French Court Copyright Law Ruling Threatens Art Market Price Transparency

Should a photographer of artwork for auction catalogs get royalties?

Lawrence Weiner "Lo and Behold" 2006

A French court has ruled that a French photographer of furniture for auction house catalogs has a claim for damages against artnet (parent company of artnet News) for violation of copyright with regard to photographs of furniture, owned by third parties, sold at auction and reproduced along with sales results in the artnet Price Database, the world’s most popular and comprehensive database for art, decorative objects and antique sales.

The French court decision overturns a previous ruling by a lower court in favor of artnet and the free use of images from auction house sales in conjunction with price and image database usage. artnet will defend itself against the new ruling and file an appeal with the French Supreme Court.

But the wider question remains: What will all of us in the international art world do if images of artworks offered for sale are subject to legal copyright actions such as this one? Database businesses will certainly be forced to raise subscription rates as a result of new copyright claims by photographers. What will auction houses do? What about exhibition catalogs for gallery shows?

Here are the facts from the current case: In October 2010 Stéphane Briolant, a French photographer of furniture for auction house catalogs, sued artnet for damages for violation of copyright with regard to photographs of furniture in the artnet Price Database. artnet did not know or believe that copyright laws were applicable to reproductive photography for auction sales, all made in the standard salesroom procedure for lighting, camera position, and object position as dictated by the nature of the object and the given purpose of selling an object by reproducing it in the auction catalog. Furthermore, auction catalogs do not include photographer credits for most of these photographs nor any reference to copyright. It is also worth noting that Briolant was and still is the only photographer who ever claimed copyright fees from artnet on top of the fees that he received from auction houses for his work.

We all know 3-dimensional objects can be photographed in many ways, leaving room for creativity; that is the basis of copyright laws, protecting works that require creativity. But the common sense exception of course is when the choices for the photographer are totally limited, and in fact imposed, by the purposes as given by the client auction houses who pay fees for services. Choice is the key word and to reinforce the point these kind of illustrative photographs by definition all look alike.

Nonetheless, Briolant went to Court and as mentioned already, his claims were dismissed, excepting in two individual instances in which the court decided he was deserving of copyright protection. We are talking about two photographs. Unperturbed he took his case to the next legal level and in court now he has been awarded damages relating to claims for 6,758 photographs along with costs amounting to a total of € 750,000, an amount that is without any connection to industry customs and economy.

The talk in France is about a crisis of the competent jurisdictions for copyright matters. How can two French courts come to diametrically opposed opinions based on the same laws, giving rise to a lack of legal security for businesses? The current decision appears to artnet to be a political statement by a court that wants to extend systematic copyright protection to any photograph, whether technical or a true work of art, and with no consideration of the economical impact thereof. However, should such an approach be legally grounded under existing French copyright law, which is unfortunately an open debate, in any event it would not be economically sustainable if the judges do not make a fair appreciation of the market value of those photographs. Unfortunately, and shockingly, this is not what the court did in this case, and it did not pay any consideration to artnet’s extensive arguments on this point either.

This reading of events is borne out by the fact that the French competitor of artnet, Artprice S.A. was sentenced to a similar amount by the same court and both companies were sentenced to publish the decision in French art publications as well as on their respective websites for an extended period of time.

Clearly existing laws leave enough room for diverging interpretations and one must hope that the laws will soon be defined more precisely and with present Internet publishing conditions in mind. Creative work must be protected in a way moreover that does not damage the economic foundations that provide the income to the creative community. Otherwise, yes, everyone looses–artists and photographers included.

In order to avoid future claims by Briolant, artnet had already taken the decision to remove all 6,700 auction lot images to which Briolant claims authorship from the artnet Price Database. Now large parts of the sales history of the auction houses for whom Briolant worked are no longer visible to users of the database. Will we go back to the dark ages prior to the introduction of the price database? Will price transparency be reduced or discontinued?

Auction houses are the main users of the database. What will they do if database businesses are forced to raise subscription rates as a result of newly invented copyright claims by photographers?

Price transparency for art and the unprecedented increases in price levels for artworks have become possible by the ability of the public to compare prices with images at any time. Today everyone relies on a functioning price database. The images in the price database are used for identification of the price only. They are not reproduced in their own right. artnet pays the artists rights societies in respective countries for the copyright of the artists—yes, the people who made the artwork in the illustrative pictures. What the artists get today is, we believe, fair and just remuneration negotiated on the basis of the overall economics of the system. Photographer Briolant has been awarded damages amounting to several hundred times as much by a court that obviously has not considered the consequences for an entire industry which happens to be very important in France!




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