New developments in the field of employee creations

Continuing the trend set in motion several years ago by the courts and appeal courts, the Paris Court of Appeal, in a ruling dated June 30, 2023, has taken yet another step in favor of companies on the subject of employee creations.

In this case, the creations concerned are photographs.

Let’s leave aside the question of the originality of photographic works and their eligibility for copyright protection, which is not always easy to demonstrate and therefore to obtain, and assume that the photographs in question are perfectly original.

The case in question pitted an employee photographer against his employer, the IKKS company.

The employee’s job was to carry out photo shoots on behalf of IKKS.

Believing that he owned the copyright to the photographs he took, and that he had not given his consent to their use by IKKS, he tried to negotiate a transfer of these rights with IKKS, but IKKS refused.

IKKS, for its part, believed it owned the rights to the photographs, considering them to be collective works.

It should be remembered that “a work is said to be collective when it is created on the initiative of a natural or legal person who edits, publishes and divulges it under his or her direction and name, and in which the personal contribution of the various authors participating in its development blends into the whole with a view to which it is conceived, without it being possible to attribute to each of them a distinct right to the whole produced” (article L113-2 of the French Intellectual Property Code) and that article L113-5 of the French Intellectual Property Code provides that “a collective work shall be the property, unless proved otherwise, of the natural or legal person under whose name it has been disclosed.

The author’s rights shall vest in such person.“.

The employee considers that he “personally took” the 143 disputed photographs during the shootings, while not disputing that the said shootings were “broadly” organized by IKKS, but he considers that he had “sufficient freedom to express his personal style through his photographs“.

IKKS, for its part, argued that its employee “was not present at the shootings in his capacity as photographer, but as ‘communication assistant’, that he did not provide any definite proof that he was the originator of the photos in question, even though they were always disclosed and used under the name of IKKS Prestations, which initiated the shoots and had artistic and technical control and direction of the shots“, and added that the employee’s involvement was part of an indissociable whole.

In its ruling, the Court of Appeal recalls that “it is common ground that works resulting from a collective effort involving different people must be qualified as collective works, where the legal entity had the power of initiative over the creations and controlled the process right up to the final product, providing guidelines and instructions to harmonize the different contributions, which blended into the whole with a view to which they were conceived, without it being possible to attribute to each contributor a distinct right over the works produced“.

The Court points out that it is thus up to the employee to demonstrate that he has mastered the process of creating the photographs without being subject to the direction and control of his employer, which the employee does not demonstrate in this case.

On the contrary, the evidence presented to the court simply showed that he had participated in the creative process (shooting, choice of lighting, use or non-use of flash, selection of photographs, etc.) and that, on the other hand, IKKS “had to give its approval through its artistic director, select the photographs and have them retouched, so that it controlled the creative process“.

The judges therefore concluded that the employee was indeed subject to the control of his art director, and that “his contribution was the result of a collective work for which his employer had the initiative and control, and that consequently only IKKS Prestations is the owner of the copyright“.

With this ruling, the Paris Court of Appeal reiterates that the burden of proof lies with the party claiming ownership of the work created, and that in the case of works created as part of an employee’s mission, unless the latter has complete freedom to express himself and put his personal stamp on them, the employer will very often be the owner of the copyright, provided that the creation was made under the direction and control of the latter.

– Philippe BOHLAND, Intellectual Property Attorney and Partner at Mark & Law

Source: CA Paris, pôle 5, ch. 2, 30-06-2023, n° 21/13981