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52                                    FIRST PART

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ARTISTIC PROPERTY, PHOTOGRAPHY: 1º and 2º PRODUCTS,
ARTISTIC NATURE, WORKS OF ART, ASSESSMENT; 3º and
4º COUNTERFEITING, REPRODUCTION OF NEGATIVES; 5º COPY, NEW
PRODUCT, MODIFICATIONS.
      The products of photography are not, in a general and absolute
manner, creations of the mind or genius, in the sense of the law of 19 July
1793 (1);
      But it is up to the judges before whom property in photographic works
(especially if these are portraits) is being claimed against the reproducers
of these, to declare, by a statement which must necessarily have absolute
authority, whether the products submitted for their examination do not, in
regard of the conditions in which they have been created, possess the nature
of artistic productions which the provisions of the said law protects against
counterfeiting (2).
      A photographer, though he may not dispute the right which others have
to reproduce directly by photographic means the image of the same persons and
objects, is nevertheless entitled to prevent the reproduction of the portraits and
images which he has taken and turned into his special property by giving it an
artistic value (3);
      It is not even necessary, for justifying the legal proceedings which
he may institute against counterfeiters, that he should provide evidence of having
received permission to exploit these portraits from the persons whose image he has
reproduced or from the families of the latter (resolved by the Imperial
Court) (4).
      The reproduction of a photographic portrait in disregard to the rights
of its author does not cease to be an act of counterfeit just because certain
accessories happen to have been modified; and the decision which rejects, as a result
of taking into account this right, the reproducer's claim that he had created a
new portrait, effectively recognizes
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      (1 and 2) The question resolved in the above summary presented itself for the
first time before the Court of Cassation; its interest was all the greater, given
that it was concerned with a new profession whose legal regulations have so far been
indicated only with the help of comparisons whose accuracy is sometimes questionable.
Two equally absolute systems were present: one which considers photography to be a
purely industrial profession; and another which does not hesitate to see in it a new
branch of art. The Court of Paris, and after it the Court of Cassation, in its decision
to reject the appeal which is recorded above, pronounced themselves in favour of an
intermediary solution which admits merely that photographic products can, in certain
cases of which the law-courts must necessarily be the paramount arbiters, be regarded
as creations that are protected by the provisions on artistic property. This inter-
pretation can be justified in certain respects: if the objection is made that in
accordance with the ideas which prevailed when including the products of photography
in our great exhibitions, the law has classed photography amongst those industries
which are subject to patent, amongst those which are exercised with the help of
journeymen or apprentices, then one can reply to this that the industrial nature of
the procedure which is used to reproduce an image an unlimited number of times is
not sufficient to allow one to deny that the first capture [obtention] of this image,
that is the creation of the photographic negative [cliché], has the character of an artistic
creation; and, indeed, our case law has regularly admitted that models which are
handed over to industry so as to be multiplied by mechanical means can have the
value of artistic creations and should therefore be protected against counterfeiting.
      In practice, however, this intermediary solution is full of inconveniences, and
it is perhaps to be regretted that the Court of Cassation, in rejecting comparisons,
did not pronounce a clear-cut decision on the invalidity of applying the laws on
artistic property to photography, leaving it to the legislator himself to regulate
property in photographic productions. We are dealing here with an area of criminal
law where everything ought to be clear and precise, and where it is not right that
people should be exposed to the risk of committing an offence without realizing it.
In painting, sculpture, and engraving everything stems from man's labour, conception
and execution; there is no excuse for counterfeiting in these. But in photography,
where one proceeds gropingly [par tâtonnements] in order to choose between a number
of negatives, success does not necessarily always imply a truly decisive intervention
by intelligence and discernment: to make out in a photographic production what is
due to the instrument, what is due to the physical circumstances, and what is due
to the operator of the camera, is not easy for the man in the street; and it is not
always easy even for the law-courts, in spite of all the means which they have at
their disposal for informing themselves adequately. Now, to subordinate the existence
of an offence to an assessment which the defendant was himself not in a position to
make, and which is to be made retrospectively by the judges on the basis of facts
which more often than not are arbitrary and uncertain, is something that goes against
all the principles of criminal law [...]