable to say the least, will contact you by email asking you to justify the use of the disputed photographs by an operating license which you will probably not be able to provide.
Illustrating their allegations with simple screenshots that are difficult to read, the probative nature of which would seem to be refutable, they will quickly request the payment of a transactional indemnity, the amount of which is purely arbitrary and often disproportionate to the alleged infringement.

These companies are often unable to justify the amount of the license and are content only to state that "company X has fixed this price in advance, we do not have in our possession a price sheet".
At this point, you will legitimately ask in what capacity does this company operate and how can they justify the ownership and rights of their sponsor. You will then be the lucky recipient of a "mandate" and a certificate on the letterhead of one of the press agencies, the value of which may be perplexing.

The pressure is then maximum for the recipients of these emails, often associations or VSEs, who are very quickly threatened to see the file entrusted to a Lawyer, and the amicable proposal hitherto agreed to take on any other proportion, and this before they even had a chance to discuss it with their councils.

These questionable methods are based on a predatory business model. The Advocate General of the CJEU, following a judgment dated June 17, 2021, (Case C 597/19) considered, in a similar case that "copyright is thus diverted from its objectives and used, or even abused, for purposes that are foreign to it” and could therefore constitute an abuse of rights and an instrumentation of intellectual property. These companies seem to be mainly seeking to obtain a gain and not the restoration and repair of an infringement of an intellectual property right since they often agree to lower the amount of the transactional indemnity by 90 % after negotiations!
Dare to say, this method borders on extortion!

Let us be clear, it is not a question of calling into question the existence and the interest of copyright, but of questioning maneuvers characterizing abuses in their exercise.
Under the terms of the provisions of article L 112-2 9º of the intellectual property code, photographic works are considered to be works of the mind within the meaning of article L 111-1 of the same code and are therefore protectable under the condition of originality, without appreciation of their merit.

It is therefore necessary to ascertain whether the disputed photographs bear the imprint of the personality of its author. In this matter, the case law considers that this is ousting the choices made by the photographer, in particular as regards the framing and angle of view, the lighting, the contrasts and reliefs sought.

However, in the majority of cases, the disputed photographs do not present any free and creative choice. The photographers did not choose either the location or the lighting imposed by the configuration of the premises, since these are often newsreel photographs taken from life, and essentially represent the expressions and/or spontaneous gestures of the subjects which were imposed on the photographers.

These photographs therefore only restore a moment captured without the photographer's personal input. The trial judges held that "The mere capture of reality, even with talent but without aesthetic bias or creative work, is insufficient" to demonstrate the originality of the photograph (CA Versailles, 1st ch., Dec. 8, 2017, n°15/08737)

Thus, in many episodes of the series Copyright Trolls, the character of originality would seem to be lacking, the protection by copyright then not being able to prosper and by extension the alleged infringement resulting therefrom.
Beyond originality, proof of ownership is also largely lacking, since you will only be sent a simple certificate from the press agency's internal marketing department… at best!
This story should embarrass the news agencies on whose behalf these companies act, at least as much as the dismay of the recipients of the payment requests.

Suspense guaranteed in the next episodes!

Jérôme FERRANDO and Clément FREYERMUTH


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