In a decision dated May 21, 2015, the Paris Civil Court refused to admit the existence of a forgery of Jimi Hendrix’s photo on the grounds that the originality of the work had not been proved.

In this case, an electronic cigarette sales company had reproduced a Jimi Hendrix’s photo smoking an electronic cigarette instead of a real cigarette to promote its products on the internet.

The company received a formal notice to withdraw, without delay, the litigious advertising and was sued for forgery by the author of the picture and by the British company to which the author had transferred his economic rights.

Article 111-1 of the Intellectual Property Code states that “The author of an intellectual work shall enjoy in that work, by the mere fact of its creation, an exclusive incorporeal property right which shall be enforceable against all persons”. However, although no formalities are required to protect an intellectual work according to the copyright, this protection implies that the author has to prove the originality of the intellectual work. Under French Intellectual Property law, an intellectual work is protected if it’s original, which mean that it bears the imprint of the personality of its author and reflects artistic and creative choices that are not the result of chance. This criterion test has been ruled by former cases law.

Indeed, the Intellectual Property Code does not define originality and it is left to the Court appreciation.

Regarding the imprint of the author’s personality, the Court of Justice of the European Union ruled that: “An intellectual creation is unique to its author when it reflects the personality of this one and this is so if the author was able to express his creative abilities in the realization of the work by making free and creative choices” (Court of Justice of the European Union, December 1, 2011, Eva Maria Painer c/ Standard Verlags GmbH).

Therefore, in case of litigation, the author has to establish that his work is the result of “free and creatives choices” and, in the field of photography, it means, for example the choice of framing, light, exhibition technical parameters, the trigger time etc.

In its decision dates May 21, 2015, the Paris Civil Court dismissed the author’s requests and the request of the British company on the grounds that the originality of the picture was not established since the author “does not explain who the author relating to the subject, his costume and his attitude in general is.” Thus, the Court confirms that originality is not self-evident and it is the responsibility of the author to prove it.

In this case, the originality was not established. Consequently, the Court ruled that the work cannot be protected by copyright.