|The original portrait by Mankowitz|
Fast forward to June 2017…
Besides, this case is interesting insofar as the Court of Appeal took into consideration the reputation of the photographer to determine originality. It is not the first time that French courts consider the reputation of the original author relevant for the application of copyright law. While it is undeniable that the portrait of Jimi Hendrix is original, one might wonder whether French courts believe that well-known works are more deserving of copyright protection than others. As this blogger is currently turning her thesis on the parody exception into a monograph, some French decisions directly come into mind. For example, in Société Moulinsart, Mm Fanny R. c/ Eric J. (decision in French here), the TGI Paris refused the application of the parody exception where the defendant depicted the famous comic character Tintin in scenarios being the antithesis of the world created by its author, Hergé. Although attempting to refrain from assessing the work’s artistic merits, French courts seem less lenient where a parody comments a work considered to be part of the cultural heritage, even if the rules of the genre appeared to be respected.
Finally, the use of the Jimi Hendrix’s portrait was for commercial advertising purposes. Given the context and the captions joint to the reproduction of the work, consumers could have been led to believe that the use had been authorised or the products endorsed by the right-holders. Therefore, the Court of Appeal was correct in deciding that the use of works for commercial advertising purposes, even if these are altered, should require permission. And this, even if the use had been for a parodic purpose…”