Are your photographs protected? The answer comes frame by frame
Of 383 photographs reproduced without a contract, 24 were held to be original. Some lessons from a judgment of the Rennes judicial court of 3 September 2026, useful to photographers and to those who publish their images.
An event photographer consulted me this summer. For two years he had covered the seminars, the openings and the evening events of a company that organises trade shows. No contract, invoices paid, a cordial relationship. Then the collaboration came to an end, and the images went on being used: website, social media, brochures, right down to the visual for an exhibition stand. He arrived with a hard drive holding 600 files and a simple question: “all this belongs to me, doesn’t it?”
My answer disappointed him. Yes, he formally remained the owner of his rights, for want of a written assignment. But a large share of his images, taken on the fly in meeting rooms, was probably not protectable. And above all, it would be for him to show, image by image, what makes each one original, and therefore protected. A judgment handed down on 3 September 2026 by the Rennes judicial court illustrates exactly this point1.
A theme park, a photographer, 383 shots
The case pitted a freelance photographer against the company operating a medieval theme park and the association he had been working with. From late 2018 to 2020 he photographed the life of the project: board meetings, meetings with local authorities, building works, evening events, shoots of characters in costume, filming. The company published these images on its social media and in its communications. The parties discussed an assignment of rights, exchanged draft general terms and mentioned a fee scale, without ever signing. The photographer brought infringement proceedings over 383 photographs, eleven videos and a logo, and claimed €66,720 in respect of his economic and moral rights.
The court examined the 383 shots one by one. It held only 24 of them to be original, found that those 24 images had been published without a written assignment, and ordered the company to pay €2,946.75 in damages. Everything else was dismissed: the claims relating to the other 359 photographs, the videos, the logo, the claims concerning the photo credit, the moral prejudice and the publication of the judgment.
A photograph is a work… if it is original
The Intellectual Property Code protects “all works of the mind, whatever their kind, their form of expression, their merit or their purpose”, and expressly mentions photographic works2. The right arises from creation alone, with no registration or formality3. But the law does not protect just any image: there must be an original work, that is to say, in the wording adopted by the court, the “fruit of the creative effort of its author, the expression of his free and creative choices and bearing the imprint of his personality”.
For a photograph, those choices may be made at three moments: before the shot (staging, lighting, placing of objects, provided it is proved that the photographer did the placing), during it (framing, angle, contrast, play of shadows, choice of lens, filter and shutter speed) and after it (retouching, cropping, colour treatment). Here the court takes up, almost word for word, the grid the Court of Justice of the European Union laid down for photographs in the Painer judgment4.
The limit is clear: “copyright does not protect the mere application of know-how, where the photographer confines himself to purely technical services”. Where the photographer’s person recedes behind the technique, behind the object photographed or behind a third party’s instructions, there are no longer any free choices, and so no longer a work.
How the courts apply these criteria
The judgment is worth reading for its examples. Held to be original: the portrait of a founder shot from below, sharp, towering over blurred interlocutors; two pilgrims in costume on a forest path bathed in mist, “without any need to summon up The Lord of the Rings”; a landscape chosen under snow; a pirate shot from below beneath a glass roof suggesting an upturned hull; a child caught in close-up mid-expression; a figure seen from behind, bent over a staff, crossing an underpass towards the light; a cabin at the edge of a lake, twice, for its framing and its contrasts.
Rejected: the meetings, the tables of guests, the signing of documents, the building works, the evening events, the posed portraits, the still lifes, the photographs of a kid goat, of a welcome sign or of a plush mascot. The reason returns like a refrain: “nothing distinguishes these shots from others taken at the same moment by someone else”. The court is equally wary of justifications constructed after the event: a table of guests presented as a “pop rereading of Da Vinci’s Last Supper” strikes it as “somewhat convoluted and contrived after the fact”, and several references to Tolkien fail to convince. Originality, it recalls, “must lie not in the subject but in the work itself”.
Two procedural points are worth noting. The company had applied for the appointment of an expert to sort the photographs: this was refused, since “it is for the court alone to assess whether a work is original, which it cannot delegate to an expert”. It had also challenged, in its submissions on the merits, the photographer’s standing to sue: the court does not address that plea, because an objection of inadmissibility falls within the exclusive jurisdiction of the pre-trial judge, who had pointed this out twice. A copyright case can also turn on points of pure procedure.
The burden of proof lies with the photographer
This is the central lesson, and the most uncomfortable one for my photographer clients. The court checks, in each case, that the image is indeed its author’s own intellectual creation, “but it is also and first of all for the party claiming copyright protection to establish the originality of the work”. No global assessment of a photo essay. No presumption drawn from the photographer’s professional standing. Each shot must come with an explanation of the choices that set it apart.
In the Rennes case, the photographer had produced two volumes of “commentaries” on his images. For most of the rejected shots, the court notes that these commentaries “merely describe the scene photographed and the techniques used” and “do not make it possible to grasp the arbitrary choices made”. Describing what one sees, or listing the focal length and the shutter speed, proves nothing. One has to say what one wanted, what one decided, and why the result would have been different through another photographer’s lens.
Litigating over 383 images when some thirty are defensible dilutes the case, wears out the court’s patience and costs a great deal in exhibits. Here the claim for €66,720 rested on a table the court found “particularly obscure”, for want of consistent numbering and of a fee scale in the file (the SAIF scale was relied on but not produced). The court therefore kept to the “final prices” the photographer had himself stated for each batch, pro rata to the images upheld. Hence €2,946.75.
Paying the photographer’s invoice transfers no rights
For the company that commissions and publishes the images, the decision is a classic but costly reminder. The invoice paid to the photographer remunerates the service; as a rule it does not transfer copyright. Any reproduction or communication to the public made without the author’s consent is therefore unlawful, and an assignment of rights is valid only in writing, each right assigned being separately set out, with its scope, its purpose, its territory and its duration. The parties had a draft set of general terms providing for an assignment “for the whole world”; they never signed it. For the 24 original photographs, infringement was accordingly found and sanctioned.
It would be imprudent, however, to conclude that the other 359 images are “free” of rights. The court is careful to state that “even in the absence of copyright protection, the use of a photograph without remunerating its author may cause him a loss of earnings”, recoverable on the basis of civil liability, and more precisely of unfair competition. If the claim failed in this instance, it is because the services had been commissioned and paid for. A business that reused a professional’s photographs without paying anything would expose itself to that second basis and to an award such as the one made some time ago in another case by the same Rennes judicial court5.
LAZULI advises photographers, studios, communication agencies and the businesses that commission images: drafting assignment agreements, auditing current uses, cease-and-desist letters and negotiation, infringement proceedings before the competent judicial courts.
These analyses are general; every situation depends on the documents and on the contract, and must be examined case by case.
Jérémie LEROY-RINGUET, September 2026
- TJ Rennes, 2nd civil chamber, 3 September 2026, case no. 21/07228. An appeal against this decision cannot be ruled out. ↩︎
- Articles L. 112-1 and L. 112-2, 9° of the Intellectual Property Code ↩︎
- Article L. 111-1 of the Intellectual Property Code ↩︎
- CJEU, 3rd chamber, 1 December 2011, Painer, C‑145/10, paragraphs 90 to 94 ↩︎
- TJ Rennes, 6 May 2024, case no. 22/01433. See also TJ Rennes, 31 March 2025, case no. 23/05205, for a decision dismissing both infringement and parasitism ↩︎
