In a recent case before the Paris Court of First Instance and subsequently appealed to the Court of Appeal, an influencer named Mercredie brought a claim against the French fashion company Maje. Mercredie’s claim was for copyright infringement and ‘parasitisme’ (the French equivalent of passing off). However, this article focuses on the copyright related aspects of the case.
The facts of the case
Mercredie, an influencer of some renown in France, filed a court action against Maje, alleging that the company had infringed her copyright by copying a selfie that the influencer had taken inside a lift without her authorisation. She claimed that these photographs were distinguished by their unique framing, distinctive poses, and the presence of a dog in one hand, collectively representing her intellectual creation. Mercredie also argued that the model chosen by Maje had a striking resemblance to her, further enhancing her claims.
The Decision at First Instance
The Court dismissed Mercredie’s copyright claim but upheld her claim for unfair competition.
The Court of Appeal's Decision (Available only in French)
The Court of Appeal determined that Mercredie's photograph lacked the required distinctiveness, pointing out that similar "lift selfies" had been taken by influencers before her. To substantiate her copyright claim, Mercredie needed to prove the uniqueness and originality of her work, which, according to the French Intellectual Property Code, was not sufficiently established. The court also said that Mercredie was not able to base originality purely on the fact that some of her followers thought it was her in the advertisement.
Before the appeal court, Mercredie also had to amend her claim to contend that one of her Instagram stories from 27 July 2018 was the specific photograph Maje allegedly infringed. However, the Court of Appeal rejected this, emphasising the temporary availability of an Instagram story, which limits its reach and impact. Additionally, the court questioned the size of Mercredie's following, further weakening her case.
As a result of the court's findings, Mercredie's case was dismissed, and she was not awarded any damages. The court's decision highlights the importance of substantiating claims of copyright infringement with concrete evidence and demonstrating the originality of the work in question.
The Approach in the UK
In the UK, the concept of originality is based on whether the author has created the work through their own skill, judgment and individual effort without directly copying existing works.
Although a French case, a similar claim could be brought in the UK as a matter of principle. The courts have said that it is possible to infringe copyright in a photograph by recreating a scene that had been photographed, when the skill and labour of the author (i.e., their intellectual creation) went into creating the scene that was photographed in the first place. This is what happened in the English case of Temple Island Collections Ltd v New English Teas, where the court held that the idea of putting together iconic images, such as the Houses of Parliament, Big Ben and the London red bus (the Routemaster) was an intellectual creation in terms of the way the photograph had been composed.
The case serves as a reminder that the scope of intellectual property law is constantly evolving, especially in the age of social media. Content creators and brands must be proactive in safeguarding their rights and take note of this case's valuable lessons to protect their creative work effectively.
When dealing with copyright matters, consulting with experienced intellectual property lawyers is essential. Our Intellectual Property Disputes team can provide advice, assist in gathering evidence, and raise proceedings to protect your rights if necessary.
This article was co-authored by, Yaser Razouk, Trainee, Property & Infrastructure