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,

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Full title:
Betbéder and Schwalbé C. Mayer and Pierson, Court of Cassation. 21 November 1862.

Full title original language:
Betbéder et Schwalbé C. Mayer et Pierson, Court de Cassation. Du 21 nov. 1862.

The law of 1793 had, obviously, not foreseen the question of photographic productions. Nevertheless, even at a time when photography was beginning to truly assert itself as a lucrative means of reproduction, the revolutionary legislation's very broad provisions, which envisaged all kinds of works, could potentially serve to secure protection for photographs. As it turned out, the question as to whether the products of photography constituted artistic works in the sense of the 1793 act would be fiercely debated right up to the end of the nineteenth century. Giving rise to contradictory decisions before the lower courts from the early 1860s onwards, this question presented itself for the first time to the judges of the Court of Cassation in November 1862. The supreme judges had to give their opinion in this matter, and a priori they had two basic options to choose from: either to exclude photography insofar as it was a simple machine product, whose very form excluded any possibility of identifying an author; or to accept that photography should be protected, since in its form it testified to a personal contribution on the photographer's part and even to his personality. Faced with these two quite opposite standpoints, the judges ultimately opted for another system - one that was complicated, ambiguous, and, so to speak, intermediate between these two principles.

1 Commentary:


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Author: N/A

Publisher: Dalloz

Year: 1862

Location: N/A

Language: French

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

Persons referred to:
Bisson, Auguste-Rosalie
Bisson, Louis-Auguste
Caussin de Perceval, E.
Cavour, Count Camillo Benso di
Daguerre, Louis Jacques Mandé
Flandrin, Jean Hippolyte
Guyho, Corentin
Henriquel-Dupont, Louis-Pierre
Hérold, Ferdinand
Ingres, Jean Auguste Dominique
Mayer, Louis Frédéric
Mayer, Léopold Ernst
Palmerston, Henry John Temple, 3rd Viscount
Pierson, Pierre Louis
Rendu, Ambroise
Robert-Fleury, Joseph-Nicolas
Thiébault, Eugène
Vaisse, Marc-Antoine-Henri-Marius

Places referred to:

Cases referred to:
Mayer et Pierson v. Betbéder and Schwalbé (1862)

Institutions referred to:
Court of Cassation (Paris)
Imperial Court of Paris
Institut de France
Tribunal correctionnel de la Seine

French Copyright Act 1793

art market
authorship, theory of
industrial revolution
patents, for invention
personality theory
photography, protected subject matter
public domain

Responsible editor: Frédéric Rideau

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