Photographers and collectors
The Law

Nowadays, everything seems to be collectible, from works of art to an amazing variety of different objects. All art forms have their collectors, who begin by owning a few pieces, then become hooked and build up bigger and bigger collections. Photography is no exception, and photography collectors are sometimes called upon for their services. Collectors must be given some credit as they constitute a form of living memory of their chosen specialized field, but the fact remains that they must respect copyright as regards the works that make up their collections. The mere fact of owning a collection of photos does not entitle the owner to make commercial use of that collection, either in part or as a whole.

In French law, copyright includes the right to reproduce the work (droit de reproduction) and the right to represent the work (droit de représentation), which includes showing it on television, in films, in books and in exhibitions. Article L 122 -3 of the Intellectual Property Law (Code de la Propriété Intellectuelle) stipulates that 'reproduction' includes 'printing, drawing, engraving, photographs, mouldings and all graphic and plastic techniques, mechanical, cinematographic and magnetic recording'. Article L 111-3 makes a clear distinction between the intellectual property of the creator of an object and the ownership of the object itself. The person who acquires an object enjoys none of the rights covered by Intellectual Property Law. This means that the owner of a photography collection cannot reproduce or in any way use the works in his or her collection without the express permission of the artist. Only the artist or his or her legal successors are entitled to reproduce or represent the works.

There are, however, two instances in which a collector can reproduce or otherwise use photographic works.
Firstly, in the case where the statutory period of protection has expired. According to article L 123 - 1 of the French Intellectual Property Law, the artist enjoyed the exclusive right to use his or her work in any form and to make material profit by it during his or her own lifetime. When he died, his or her legal successors would enjoy this same entitlement until the end of that same year and for fifty years afterwards. A new law introduced in 1997 extended the period of protection to seventy years following the end of the year of the artist's death. This means that collectors cannot make use of photographs, even very old ones, until seventy years after the photographer's death.
The second instance where collectors can reproduce photographs is specified in article L 122-5-2 of the Intellectual Property Law. It covers cases where 'the copy or reproduction is strictly intended for the private use of the copier and not intended for public use'. In other words, collectors can only reproduce photographs for their own personal use.
When a potential user approaches a collector with a view to reproducing a piece from a collection of photographs, the collector is bound by copyright law to inform the artist and to put him or her in contact with the user. It can happen that the collector does not know the name of the photographer. In this case, he or she is not entitled to use the photograph.
It is illegal for a collector to deal directly with a user without the express permission of the artist. Photographers should make every effort to ensure that their rights are respected so as to avoid irregular or illicit use of their work.
To summarize: it is illegal for a collector to use his or her collection for any purpose other than for his or her own private use.

Philippe Eschasseriaux,
Lawyer