Now the Syndicat des transports d'Ile de France wishes to carry out a publicity campaign for his service Noctilien. He contacted an agency (Agency Republic), the latter deciding to ride the Fotolia image bank for an image (the photographer Lawrence H.) starring Florinda B. to illustrate this campaign. Discovered in January 2008 this practice, the model decided to assign the STIF, which decided to invite her agency in the case Republic, which itself decided to intervene Fotolia, which in turn decided to bring Tribunal to the photographer.
This little world thus found himself before the Tribunal de Grande Instance of Paris has been called to try to unravel the thread of this case and establish the responsibilities of each stakeholder.
first point: there been an infringement in the image of the model?
Florinda B. " said to be a model full time since June 2007 after being" model and host events for five years, "and agreeing to the request of Lawrence H. December 13, 2006 participate in a photo shoot in order to a possible exploitation for commercial purposes, the photographer who had previously indicated by mel, placed in evidence, he worked for an online image bank, and especially for the Fotolia website ".
In October 2007, having learned that the photographs were available on Fotolia, it send the photographer an email asking him to join her for " see the whole contract and money (he was) if (he) have sold (her) pictures" which the latter replied on January 5 2008 in these terms: "I wish I could see you and solve the problem of your photos .
The Court observes that" neither party does that there was an agreement on the deal and the price between the model and photographer, while the authorization to use the image for commercial purposes must be explicit and precise and, where applicable, indicating the uses permitted or proscribed by the model, the geographical scope and intended the maximum duration of operation, and in any event, the method or the quantum of compensation in part-cons of the exploitation of rights granted . "But for judges:
" It is principle, particularly with regard to commercial usage of the image of professional models, such authorization is expressly limited in time and the burden of proving the existence and scope of the authorization granted based on the fact that public use of the image in question. "
second point: the responsibility to" cascade ".
First, the Court considers that is primarily responsible STIF , namely the advertiser has made use of the photograph in question:
"Having made a public and commercial exploitation of the photograph of the applicant without a valid authorization from the interested there's no power, STIF necessarily-it was in good faith, violated the rights of the latter and committed leader of this responsibility on the basis of Article 9 of the Civil Code. "Nevertheless, Agency Republic has a responsibility , since it is bound to give a statement regarding the supply of cliches:
"It is right that the STIF seeking the full warrants society REPUBLIC, communications agency, held in respect of an obligation of result, which involves providing its own advertising client to a cliché purpose for which it was intended "However, the Agency was provided with Fotolia. What about the Fotolia responsibility vis-à-vis Agency? It is also chosen, judges dismissing the application status to the host Fotolia .
In his defense, Fotolia shows " she is not responsible for the content of this platform, merely to allow photographers to store their products in order to grant to individuals or entities licensed Operating on these works, serving only procuring liability "and therefore it must have the liability regime set up under section 6.I.2 in favor of" hosts ".
The Tribunal is not this review:
"This plea will be rejected, the company FOTOLIA LLC are in no way, in this case, a host of websites, which only apply the statutory provisions invoked, but a communication service public online, that is, a site itself ("Website Fotolia" is written in its general conditions of use), which defined its purpose, the configuration of this site terms and license fees it imposes on their photographers and potential clients through a contract of adhesion it has only drawn against each other. It will be particularly noted that it has established a system of credits, payment of the price of photography ranging from 0.83 to 4.15 euros depending on the file format and the license chosen, it explains (his play 18) that the files acquired "may be used by the client without limit of time or number of broadcasts for uses as diverse as: advertising, the achievement of business records [...]", and photographers interested receive, for each file sold, a commission of between 30 and 61% of the selling price.
Having put online for downloading for commercial use photographs of the applicant without a valid authorization of the latter, the liability shall, as such restraint. "
therefore " right to find that the agency has acquired REPUBLIC photography
issue by downloading the Fotolia website seeks contractual guarantee full company FOTOLIA LLC ", the judges felt that the terms of the general conditions of the Fotolia website does not allow the site to avoid liability in this regard.
And
what about the photographer? The Tribunal considers that:
"given the contracts that bind with photographers, and under which Lawrence H. necessarily made since sent him a document purporting to assert authority to operate the image of the plaintiff, the company FOTOLIA LLC will turn fully secured by the convictions against her. "Finally, Judges condemn so STIF Florinda B. to pay the sum of 1,000 euros in moral damages and 2,500 euros for the financial loss. In parallel printer, a judge sentences Agency Republic to ensure STIF payment of such sums , also condemns Fotolia Républic Agency to ensure the payment of such sums and ultimately condemns the photographer to ensure the site Internet payment of such sums.
Source: TGI Paris, 17ech, 10/11/2010, Florinda X v. Syndicat des transports d'Ile-de-France, SARL Fotolia Fotolia LLC Company, LLC and Lawrence H. Republic (Unpublished)
Author: Benoit Tabaka - http://tabaka.blogspot.com 
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