Key facts of the case:
Ms Painer is a freelance photographer, photographing, in particular, children in nurseries and day care centres. In the course of her work, she took several photographs of Natascha K. (choosing the background, deciding on the pose and facial expression, and producing and developing those photographs).
After Natascha K., then aged 10, was abducted in 1998, the Austrian police launched a search appeal for which Ms Painer’s photographs were used.
Following the young girl’s escape and prior to her first public appearance, five newspaper publishers, four German and one Austrian, published those photographs in certain newspapers1 and known websites without, however, indicating the name of the photographer, or indicating a name other than Ms Painer’s as the photographer.
Several of those publications also published a photo-fit, created by computer from those photographs, which, in the absence of a more recent photograph of the young girl until her first public appearance, represented her supposed image.
Since Ms Painer considered that those photographs infringed her copyright, she applied to the Austrian courts for an order that the publishers immediately cease the reproduction and/or distribution, without her consent and without indicating her as author, of the photographs and photo-fit. She also sought the payment of appropriate remuneration and damages.
The Handelsgericht Wien (Vienna Commercial Court (Austria)), before which the proceedings were brought, asks the Court of Justice whether European Union law confers inferior copyright protection on portrait photographs because they are ‘realistic images’ and the degree of artistic freedom is limited. In addition, the Austrian court seeks to ascertain the conditions under which such photographs can be used by the media, without the photographer’s consent, for the purposes of a criminal investigation. It also asks the Court to clarify the conditions in which a protected work can be quoted.
Results (sanctions) and key consequences of the case:
The Court (Third Chamber) hereby rules:
- Article 6(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as not precluding its application solely because actions against several defendants for substantially identical copyright infringements are brought on national legal grounds which vary according to the Member States concerned. It is for the referring court to assess, in the light of all the elements of the case, whether there is a risk of irreconcilable judgments if those actions were determined separately.
- Article 6 of Council Directive 93/98/EEC of 29 October 1993 harmonising the term of protection of copyright and certain related rights must be interpreted as meaning that a portrait photograph can, under that provision, be protected by copyright if, which it is for the national court to determine in each case, such photograph is an intellectual creation of the author reflecting his personality and expressing his free and creative choices in the production of that photograph. Since it has been determined that the portrait photograph in question is a work, its protection is not inferior to that enjoyed by any other work, including other photographic works.
- Article 5(3)(e) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, read in the light of Article 5(5) of that directive, must be interpreted as meaning that the media, such as newspaper publishers, may not use, of their own volition, a work protected by copyright by invoking an objective of public security. However, it is conceivable that a newspaper publisher might, in specific cases, contribute to the fulfilment of such an objective by publishing a photograph of a person for whom a search has been launched. It should be required that such initiative is taken, first, within the framework of a decision or action taken by the competent national authorities to ensure public security and, second, by agreement and in coordination with those authorities, in order to avoid the risk of interfering with the measures taken by them, without, however, a specific, current and express appeal, on the part of the security authorities, for publication of a photograph for the purposes of an investigation being necessary.
- Article 5(3)(d) of Directive 2001/29, read in the light of Article 5(5) of that directive, must be interpreted as not precluding its application where a press report quoting a work or other protected subject-matter is not a literary work protected by copyright.
- Article 5(3)(d) of Directive 2001/29, read in the light of Article 5(5) of that directive, must be interpreted as meaning that its application is subject to the obligation to indicate the source, including the name of the author or performer, of the work or other protected subject-matter quoted. However, if, in applying Article 5(3)(e) of Directive 2001/29, that name was not indicated, that obligation must be regarded as having been fulfilled if the source alone is indicated.