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Chapter 1 Page 1

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 [...]

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COURT OF CASSATION                                    53
the insufficiency of the modifications which the latter avails himself of, in
order to avoid being accused of counterfeit (1).

(Betbéder and Schwalbé v. Mayer and Pierson.)

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      In support of the principal argument of the appeal, Me Hérold attempted to show that
photographic products are not to be counted among the creations whose counterfeiting
is punished by the law of 1793: « In the legal sense », his general argument ran,
« the character of ‘art’ resides in the nature of the object produced. The work of
art belongs to particular categories and fulfils particular conditions. These
categories are indicated both in articles 1 and 7 of the law of 1793, and in the
meaning given to the phrase the fine arts in everyday language: the fine arts
include music, painting, sculpture, architecture, engraving, and drawing. As for
the conditions, the principal one, or more properly the only one, is indicated in
article 7 of the same law. The work must be « a production of the mind or of genius »,
that is, it must emerge from the artist himself, be original, and constitute a
creation. And this is, indeed, logical: without this quality, the work of art would
merely be a new copy, a reproduction, the double of an older work. Art is thus
creation in the fields of music, painting, sculpture, architecture, engraving, and
drawing. — The contested decision introduces a distinction that cannot be accepted,
whereby photographic products may, if not always then at least in certain cases to
be determined by the judge, be deemed to have the characteristics of art. What the
ruling takes to be the characteristics of art consist in reality merely in the
perfection of execution, which does not change the character of the work. In this
respect, the ruling confuses the aesthetic and the legal senses of the word art.
While the decision is right to distinguish between photographic products on a case-by-
case basis, it is wrong to number these among the works protected by the 1793 law,
which takes no account of the greater or lesser perfection of works; if the decision
is right to count photographic products among the works protected by the 1793 law,
it is wrong to take account of the greater or lesser degree of perfection, and must
henceforth recognise the artistic character of all photographic works. The ruling
cannot escape this dilemma. — Ought we then to accept that all photographic products
are works of art? This appeal answers no. No, because photography is neither painting,
nor drawing, nor engraving, nor sculpture, nor architecture,

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54                                    FIRST PART
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because it cannot be counted among what the law and everyday language call the fine
arts. No again, since photography lacks the qualities which are necessary to constitute
a work of art: it is not a creation, does not have originality, is not an individual
emanation of the artist.
      « Is photography thus deprived of protection? Not at all. The general principle of
article 1382 could, in many cases, be invoked by photographers. Should this remedy prove
insufficient, there would still be no reason to force the terms of the 1793 law; rather,
a new law would be necessary. — But let us not exaggerate things, and believe that art
is under threat because some photographers might be borrowing amongst themselves. —
Photography is very useful, to science, to art; but it is not in and of itself a branch
of art. Its place among the fine arts would be ill-gotten. » — In support of this last
opinion, Me Hérold read a declaration signed by members of the Academy and eminent
artists, which we feel obligated to reproduce:— « Considering that the law-courts have
recently been concerned with deciding whether photography ought to be likened to the
fine arts, and its products protected equally with the works of artists; - Considering
that photography consists in a series of purely manual operations, the requisite actions
of which doubtless require some practice, but that the resulting proofs may not under any
circumstances be likened to those works that are the fruits of the intelligence and of
the study of art; - For these reasons, the undersigned artists protest against the likening
of photography to art. » — (There follow the signatures of Messrs Ingres, Flandrin, Robert
Fleury, Henriquel Dupont, etc.)
      Me Rendu fought this argument and requested that the appeal be rejected, in the names
of the plaintiffs, Messrs Mayer and Pierson:— « Artistic property », he claimed in short,
« is regulated by the law of 19 July 1793 and by articles 425 and 427 of the penal code.
These provisions were doubtless unable to anticipate all the conquests man would eventually
make in the domain of art; art, like its object, is infinite; but they nevertheless took
the future into account, for they speak of « all productions of the mind or of genius » as
belonging to the fine arts, and guarantee in advance to the author of such works an exclusive
right of reproduction. — The Court of Cassation has recognised these provisions of law as
having the widest possible reach. The Court has, by numerous rulings, rejected a distinction
that is no doubt dear to certain elite artists, and which may be valid from a purely
speculative point of view, but which is inexact in reality and inadmissible from a legal point
of view: the distinction between ‘the arts properly speaking’ and ‘the industrial arts’. In
the current state of our civilisation, it has become necessary to recognise that any work
which in its form and figure bears the mark of the personality of its author, that any work
worthy of being called a production of the human mind, is legally a work of art, whether it
be reserved for the admiration of people of taste, or applied in industry to advance or
prettify it. — In order for something to be a work of art, what is required? The meeting of
two elements: a creation of the mind, and an object belonging to the domain of art. The mind
and taste may be in operation in certain professions without these professions being considered
arts, since their object does not belong to the domain of art. Conversely, were artistic
objects, legitimately called so by virtue of their form and even beauty, hypothetically the
dumb and inevitable product of a pure mechanical process, they would no longer be creations of
the mind, nor, consequently, works of art. Since photographic proofs combine these two
elements, I maintain that they are works of art because they are at once, to a large extent,
artistic objects by virtue of their marvellous outward aspect, and creations of the mind by
virtue of the application of the faculties that their production requires, and the artistic
sentiment they exhibit. »
      Having maintained that photography offers to the operator numerous opportunities to employ
taste and all the delicacies of artistic sentiment, Me Rendu added:— « It is interesting to
appreciate the number of trials arising from the application of these truths! Portraiture was
in the dock with Cavour and Palmerston. Seeing this abandoned pose, that subtle smile of the
great Italian, this rigidity of bearing and that restrained irony of the illustrious Englishman,
one recognised the suppleness, the witty bonhomie, the incomparable ease of the former, amid
imposing complications; the languor, the tenacity, the haughtiness of the latter. These two
portraits are, one must admit, history. — If we attempt to ascertain how much of this is owed
to the artist and how much to the instrument, we will be forced to acknowledge that the lion’s
share is with the artist. Painters, sculptors have assistants, without relinquishing the
personality of their works. How many celebrated frescoes does tradition tell us were created
with the aid of assistants? They are nonetheless the works of the painters who conceived them!

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Photographic images, too, have their inspiration. This inspiration belongs entirely to the
artist, and the sun is merely his compliant and splendid collaborator! — Let us then give the
mind its rights and limit the equipment to its proper role. It appears that there is a reliable
criterion for judging this matter. The work of a machine may be identified by its uniformity.
The work of man is identifiable by its variety, its diversity, its progress. Now there is
infinite variation between the products of the same camera, directed at the same individual, by
different photographers. If photographic portraits of the same person exhibit such a difference
in artistic value, that is because the photographer puts into the portrait the mark of his
personality. — And indeed, this artistic sentiment is so integral to photography, so essential
to its success, that all the elite photographers are painters or sculptors. More than once, our
most eminent artists have enlisted the help of photographers in their compositions, and it is
somewhat surprising to find, in a petition of famous painters against the pretensions of
photography, the names of certain individuals who have nevertheless deigned to reproduce
photographic portraits obtained by my clients. — The time has come to establish a principle
which will halt immediately such scandalous plundering, and which will prevent imitators from
seizing these images, these portraits, these galleries that have been obtained at the cost of
such study, such effort, such sacrifice by our renowned photographers. Is it not painful to see
the shameless plundering of those marvellous images won in the summits of the Alps, among the
heights of glaciers, by the intrepid and talented Bisson brothers? Only the preventative
counterfeiting laws have the necessary energy to discourage such attempts. Your judgement will
apply those laws in letter and spirit, with firmness, in supporting and reinforcing the
principles established by the contested decision. »

DECISION
      THE COURT;— With regard to the first argument, which alleges the erroneous application
of articles 1 ff. of the law of 19 July 1793, and art. 425 of the penal code, in so far
as the contested decision considered these articles to be applicable to photographic productions:—
Whereas it follows from the combination of art. 1, 3, 6, and 7 of the law of 19 July 1793 that the
literary and artistic property, whose exclusive right this law acknowledges and protects, is that which
has as its object a production of the mind or of genius belonging to the fine arts; and the law,
having provided no definition of the characteristics which constitute an artistic product as a
creation of the mind or of genius, it is up to the case judge to declare, by a determination which must
necessarily have supreme authority, whether the product submitted to his consideration may by its
nature be counted among the works of art protected by the law of 19 July 1793;
      And whereas the contested decision begins by postulating the principle that photographic
images « must not necessarily and in all cases be considered devoid of all artistic character,
nor counted among purely material works; that these images, although obtained by the use of a
dark chamber and the influence of light, may indeed, to a certain extent and degree, be the
product of the thought, of the mind, of the taste, of the intelligence of the operator; » that
the decision specifies and details the circumstances and conditions which, left to artistic
sentiment, « may give to the photographer’s work the mark [l'empreinte] of his personality, such
as the choice of angle, the combination of the effects of light and shade, in the reproduction
of landscapes, and additionally with portraits, the pose of the subject, the arrangement of
costume and props; » and, moving finally to the consideration of the specific products made by
Mayer and Pierson and constituting the object of the counterfeiting suit, the ruling declares
that, since they exhibit the various characteristics detailed above, the portraits of the Comte
de Cavour and of Lord Palmerston may be regarded as artistic productions, and must therefore
benefit from the protection accorded by the law of 1793 to the works of the mind and of genius
belonging to the realm of the fine arts; that this determination of the matter is authoritative
and definitive; and it is not within the power of the Court of Cassation to amend it;
      As for the second argument of the appeal, which alleges the erroneous application of the law
of 1793, of articles 425ff. of the penal code, and especially the violation of art. 7
of the law of 20 April 1810, in so far as the contested decision is alleged not to have responded
directly or indirectly to the submissions of Betbeder, based on the failure of the plaintiffs
sueing for counterfeit to justify their suit by an exclusive right to the counterfeited object
(the portrait of the Comte de Cavour);— Whereas, with regard to this demurrer [fin de non-recevoir]

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COURT OF CASSATION                                    53
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the contested decision replies that the plaintiffs are the authors of the portrait of
the Comte de Cavour; and it is established that they obtained the right to reproduce
and sell it, and that Betbeder knowingly reproduced the portrait of the Comte de Cavour
from the photographic portrait belonging to the complainants; and this special work
upon which the complainants claimed an exclusive right of property, without moreover
contesting the respective right of Betbeder and Schwalbé to reproduce the image of the
Comte de Cavour, being declared by the decision to be the exclusive property of the plaintiffs
in the counterfeiting suit, the result of these provisions combined is that the
contested decision did declare and justify the exclusive right of Mayer and Pierson to the
photographic reproduction made by them of the portrait of the Comte de Cavour; and therefore
the alleged omission does not exist;
      With regard to the third argument, which arises specifically from a lack of cause, in so
far as the contested decision is alleged not to have responded to the submissions of Betbeder,
based on the fact that the photograph made by him was not the exact reproduction of the
portrait of the Comte de Cavour, supposedly counterfeited; — Whereas, on this point, one
may read in the disputed decision that Betbeder knowingly reproduced the portrait of the
Comte de Cavour from the photographic portrait belonging to the plaintiffs, and that the
modification of certain props is not sufficient to cancel out this misdemeanour; and this
declaration, whose virtual result it is to render the alleged modification insufficient
to disguise the counterfeit, responds adequately to the aforementioned submissions:
      For these reasons, and whereas, moreover, the ruling is regular in form, the Court
rejects the appeal etc.
      On 28 November 1862. - Criminal Chamber - Messrs Vaïsse, President - Caussin de
Perceval, Reporter - Guyho, Attorney General, c. conf. - Hérold and Rendu, lawyers.

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Translation by: Andrew Counter (pp.2-4)