PhotoShop and Droit Moral

A French bill aims at adding an article (Art. L. 2133-2) to the Code of Public Health which would read as follow: “The photographs of people in advertising whose physical appearance had been altered by an image processing software program must be accompanied by the words: "Photography retouched to alter the physical appearance of a person."” Most of us know that the wonderful creatures living in the pages of Vogue and Vanity Fair are helped by the Photoshop fairy.

The representative sponsoring this bill, Valérie Boyer, believes that letting people know this image is an illusion would prevent the representation of super thin models and thus fight anorexia.

But the bill would not only cover “advertising posters or photographs on the packaging of a product,” but also “photographs of political campaign posters or artistic photographs.”

No more airbrushed pictures of candidates? Fine with me. But what about artistic photographs? First of all, what is an artistic photograph? I see great pictures on Flickr that, even if not presented as artistic by their authors, are indeed artistic. If a little Photoshop is involved, would the authors have to tag their pictures? Also, what about moral rights? Could an artist be forced to reveal publicly how his final work has been produced?

The French droit moral involves the right of respect of the artwork. The work of art cannot be distorted. But the cases so far dealt with a work of art distorted by a third party after having been represented to the public. For instance, the Paris Court of Appeals (May 30, 1962) had forbidden a work of Buffet to be sold separately. The artist had painted on different parts of a refrigerator, and the owner wanted to dismantle the work and make several separate sales. If the bill would be voted into law (unlikely though), would the artist be able to argue that this law violates his droit moral, by forcing him to distort his work of art if he wishes to represent it to the public?