COPYRIGHT – Lack of originality for a selfie taken by an influencer in an elevator

Paris Court of Appeals, May 12, 2023, 21/16270. The Paris Court of Appeal issued a judgment in which it held that a selfie taken in an elevator cannot be protected under copyright law due to a lack of originality, nor under unfair competition and parasitism.

An influencer posted selfies taken with her dog in an elevator on social media and her blog, showing her outfits and providing affiliated purchase links.

The company MAJE launched an advertising campaign titled “Maje, my dog and I,” which, according to the influencer, reproduced essential characteristics of her selfies, especially since the model chosen by the company looks like her. She filed a legal action against the company for copyright infringement, unfair competition and parasitism.

The initial judgment dismissed the influencer’s claims based on copyright but ordered the company MAJE to pay 1,000 euros for material damages and 4,000 euros for moral damages under the parasitism claim.

Both parties appealed the decision.

Regarding copyright infringement, the Court of Appeal noted that the photograph was not on the influencer’s public profile and only appeared in a “story” which by definition is temporary. However, several statements from influencer’s followers demonstrated that the photograph had indeed been disclosed to the public.

Concerning the originality of the selfie, the Court reiterated that the author must identify “elements reflecting their personality” and precisely indicate “the characteristics that constitute the infringement.”

The Court then observed that the influencer merely described the photograph without explaining the reasons behind her choices and failed to demonstrate how her adjustments were unique to her. The “selfie”

merely replicated the “artificial lighting of the elevator.”

Furthermore, it noted that “staging oneself and taking a photograph in an elevator using the selfie technique accompanied by a dog was already known on social media…” on accounts with a much wider audience.

The Court concluded that a “daily ritual…to showcase outfits” does not qualify as the photograph’s originality, as the influencer “cannot appropriate this style.”

Consequently, the Court logically concluded that the influencer “fails to establish the arbitrary choices she made regarding staging, contrast effects, lighting effects, element placement, or post-production/retouching work” and rejected her copyright claim.

Regarding unfair competition and parasitism, the Court held that “using a photograph that bears resemblances to the previously posted image on Instagram is not wrongful” and does not constitute unfair behavior by the company MAJE, as it aligns with current trends.

Additionally, the fact that some followers of the influencer’s Instagram account believed they recognized her in the disputed photograph does not constitute unfair competition, as the invoked risk of confusion pertains to the influencer’s person and not the services she offers within her professional activity.

The Court of Appeals also noted that the influencer’s notoriety on Instagram is relative, with a low engagement rate of 1.02% and a limited audience. Finally, concerning parasitism, the Court dismissed this claim for the same reasons mentioned above, adding that the influencer did not establish having made investments related to this visual and therefore failed to demonstrate individualized notoriety or economic value.