## Facts

- Eva-Maria Painer, a freelance photographer in Vienna, took studio portrait photographs of a child, arranging pose, background, and lighting, and marked prints with her name.
- She sold prints but did not transfer copyright or consent to publication by third parties.
- After the child was abducted, Austrian authorities used the portraits in a search appeal; Painer did not object to that official use.
- After the child escaped and before her first public appearance, multiple newspapers and magazines in Austria and Germany published the portraits and, in some instances, a computer-generated “photo-fit” derived from them, in print and online.
- Several publications omitted Painer’s credit or attributed authorship to someone else.
- Publishers asserted defenses including the “quotation” and “public security” exceptions under EU copyright directives.
- Painer sued in the Commercial Court of Vienna for injunctive relief and monetary remedies; the court referred questions to the Court of Justice of the European Union for a preliminary ruling on jurisdiction, protectability of portraits, scope of exceptions, and whether the photo-fit was a reproduction.

## Issues

1. Whether a single Member State court may exercise jurisdiction over multiple publishers domiciled in different Member States for closely connected alleged infringements, even if different national laws govern the claims.
2. Whether a portrait photograph qualifies for copyright protection as a “work,” and whether any protection is lesser than for other works.
3. Whether media entities may invoke the “public security” exception to publish a protected photograph on their own initiative, and under what conditions.
4. Whether the “quotation” exception applies where the quoting press report is not itself a protected work, and whether the exception requires identifying source and author.
5. Whether creating a computer-generated photo-fit using a protected portrait as a template constitutes a “reproduction in whole or in part.”

## Decision

- The court ruled that connected-claims jurisdiction is not excluded merely because actions against multiple defendants rely on different national legal bases; the key inquiry is whether separate proceedings risk irreconcilable judgments.
- It held that a portrait photograph is protected if it is the author’s own intellectual creation reflecting free and creative choices; if so, its protection is not inferior to that of other works.
- It held that the public-security exception does not permit publishers, acting solely on their own initiative, to use a protected work by invoking public security; any qualifying publication must occur within the framework of action by competent authorities and in coordination with them.
- It held that the quotation exception can apply even if the quoting press report is not itself a protected work, but it is conditional on indicating the source, including the author’s name.
- It held that using a portrait photo as a template to generate a computer-based photo-fit can constitute reproduction “in whole or in part” because it may copy protectable elements expressing the photographer’s intellectual creation, absent a valid exception.

## Legal Principles

- Multiple-defendant jurisdiction for connected claims may be available when joint adjudication is expedient to avoid irreconcilable judgments; identical national legal bases are not required.
- A photograph is a protected “work” when it is the author’s own intellectual creation, shown through free and creative choices (e.g., pose, lighting, framing, angle); qualifying photographs receive full protection equivalent to other works.
- The public-security exception is construed narrowly and cannot be invoked unilaterally by private media; use must be linked to and coordinated with competent authorities’ measures.
- The quotation exception does not depend on the quoting material being independently copyright-protected, but it requires compliance with conditions including identification of source and author.
- Creating derivative imagery from a protected photograph may infringe the reproduction right when it copies elements that reflect the author’s protectable creative choices, unless an exception applies.

## Conclusion

The ruling clarified that portrait photographs may receive full copyright protection when original, that computer-generated photo-fits derived from such photos can fall within the reproduction right, and that press-related exceptions are limited: public-security use must be authority-linked and coordinated, while quotation requires proper attribution.


Painer v. Standard Verlags GmbH, Case C-145/10 (C.J.E.U. 2011)