An appeal court in Paris has ruled that a photograph used in a high profile advertising campaign for the French National Tourist Office Federation (FNOTSI) was a deliberate copy of a Getty Images stock photograph.

While the court ruling is aimed at protecting photographers’ rights in their work, it also highlights the difficulties faced when clients commission photographers to shoot work based on existing photographs.

The decision overturns a court decision last year where a judge ruled that since the central concept being pictured – a couple kissing – could not itself be copyrighted, there was no case to answer.

The four-year legal battle case was brought by Getty Images against both FNOTSI and it’s Grenoble-based advertising agency Prisme after the tourist company published a commissioned photograph by French photographer Laurence Frappa which was so similar to the Getty image that even Ian Sanderson, the author of the original photograph, believed it was his when he first saw it.

Scots-born Sanderson, 56, told EPUK: “It was irritating, as you can imagine, by the court case dragging on, when it was so obvious that [the Frappa photograph] was a rip-off, and a copy.”

Original photograph widely published

Ian Sanderson’s photograph was originally taken for Athena in Paris in 1991, and shows a young couple on a fairground ride. The image, one of around 150 images taken by Sanderson which can be licensed through Getty, had been available for use through the stock library for ten years, and had also featured prominently on the front of one of their catalogues. It had also appeared on greetings cards, and was used by Getty on promotional postcards sent to French advertising agencies.

Ian Sanderson’s original photograph, taken in 1991 is pictured left, with the photograph used in the FNOTSI campaign on the right

The photograph used in the FNOTSI campaign had been commissioned specifically by advertising agency Prisme, and was taken by Laurence Frappa. Unlike Sanderson’s image, the blurred background was taken separately and digitally added in later.

“In court, Getty’s lawyers went over the [Frappa] picture bit by bit” Sanderson told EPUK. “That it was made from two separate images indicated that it was obviously constructed to match something. They said it was shot to match a drawing, which they produced in court, which turned out to be identical to my photograph.”

Expensive verdict

Getty Images had originally sought €40,000 in damages – five times the cost of the appropriate licence. The final award of damages and costs is believed to be below that amount, but still substantially in excess of what it would have cost the design agency to use Sanderson’s original photograph.

The Getty Images price calculator states that a license to use Ian Sanderson’s image for a two year campaign across print, web and billboards would have cost around €8,000. But according to one source, Frappa charged Prisme just €1750 for the photography, expenses, and licensing.

In addition to the damages and Getty’s legal costs, FNOTSI are estimated to have spent a further €60,000 to scrap the original campaign and to run it again with a different image. After Sanderson and Getty commenced court action the tourist board campaign image, originally intended as part of a two year marketing campaign across billboards, posters and leaflets, was withdrawn voluntarily after just six months.

It is understood that the damages would have been even higher had the campaign not been withdrawn, and had FNOTSI been a commercial organisation.

Similarity “could not have arisen by chance”

Getty argued that while the idea of a couple kissing on a roundabout could not be copyrighted, the likenesses between the Sanderson photograph and the Frappa image were so remarkable that they could not have arisen by chance.

These likeness included similarities between the two sets of models, the blurred background, that the photograph was taken from the inside of the carousel looking out, the clothes worn by the two sets of models, the position of the male models’ hands, and the angle at which the models were kissing.

Also on EPUK: When does inspiration become imitation ?

Read twelve case studies on visual plagiarism here.

Courts have traditionally sought to tread a narrow line between protecting copyright while not hindering the creation of fresh ideas. While the right for an author to benefit financially from the reuse of his copyrighted work is enshrined in copyright law, it is also important that accidental similarities can be allowed.

In common with most other European countries, legal claims for plagiarism in France are for the most part decided upon two legal tests. The first of these hinges on the principle that comparison betwen two works should be proved upon the number of similarities, rather than disproved upon the number of differences. The second test is that if similarity is proved, whether the similar elements are protectable by copyright, or whether they are generic ideas.

Sanderson, who is now based jointly in France and Spain told EPUK: “The case has been running for such a long time – four years – so the result is a bit of an anticlimax really. I’m happy to get them to pay up, and happy not to think about it any more. “