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Court of Cassation on photography (1862)

Source: Bibliothèque universitaire de Poitiers (SCD): Dalloz, Jurisprudence générale. Recueil Périodique et critique de jurisprudence, de legislation et de doctrine, 1863.1.52

Court of Cassation on photography (1862), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

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            Chapter 1 Page 2 of 4 total

COURT OF CASSATION                                    53

the insufficiency of the modifications which the latter avails himself of, in
order to avoid being accused of counterfeit

(Betbéder and Schwalbé v. Mayer and Pierson.)


[2nd column:]

      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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