Copyright Infringement and Originality in Photography: The Mankowitz/Hendrix Case

The Mankowitz/Hendrix case (Tribunal de Grande Instance de Paris, 21 May 2015) is one of the most controversial European photography copyright decisions of recent decades. It confronted directly the question: when does a photograph reflect sufficient creative input to qualify for copyright protection? The case involved a famous 1967 portrait of Jimi Hendrix by photographer Gered Mankowitz that an e-cigarette advertiser had reproduced without authorisation — and the Paris court ruled the photograph lacked originality, denying copyright protection.

The case generated significant criticism for setting an apparently very high originality bar inconsistent with CJEU jurisprudence in Painer (C-145/10, 2011), and remains a cautionary tale for photographers documenting creative choices that establish originality. This guide analyses the case and its implications under Italian and EU copyright law.

For the foundational originality framework, see our idea/expression dichotomy guide. For the broader copyright framework, see our master pillar guide to copyright law in Italy and Europe. For prevention and enforcement of photograph rights, see our preventing image theft guide.

The Mankowitz/Hendrix case: facts

Gered Mankowitz is an English photographer noted for portraits of pop and rock musicians, including Kate Bush, the Rolling Stones, and Jimi Hendrix. His 1967 photograph of Hendrix — depicting the musician in black and white, smoking, with strong geometrical framing — is one of his best-known works and a frequently reproduced image of the musician.

In 2013, Mankowitz discovered that his photograph had been reproduced in an advertisement for electronic cigarettes. The advertiser had altered the image only by replacing the traditional cigarette in Hendrix’s hand with an electronic cigarette. Otherwise, the framing, lighting, posing, and aesthetic of the original photograph were faithfully copied.

Mankowitz, together with the company that had acquired commercial rights to the image, sued the advertiser in France for copyright infringement and violation of moral rights.

The defendant raised a striking defence: it argued that no infringement could exist because the photograph itself was not original and therefore not protected by copyright at all. The case turned on the originality question.

The Paris court decision

On 21 May 2015, the High Court of First Instance of Paris (Tribunal de Grande Instance), 3rd Chamber — one of France’s specialised IP chambers — ruled that Mankowitz’s photograph was not original and therefore not protected by copyright under French law.

The decision was widely criticised as inconsistent with both common sense (the photograph is a recognised iconic image of Hendrix) and CJEU jurisprudence requiring a relatively low originality threshold. The 3rd Chamber had rendered several similar decisions, denying copyright protection to photographs that under most analyses would clearly qualify.

The case was appealed to the Paris Court of Appeal. Subsequent French jurisprudence has tended to apply the CJEU originality test more permissively than the controversial 3rd Chamber decisions, though the legal framework continues to evolve.

The three reasons the photograph was denied protection

The Paris court’s reasoning rested on three holdings, each of which has implications for photographers:

1. Artistic merit is not the same as originality

Mankowitz’s argument for originality included a lyrical description of the photograph’s artistic qualities, prepared for the court:

“This extraordinary and equally rare photograph of Jimi Hendrix manages to capture, for a very short moment, the striking contrast between the lightness of the artist’s smile and of the curl of smoke and the blackness and geometrical rigor of the rest of the image, created notably by the lines and right angles of the bust and arms. The capture of this unique moment and its enhancement through the light, the contrasts and the narrow frame focused on Jimi Hendrix’ bust and head reveal the ambivalence and contradictions of this legend of music. As a result, this photograph is a fascinating and highly beautiful work which reflects its author’s personality and talent.”

The court was unmoved. It held that art can have artistic merit without being original — and that the photograph’s artistic appeal did not establish that the photographer had made the creative choices necessary for copyright protection. This holding distinguished aesthetic quality from the originality threshold.

2. The photographer’s personality, not the subject’s

The court held that the key inquiry under EU jurisprudence is whether the photograph reflects the personality of the photographer — not the personality of the subject. Mankowitz’s description focused largely on what the photograph said about Jimi Hendrix: his “ambivalence and contradictions” as a musician.

The court found this analysis misdirected. The originality test does not ask whether the photograph reveals something interesting about its subject. It asks whether the photograph reflects the photographer’s creative choices and personal expression.

3. Conventional framing and composition

The court held that the framing, background, and choice of black-and-white were “fairly common for this type of portrait“. For a rock musician portrait in 1967, these elements were conventional rather than distinctively creative choices.

The court reasoned that Mankowitz had not adequately explained the specific creative choices he made about the posture of the subject, his costume, and general attitude. Without this specific creative explanation, the photograph appeared to follow rock portrait conventions rather than express the photographer’s personal creative vision.

The CJEU Painer framework

The Paris court applied the CJEU framework established in Eva-Maria Painer v. Standard VerlagsGmbH (C-145/10, 2011):

“An intellectual creation is unique to its author when it reflects the personality of this one and this is so if the author was able to express his creative abilities in the realization of the work by making free and creative choices.”

For photography, the Painer framework lists relevant creative choices:

• Choice of framing;
• Choice of angle;
• Choice of lighting;
• Choice of exhibition technical parameters (exposure, aperture, shutter speed);
• Choice of trigger time (the precise moment captured);
• Choice of pose, expression, and arrangement of subjects;
• Post-production choices.

Where the photographer can demonstrate that these choices were made with creative intent and reflect personal expression, the photograph qualifies as a “photographic work” under EU copyright. The Mankowitz court applied this framework strictly, requiring specific explanation of each creative choice rather than accepting general artistic description.

The Painer framework was further developed in Cofemel (C-683/17, 2019) and other CJEU decisions, generally moving toward a moderately permissive originality threshold.

Application under Italian law

Italian courts apply the same Painer originality framework as French courts (EU harmonisation). Italian Articles 1, 2(7) and 87-92 LDA establish:

• Photographic works (opere fotografiche): photographs reflecting the photographer’s intellectual creation through creative choices. Protected life of author plus 70 years;
• Simple photographs (fotografie semplici): photographs documenting persons, objects, or nature without creative work threshold. Protected 70 years from creation (under Law 182/2025 extending from 20 years).

Italian jurisprudence has generally applied the Painer framework more permissively than the controversial Paris 3rd Chamber decisions. Italian courts typically find originality where:

• The photographer made deliberate framing and composition choices;
• The photograph reflects a personal visual style or aesthetic approach;
• Lighting, posing, and timing decisions are demonstrable;
• The photograph is distinguishable from similar photographs of similar subjects.

Even where a photograph does not qualify as a photographic work under Article 2(7), it typically qualifies as a simple photograph under Articles 87-92 LDA with 70-year protection — though with weaker enforcement features and the requirement of Article 90 indications (photographer’s name, year, depicted person).

Lessons for photographers

The Mankowitz/Hendrix case offers practical lessons for photographers concerned about establishing copyright in their work:

Document creative choices

Maintain records of specific creative decisions for important photographs:

• Framing and angle choices and rationale;
• Lighting setup and aesthetic intent;
• Pose, expression, and subject arrangement directions;
• Technical parameter choices (exposure, focus, lens);
• Post-production decisions;
• Outtakes and alternative versions that demonstrate the creative selection process.

This documentation supports later originality arguments if the photograph is challenged.

Distinguish photographer from subject

When defending originality, focus on what the photographer chose and contributed — not what the subject brought to the photograph. The photograph’s interest as a document of Jimi Hendrix is irrelevant to its copyright protection. What matters is what Mankowitz chose to do with framing, lighting, and timing.

Avoid conventional framing for important work

Where possible, develop distinctive personal visual approaches that differentiate work from generic portrait conventions. The Paris court found Mankowitz’s framing “fairly common for this type of portrait” — a finding that would be more difficult for visibly distinctive personal styles.

Maintain the photographic work classification

For commercially significant photography, structure work in ways that support full “photographic work” classification (life of author plus 70 years) rather than simple photograph classification (70 years from creation, weaker enforcement). This is largely about documented creative choices.

Consider second-tier protection

Even where photographic work status is uncertain, simple photograph protection under Articles 87-92 LDA provides meaningful rights. Comply with Article 90 indication requirements (name, year, depicted person where applicable) to support enforcement.

Frequently asked questions

What was the Mankowitz/Hendrix case?

Photographer Gered Mankowitz sued an e-cigarette advertiser in France for reproducing his iconic 1967 portrait of Jimi Hendrix without authorisation. The defendant argued the photograph was not original. The Paris court (Tribunal de Grande Instance, 21 May 2015) ruled the photograph lacked originality and was not protected by copyright — a controversial decision criticised as inconsistent with CJEU Painer jurisprudence.

What is the originality test for photographs in the EU?

Under CJEU Painer (C-145/10, 2011), a photograph qualifies for copyright when it reflects the photographer’s personality through free and creative choices: framing, angle, lighting, technical parameters, trigger time, pose, expression, post-production. The threshold is relatively low but requires specific evidence of creative decision-making.

How does Italian law treat photograph originality?

Italian Articles 1, 2(7) and 87-92 LDA apply the same Painer framework as French courts. Italian jurisprudence has generally been more permissive than the controversial Paris 3rd Chamber decisions, finding originality where photographers can demonstrate deliberate creative choices. Photographs not qualifying as photographic works typically still qualify as simple photographs under Articles 87-92 LDA.

What’s the difference between photographic works and simple photographs?

Photographic works (Article 2(7) LDA): photographs reflecting creative choices, protected life of author plus 70 years. Simple photographs (Articles 87-92 LDA): photographs documenting persons, objects, or nature without creative threshold, protected 70 years from creation (under Law 182/2025). Different protection scope and enforcement features.

How can photographers document their creative choices?

Maintain records: framing/angle rationale, lighting setup notes, pose/expression directions to subjects, technical parameter choices, post-production decisions, outtakes and alternative versions. For commercially important photographs, prepare creative choice documentation contemporaneously rather than retrospectively.

Was the Paris decision reversed on appeal?

The Mankowitz case was appealed to the Paris Court of Appeal. Subsequent French jurisprudence has tended to apply the Painer test more permissively than the controversial 3rd Chamber decisions. Current French and Italian practice generally finds originality where photographers can demonstrate creative choices, even where the controversial 3rd Chamber decisions would have denied protection.

What about moral rights of the photographer?

Where a photograph qualifies as a photographic work, the photographer holds moral rights of paternity (attribution) and integrity (protection against derogatory modification) under Italian Articles 20-24 LDA. The Mankowitz case argued both copyright infringement and moral rights violation. See our moral rights hub for detailed analysis.

How DANDI supports photographers and image rights holders

DANDI.media supports photographers, agencies, image rights holders, and image users on photography copyright matters:

• Originality analysis: assessment of photographs against Painer framework for copyright protection scope;
• Documentation strategy: design of creative-choice documentation processes for commercially important photography;
• Infringement litigation: representation in copyright and moral rights litigation in Italian specialised IP chambers;
• Defence representation: defence in alleged infringement claims, including originality challenges as in Mankowitz;
• Cross-border enforcement: coordination of enforcement across Italian, French, UK, and other European jurisdictions;
• Stock photography compliance: contract review and dispute resolution for photographers and agencies;
• Settlement and licensing: alternative dispute resolution for medium-value infringements.

For consultation, book directly with Avv. Claudia Roggero or Avv. Donato Di Pelino.

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