Gered Mankowitz took some of the best pictures of Jimi Hendrix in the 60’s. One of them is up for dispute in France. Seems that a company that makes electronic cigerettes obtained rights to a classic Hendrix portrait, retouched the cigerette in the photo and replaced it with an electronic cigerette. Mr. Mankowitz sued and LOST!!
The advertiser argued that there could not be any infringement or violation because the photograph was not original. Under French law, photographs are treated like all other works of art: they are protected provided that they are original, which courts interpret to mean that the work must “reflect the artist’s personality.
Mankowitz argued as such:
This extraordinary and equally rare photograph of Jimi Hendrix manages to capture, for a very short moment, the striking contrast between the lightness of the artist’s smile and of the curl of smoke and the blackness and geometrical rigor of the rest of the image, created notably by the lines and right angles of the bust and arms. The capture of this unique moment and its enhancement through the light, the contrasts and the narrow frame focused on Jimi Hendrix’ bust and head reveal the ambivalence and contradictions of this legend of music. As a result, this photograph is a fascinating and highly beautiful work which reflects its author’s personality and talent.
The court’s response:
First, the Court held that art can have artistic merit without being original, and therefore the artistic merit of this photograph did not necessarily mean it was original. Second, the Court held that the key inquiry is whether the photograph reflects the personality of the photographer. By contrast, the photographer’s statements about Jimi Hendrix’ ambivalent personality were not relevant.
Finally, the Court held that the framing, background, and the choice of black and white were fairly common for this type of portrait. The photographer therefore was obliged to explain the choices he made in relation to the posture of the subject, his costume and general attitude. The Court found that, since the photographer failed to give sufficient explanations about these choices, he failed to establish that his photograph was original.
YIKES!!!
I guess we are lucky we don’t live in France. They don’t seem to get it at all.