Painer v Standard VerlagsGmbH
A portrait photograph can be protected by copyright as an original work, because the photographer makes free and creative choices in taking it.
Facts
Ms Painer, a freelance photographer in Austria, took photographs of a young girl, Natascha Kampusch. Some years later, the girl was abducted and held captive for eight years. During her captivity, newspapers published Ms Painer's photographs of her, and after her escape, they published a photofit image made from one of the photographs, showing what she might look like. Ms Painer sued for infringement of copyright.
Legal principle
The Court of Justice held that a portrait photograph can be protected by copyright, if it is the author's own intellectual creation, reflecting the author's personality and expressing his free and creative choices. In a portrait photograph, the photographer can make free and creative choices in several ways, such as the setting, the pose of the subject, the lighting, the framing, the angle of view and the atmosphere created. The protection given to a portrait photograph is not lower than that given to other works.
Related cases on copyright: subsistence, originality and authorship
- Cofemel Sociedade de Vestuário SA v G-Star Raw CV Case C-683/17, EU:C:2019:721
- Creation Records Ltd v News Group Newspapers Ltd [1997] EMLR 444
- Exxon Corp v Exxon Insurance Consultants International Ltd [1982] Ch 119
- Fisher v Brooker [2009] UKHL 41, [2009] 1 WLR 1764
- Football Dataco Ltd v Yahoo! UK Ltd Case C-604/10, EU:C:2012:115
- George Hensher Ltd v Restawile Upholstery (Lancs) Ltd [1976] AC 64
- Hadley v Kemp [1999] EMLR 589
- Infopaq International A/S v Danske Dagblades Forening Case C-5/08, [2009] ECR I-6569
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