Portrait Not Less Protected under Copyright

On 1 December 2011, the Court of Justice of the European Union (“ECJ”) adopted a judgment in case C-145/10 Eva-Maria Painer v. Standard Verlags GmbH, Axel Springer AG, Süddeutsche Zeitung GmbH, Spiegel-Verlag Rudolf Augstein GmbH & Co KG and Verlag M. DuMont Schauberg Expedition der Kölnischen Zeitung GmbH & Co KG. The ECJ judgment confirms that portrait images, if they qualify for protection, deserve the same scope of protection as any other copyright protected work. In addition, the ECJ addressed the issue of suing a defendant outside his home territory.

The case at hand concerned the portrait photographs that Ms. Painer took of the young Natasha Kampusch before her abduction. When Ms. Kampusch escaped from her abductor aged 18, and before she appeared in the public for the first time, various media used the portrait of the 10-year old Natasha to report the escape. In addition, various newspapers created a “photo-fit” of what Ms. Kampusch might look like in 2006, which was – according to Ms. Painer – based on her portrait of Ms. Kampusch as a 10 year old.

Ms. Painer claimed that the portraits of which she was the author had been used and adapted without her authorization and without an acknowledgement of her authorship. The Austrian court (Handelsgericht Wien), which heard the claims brought by Ms. Painer against various Austrian and German newspaper and magazine publishers, referred a number of questions to the ECJ for a preliminary ruling.

First, the ECJ was requested whether a portrait, which – according to the referring court – requires a lesser degree of originality, is subject to narrower copyright protection. The ECJ maintained that the substantive creative requirement for copyright to apply was that the work should be the “author’s own intellectual creation”. If a portrait photograph qualifies for copyright protection through the free and creative choices in the production of the photograph, its protection is the same as that enjoyed in any other work.

Next, the ECJ assessed whether the defendants could rely on Article 5 (3) (d) or (e) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society (“Directive 2011/29/EC”) to use the copyright protected work without the author’s consent and without indicating her as the author of the work. These provisions allow Member States to adopt exemptions from the rights of the author for criticism and review (Article 5 (3) (d) of Directive 2011/29/EC) and for the purposes of public security (Article 5 (3) (e) of Directive 2011/29/EC).

The ECJ held that the exception for “criticism and review” still requires identification of the author, but stated that photographs could be used for the purposes of public security without the consent and without indicating the author. Nevertheless, the ECJ pointed out that only the competent public authorities are responsible for ensuring public security by appropriate measures including, for instance, initiating a public search for missing persons using a photograph. In this task, the public authorities may rely on media to spread the search picture. However, newspaper publishers cannot on their own initiative use a work protected by copyright invoking an objective of public security. The use must always be by agreement and in coordination with the public authorities. In such circumstances, the publisher must not indicate the name of the author if it mentions the source of the work (e.g., the public authority which disseminated the photograph in the context of a public search for a missing person).

It results from the ECJ judgment that the defendants in the case at hand cannot rely on an exception for public security under Article 5 (3) (e) of Directive 2011/29/EC when using the portrait photographs at issue to report the escape of Ms. Kampusch.

In addition, the referring Austrian court submitted a question on the referring court’s jurisdiction with respect to the German defendants. Article 6(1) of Council Regulation No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters provides that a person (including a legal person) may be sued “where he is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings”. The ECJ clarified that even if the legal grounds vary according to the Member State concerned, the defendants from different Member States could be sued before the same court if there is a risk of irreconcilable judgments being handed down.