Photographers must generally obtain consent before selling images featuring design items, French court rules

UK courts might have come to the same conclusion in the UK because of the iconic nature of the designs involved, an intellectual property expert has said, but in most cases photographers do not need to worry about being sued by the designers of items included in their photos, except in the case of artistic works.

The French Court of Appeal ruled that photographers must obtain the authorisation of designers before selling images if they feature designer items other than as mere accessories, according to a report by the British Journal of Photography (BJP).

The Court was ruling in a case involving picture agency Getty Images and two individuals – Pernette Martin-Barsac and Jacqueline Jeanneret Gris – who own moral and hereditary rights to the designs of "iconic" armchairs and sofas, according to the report.

The lawyer representing Martin-Barsac and Jeanneret Gris said Getty had sold images featuring the furniture without the consent of his clients.

"These iconic objects are associated with the ideas of quality, comfort and luxury. And often, we see marketing agencies use them to promote computers, alcohol or even financial products. They try to associate the values these objects have with what they're selling. And, the French courts have found that you can't reproduce a work of art without authorisation," the lawyer, Dominique de Leusse, said, according to the BJP report.

"Getty Images is selling images representing these objects without authorisation and without mentioning the names of the rightful copyright holders. The designers' heiresses don't want to see these objects become commonplace," de Leusse said.

Getty has appealed against the ruling.

Kim Walker, expert in copyright law, said that in the UK copyright protection for furniture designs is very limited and only works of 'artistic craftsmanship' are protected.

"Although there are exemptions from infringement if a copyright work is included only incidentally in a photo, it seems that the furniture was a main feature of the photos so that exemption wouldn’t apply," Walker said. "However, Getty would probably have tried to argue in the UK that copyright doesn't generally protect industrially produced articles like furniture".

"It is only if a piece of furniture qualifies as a work of 'artistic craftsmanship' that it could be protected by copyright here.  If it is not – and the threshold for qualification as such is quite high - then copyright won’t protect the furniture design and the designer will have to rely on design rights instead," said Walker. "Not only do they not last as long as copyright, but merely selling a photo of the furniture would not in my view infringe the design rights in the furniture."

"I understand that some iconic furniture designs were involved so it may well be that this would be one of the fairly rare cases where the furniture could be said to be works of artistic craftsmanship and so copyright protected," said Walker. "This would mean selling photos of the furniture would infringe, But even then Getty may have a way out in the UK because if the furniture has been industrially produced meaning more than 50 copies are made,  then copyright protection will only last for 25 years from when they were first marketed, so the copyright may well have expired by now."

"I understand that the furniture designers also claimed their moral rights were infringed because the designer's name was not identified on the photos. This would only apply in the UK if the designs were found to be works of artistic craftsmanship and the right had been properly asserted", said Walker."

In the UK designers can gain a monopoly right to the appearance of the whole or part of a product based on its features including the lines, contours, colours, shape, texture and materials used, or its ornamentation. This can be done by registering designs with the Designs Registry.

The Designs Registry will only allow designs to be registered for protection if they are new and have individual character. Designers can obtain up to 25 years worth of protection over registered designs, although the protection has to be renewed every five years.

Designers also have certain rights over unregistered designs in the UK. The rights apply automatically after designs after been created but the scope of protection only applies to direct copying of any aspect of the shape or configuration, whether internal or external,  of the whole or part of a design. Designers are protected for either 10 or 15 years in respect of unregistered designs depending on when products are first made available for sale or hire.