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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
Citation:
Court of Cassation on photography (1862), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
Back | Record | Images | Commentaries: [1]
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54 FIRST PART
[1st column:]
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!
[2nd column:]
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]
No Transcription available.
Source: Bibliothèque universitaire de Poitiers (SCD): Dalloz, Jurisprudence générale. Recueil Périodique et critique de jurisprudence, de legislation et de doctrine, 1863.1.52
Citation:
Court of Cassation on photography (1862), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
Back | Record | Images | Commentaries: [1]
Translation only | Transcription only | Show all | Bundled images as pdf
[1st column:]
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!
[2nd column:]
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. »
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]
No Transcription available.