French Mugshot from 1938 Copyright Law

'Is it legal', 'can I do this' type questions and discussions.
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raphael.cormack
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French Mugshot from 1938 Copyright Law

Post by raphael.cormack »

Hello,

Not sure if anyone knows about French copyright law. I am looking to use a mugshot taken in 1938, which is currently held in the national archives of France. The National Archives have no restrictions on use but I don't know about the underlying copyright - considering that I don't think I have the ability to track down whoever it might have been in the policestation in Nice who was taking that mugshot and then find their relatives.

If it was taken as part of a job as a policeman is the photo state property? It is unclear to me.

Any leads much appreciated.

Thanks
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AndyJ
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Re: French Mugshot from 1938 Copyright Law

Post by AndyJ »

Hi raphael and welcome to the forum.

French law provides for a term of protection for a copyright work of the lifetime of the author plus 70 years* from the end of the year in which he or she died. Obviously the person who took the mugshot is almost certainly dead now, but copyright in their image may well still be in force unless they died before 1954. There is one possibility which might apply in this instance. Following the interpretation of the European Court of Justice (CJEU), a work is only eligible copyright if it is deemed original. Put simply this means it must be the creative product of the author's mind (un oeuvre de l'esprit) and reflect his/her personality. It follows from this that a photograph taken by a speed camera is not eligible for copyright because there was no human creativity involved in making the photograph. Correspondingly, it could be argued that the formulaic nature of a mugshot may mean that the process of taking the photograph lacks sufficient creative input from the camera's operator. However I don't know of any case in the French courts where this interpretation has been accepted.

Even if the person was an employee of the state, under French law that makes no difference to the duration of copyright (contrast this with US law where a work made by a Federal employee in the course of their work is not subject to any copyright at all). What it would mean is that the copyright would belong to his employer, and the photographer would retain no economic rights in the image which he had taken in the course of his employment. So, even thought there is very little chance of identifying the photographer, and thus establishing when he died, you can merely seek permission to use the image from the putative present day owner of the copyright (I suggest you could approach the Ministry of the Interior)





* To be strictly accurate, at the time when the photograph was taken the term was the author's lifetime plus 50 years after death, but this was extended to 70 years by an EU Directive on 1995.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
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