Does a French copyright smell anything?

January 4, 2018 · by ·

The FIAC, the international fair of contemporary art, just ended in Paris. Its visitors were able to visit a glass cube, the OSNI, placed on top of the Pavilion of the Palais de Tokyo. OSNI stands for Objet Sentant Non Identifié, ‘Unidentified Scented Object’ and was created by Mathilde Laurent, a perfumer for Cartier, along with Munich climate engineers Transsolar.

Visitors entering the cube were able to go up a staircase through a cloud of the Cartier L’Envol (The Flight) perfume. The cloud is clearly seen to viewers outside OSNI. The fact that the perfume can be seen is as important as it can be smelled.

This installation led French magazine Télérama to ask the question: can perfume be a work of art? Modernist called it “[a] true olfactory and immersive artistic work that presents a completely new way of using smell as a medium of creation.”

Wallpaper quotes Mathilde Laurent as saying “I’m not an artist…but…I feel that to create a piece like this is our duty as a house because it’s important that we sustain olfactory art like all others.”

Could OSNI be a work of art? Is there such thing as olfactory art?

Perfume is not protected by French copyright.

Even though article L.112-1 of the Intellectual Property Code clearly provides that its provisions “ protect the rights of authors on all works of the mind, regardless of genre, form of expression, merit or destination,” perfumes are not protected by French copyright, the droit d’auteur. The Cour de Cassation, France’s highest civil court, ruled in 2008 that “the fragrance of a perfume, which proceeds from the simple implementation of a know-how, does not constitute the creation of a form of expression that can benefit from the protection of copyright”. Therefore, L’Envol is not protected by copyright.

However, OSNI is way more than a perfume. It is an art installation, with which visitors are interacting.

Does France protect performance art?

OSNI’s visitors were able to go up and down the staircase inside the cube, and were seen from outside. Were they part of the performance? Were their reactions to the scented air part of the performance?

France recognizes that an artistic performance may be protected, not by copyright law, however, but by the right in one’s image. Reproductions of an artistic performance, such as photographs taken of it, are, however, protected by the droit d’auteur. In that case the performance artist and the photographer are co-authors, Paris Court of Appeals, 4th Chamber B, December 3, 2004.

Is the perfume an element of the protected work, the cube?

If perfume can not be protected as a scent, could it be protected as a work of art? The perfume is clearly seen here, and can be smelled only if one is inside OSNI. Viewers from outside cannot smell it, but they can see the way the cloud of perfume moves inside the cube.

The cube can be considered a sculpture, and, as such, protected by the droit d’auteur. The scent is part of it and thus protected as an element of the sculpture, but still does not gain individual protection. However, one could imagine that if Cartier were to sell OSNI to an art collector, who would then replace the scent with the one of his favorite aftershave, this would be copyright and droit moral infringement, and would conjure the issue of whether perfume is protected by the droit d’auteur out of the (crystal) bottle.

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Corporations Have No Moral Rights over Works in France, Even if They Commissioned It

January 3, 2017 · by ·

The French Cour de cassation, France’s highest judiciary court, held on November 16 that a corporation cannot have moral rights over a work, even if it had commissioned the work or if the work was created by one of its employees.

Article L. 111-1 of the French intellectual property Code (CPI) gives authors both patrimonial and moral rights. Moral rights, which are perpetual, inalienable and imprescriptible, are the right of respect for the author’s name and status, and the right of the respect of the integrity of the work.

In this case, an advertising agency, which rights now belongs to the Maetva corporation, had commissioned a corporation, G. studio, to take photographs of watches to illustrate a catalog published by the Pierre L. corporation, a watchmaker.5802530663_45c7b853d7_z

The Pierre L.corporation used these photographs a year later for a new advertising campaign, which was featured on bus stops, magazines and online. G. studio found this new use to be infringing, as it claimed that it had only sold the rights in the photographs for their use in the catalog. G. studio sued the Pierre L. corporation for copyright infringement and Pierre L. called Maetva into the proceedings.

As you can see, no physical person is part of the procedure, only corporations. The issue of which corporation owned the patrimonial rights of the photographs was debated in the lower courts, and the Court of appeals found that they belonged to G. studio, as did thus, necessarily, the moral rights.

The Cour de cassation refused to rule on the issue of patrimonial rights, arguing that reviewing them would impinge on the exclusive rights of the lower courts to estimate the amount of prejudice. However, it ruled on the issue of moral rights ownership. For the Court, the author, if the author is a physical person, enjoys an inalienable right to respect for his name, his quality and his work. Therefore, even if the author created the work as part of an employment contract, “neither the existence of a contract of employment nor ownership of the material support of the work are likely to confer on the corporation employing the author the enjoyment of that right.” The Cour de cassation did not send the case back to the Court of appeals for remand, as there is no need to estimate the amount in damages for violation of the moral rights, as these rights simply do not belong to G. studio.

Corporations cannot own the moral rights of a work under French law, even if they commissioned it, even if the work was created by an employee, and even if they own the patrimonial rights. The moral rights to the photographs at stake belong to the physical person who took them: whoever she is, she was not a party to this lawsuit. For the sake of this discussion, let’s add that if is true that the photographs were used without mentioning her name, she would have the right to sue Pierre L. for failing to disclose her name, as this is a violation of her moral right to paternity of a work.

Even if the photographer had signed a contract transferring all her rights to the pictures, the contract could not have transferred her moral rights, even if the contract would have explicitly, but illegally, mentioned them as being ceded, because moral rights cannot be transferred under French law.
This case should serve as a warning for corporations acquiring the patrimonial rights of a work in a country which recognizes perpetual and inalienable moral tights, such as France, that the physical person who took the picture retains his moral rights forever. This is the case even if the law of the contract is the law of a country which does not recognize such rights, as in the U.S.; see for instance Paris Court of appeals, February 1, 1989, (D. 1990. 52).

Image is courtesy of Flickr user JBBrazito under a CC BY 2.0 license.

This blog post was first published on The 1709 Blog.

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The Paris Court of Appeals Gives Freedom of Expression the Ax in Favor of Droit Moral

February 10, 2016 · by ·

The Paris Court of Appeal recognized on October 13 that the opera Le Dialogue des Carmélites, as staged by Dmitry Chernyakov for the Opera of Bavaria in 2010, had violated the moral rights of the composer and the librettist. The music for the Dialogue des Carmélites was written by Francis Poulenc and its libretto adapted the eponymous theatrical work of Georges Bernanos.

The opera tells the story of a young French aristocrat, Blanche de la Force, who is painfully shy and fearful. As the French Revolution is about to start, she decides to become a Carmelite, or rather, to seek refuge in a convent. After the Carmelites are forbidden by the revolutionaries to be nuns and are ordered to go back to their civil life, they take a vow of martyrdom. Blanche flees the convent. The nuns are later arrested and sentenced to death.
In the last scene of the opera, which is the only scene in contention in this case, the Carmelites go one by one to the scaffold, while singing Salve Regina, a choir which decreases voice by voice after the sound of the ax, repeated regularly by the orchestra, indicates that the blade of the guillotine has cut off yet another head. Blanche suddenly appears at the scene, serene, just before the last nun, the young Constance, is about to be guillotined. Constance dies knowing that Blanche has been able to overcome her fears. The opera ends with Blanche calmly climbing the steps to the scaffold while singing the Veni Creator, and dying. The orchestra then plays again the opera’s motif, first played in its opening, albeit more plaintively this time. The whole scene is chilling.nun

Dmitry Chernyakov chose to place the action of the opera in the contemporary world, not during the French revolution. There is no guillotine in the last scene, and the nuns are instead held prisoners in a shed, waiting to be gased. Blanche suddenly arrives at the scene, albeit not to share the nun’s martyrdom, but to save them one by one, each of the rescues being punctuated, rather oddly, by the sound of the guillotine. Blanche then goes back inside the shed which explodes, killing her. It is unclear whether it is an accident or a suicide.

The heirs of Poulenc and Bernanos, as holders of their moral rights, brought an action in France against the director, the editor of the DVD of the opera, published in France, and the Munich Opera in the person of the Länder of Bavaria. They argued that the staging transformed the end of the work so much that it had distorted it and thus had violated the moral rights of the authors. Under Article L. 121-1 of the French intellectual property code, authors of an original work have a moral right over it, which is perpetual and transferable upon death.
The Tribunal de Grande Instance in Paris rejected the request of the heirs in 2014, concluding that the changes made by the staging were not a distortion violating the moral rights of the authors.

On appeal, by the heirs, the Länder of Bavaria argued that neither the libretto nor the music had been changed, and that only the staging, as performed by the singers during the last scene of the opera, had been modified. The Länder further argued that Mr. Chernyakov’s staging had conferred to the work “a more universal significance and is consistent with the spirit of the original work, since it respects its essential theme, which is hope.” One of the DVD producers argued that the appellants themselves had recognized in their conclusions that neither the libretto nor the music had been modified by the staging, and, that therefore, “the debate is outside the moral right and the legal debate, but is about the interpretation of the work and the artistic and historical controversy.”

The Court of Appeal stated:

“that if some freedom can be granted to the director performing his staging, this freedom is limited by the moral rights of the author and respect for his work, his integrity and his mind, and that this should not be distorted.”

The Court of Appeals admitted that the final scene of the opera as directed by Mr. Tcherniakov does not change the dialogue which is not even spoken during the final scene, nor the music, as the orchestra dutifully played each sound of the falling guillotine even though there was no guillotine on stage. However, the Court noted that these changes are “enigmatic or incomprehensible, or imperceptible to the neophyte.”

For the Court, even if Mr. Tcherniakov’s staging respected the central themes of the opera, which are hope, martyrdom and the transfer of grace, “it profoundly changes the end of the story as intended by [the authors] (…) and is the climax of the story, magnified in Poulenc’s opera, where text and music come into perfect harmony.” The Court of Appeals concluded that the staging had distorted the spirit of the work.

The sale of the DVD is now banned in France, but the heirs have not obtained the complete prohibition of the representation on other stages. This must be welcomed, as it would be dangerous for freedom of expression, particularly freedom of artistic expression, if moral rights could thus become a universal instrument of censorship.

This post was originally published on The 1709 Blog.

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Paris Court Denies Copyright Protection to Jimi Hendrix Photograph

July 2, 2015 · by ·

Gered Mankowitz is a British photographer who photographed many famous musicians such as Mick Jagger and Annie Lennox. He took several photographs of Jimi Hendrix in 1967. One of these photographs represents the musician, wearing a military jacket, holding a cigarette and puffing a cloud of smoke while looking at the photographer. An original print recently sold at auction for £2,750.

This photograph was used without authorization in 2013 for an advertising campaign by Egotrade, a French electronic cigarette company. The ad showed Jimi Hendrix holding an electronic cigarette and the “Egotabaco” brand was printed on the ad.

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Gered Mankowitz and Bowstir Ltd, the company to which Mr. Mankowitz has assigned his patrimonial rights to the photography, filed suit in France. Bowstir claimed copyright infringement and Mr. Mankowitz claimed droit moral infringement. On May 21, the Paris Tribunal de Grande Instance (TGI), a court of first instance, ruled that the Jimi Hendrix photograph could not be protected by French intellectual property law, as it was not original.

French intellectual property law does not provide a definition of “originality.” Article L. 111-1 of the French Intellectual Property Code provides that “[t]he author of a work of the mind shall enjoy in that work, by the mere fact of its creation, an exclusive intangible property right enforceable against all. This right shall include attributes of intellectual and moral attributes as well as patrimonial attributes.” Article L. 112-1 specifies that the law “protects the rights of authors in all works of the mind, whatever their kind, form of expression, merit or purpose.”

The TGI cited the European Court of Justice (ECJ) Eva Maria Painer. v. Standard Verlags case, where the Court had discussed the originality of a picture taken by a school photographer. For the ECJ, which the TGI cited verbatim,

“[a]s stated in recital 17 in the preamble to Directive 93/98, an intellectual creation is an author’s own if it reflects the author’s personality. That is the case if the author was able to express his creative abilities in the production of the work by making free and creative choices. … As regards a portrait photograph, the photographer can make free and creative choices in several ways and at various points in its production. In the preparation phase, the photographer can choose the background, the subject’s pose and the lightening. When taking a portrait phoograph, he can choose the framing, the angle of view and the atmosphere created. Finally, when selecting the snapshot, the photographer may choose from a variety of developing techniques the ones he wishes to adopt or, where appropriate, use computer software. By making those various choices, the author of a portrait photograph can stamp the work created with his ‘personal touch’” (ECJ 88-92).

Indeed, Recital 17 of Directive 93/98/EEC states that a photograph is original “if it is the author’s own intellectual creation reflecting his personality, no other criteria such as merit or purpose being taken into account.” Article 6 of the same Directive states that photographs are original if “they are the author’s own intellectual creation.” This directive was repealed by Directive 2006/116/EC, of which Recital 16 reprises the same words than Recital 17.

The TGI then examined the Jimi Hendrix photograph. Gered Mankowitz had explained to the court that

“this photograph of Jimi Hendrix, as extraordinary as it is rare, succeeds in capturing a fleeting moment of time, the striking contrast between the lightness of the artist’s smile and the curl of smoke and the darkness and geometric rigor of the rest of the image, created particularly by the lines and angles of the torso and arms. The capture of this unique moment and its enhancement by light, contrasts and the narrow framing of the photograph on the torso and head of Jimi Hendrix reveal the ambivalence and contradictions of this music legend and make the photograph a fascinating work of great beauty which bears the stamp and talent of its author.”

This argument did not convince the TGI as Mr. Mankowitz,

“as doing so, satisfied himself by highlighting the aesthetic characteristics of the photography which are distinct from its originality which is indifferent to the merit of the work, and does not explain who the author of the choices made regarding the pose of the subject, his costume and his general attitude. Also, nothing [in this argument] allows the judge and the defendants to understand if these elements, which are essential criteria in assessing the original features claimed, that is, the framing, the use of black and white, the light decor meant to highlight the subject, and the lighting being themselves typical fora portrait photography showing the subject facing, with his waist forward, are the fruit of the reflection of the author of the photograph or the subject, and if the work bears the imprint of the personality of Mr. Mankowitz or of Jimi Hendrix.”

Since the judges are therefore not able to appreciate whether this photograph is indeed original, the TGI ruled hat the photography lacked the originality necessary for its protection by French law, and that “the failure of the description of the characteristic elements of the alleged originality also constitutes a violation of the principle of defense rights.” The TGI thus concluded that Mr. Mankowitz had no intellectual property rights over the photograph.

By doing so, the TGI did not deny that this particular photography of Jimi Hendrix is not original. Rather, the court was not convinced that originality of the work was the result of choices made by Mr. Mankowitz. This case is less about what is an original work than how to prove that a work is indeed original.

As such, this ruling should give pause to French IP practitioners defending the rights of a photographer, as they must now prove why the author chose the different elements of a photograph and how these choices reflect his personality in such a way that the work is original. However, the case will be appealed, and so the debate on what is an original work, and how to prove, it is still ongoing in France.

 

Image is courtesy of Flickr user SarahElizabethC under a CC BY-ND 2.0 license.

This post was originally  published on The 1709 Blog.

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Is Peggy Guggenheim’s Collection a Work of Art Protected by French Copyright?

June 4, 2015 · by ·

Daily newspaper Le Monde reported recently about an intriguing case unfolding in the Paris Court of Appeals. The Guardian reported about the case here. The Paris court will have to decide whether the art collection Peggy Guggenheim spent years building should be considered a « œuvre de l’esprit » and, as such, be protected by the French droit d’auteur.

Peggy Guggenheim was an American heiress who spent all her life acquiring and building a contemporary art collection. She donated it, along with her Venetian palace, the Palazzo Venier dei Leoni, to the Solomon R. Guggenheim Foundation, which was created in 1937 by her uncle. Peggy Guggenheim’s collection is now shown at the Palazzo Venier dei Leoni, where Ms. Guggenheim’s ashes are buried. In her autobiography, Peggy Guggenheim expressed her desire to see her collection remain intact in Venice, and that nothing should be touched.

Her heirs filed a suit against the Foundation in France, where they live, claiming that the way it is now presenting the collection distorts the way Peggy Guggenheim meant to have it seen. They argue that the collection is not shown in its totality, that the garden has been modified, and that the Palace now boasts a cafeteria, which makes the Foundation a mere extension of the Guggenheim museum. They also consider that organizing parties in the garden where Peggy Guggenheim is buried is akin to violating her tomb.

The Paris Court of the first instance, the Tribunal de Grande Instance, rejected their claim in July 2014 because of res judicata. Indeed, the heirs had already filed suit against the Foundation under the same claim in the 90’s. The heirs had lost, but both parties found an agreement outside the courtroom. The heirs now claim that this agreement has not been respected and again filed suit against the Foundation.

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Can an Art Collection be Protected by Intellectual Property?

It remains to be seen if the Court of Paris will debate this issue, as the judges may very well consider that the case has already been judged. If they do consider the case, could French law protect an art collection as a work of the mind?

Article L. 111-1 of the French Intellectual Property Code gives the author of a “œuvre de l’esprit”, a “work of the mind,” exclusive rights over the work. Bernard Edelman, a renowned intellectual property attorney, is representing Peggy Guggenheim’s heirs, and he argued this week that a collection may be considered a work of the mind.

Indeed, the Paris Court of appeals held in 1997 that the “Musée du Cinéma Henri Langlois,” dedicated to the history of cinema, is indeed a work of the mind under French law. It had been entirely the idea of Henri Langlois who had been in sole charge of its design. The Paris Court of Appeals noted in 1997 that:

“Henri Langlois ha[d] not only selected the objects and movie projections that form this exhibit but also imagined the presentation following an order and an original scenography; in particular, as reported in several excerpts of articles and publications related to the « Musée du Cinéma, » Henri Langlois conceived the exhibition as a journey back in time in film history, which he staged in a cinematographic way; it is not a simple and methodical presentation of items relating to the history of cinema, but a resolutely personal creation, expressing both the imagination of Henri Langlois and his own conceptions of history of cinema, and reflecting thus his personality.”

Bernard Edelman had published an article in 1998 about this case, where he noted that the Henri Langlois Museum was particularly original as it was not only a collection of works of arts, but also a collection of objects, such as movie artifacts, and that the collection “invites to a kind of journey, a physical ambulation.” Does the Peggy Guggenheim collection invite visitors to such a journey?

Not in the opinion of Pierre-Louis Dauzier, the attorney representing the Guggenheim Foundation, who is quoted in Le Monde as arguing that « it is undeniable that the collector makes choices, he chooses to buy. Peggy Guggenheim was a muse of the art world, she bought a lot to support artists. » But he added that the way she showcased the collection was »very didactic, unoriginal, nothing more than a compilation.” Peggy Guggenheim had « not given an aesthetic sense in which the collection should be presented, » an argument which Bernard Edelman disagreed with, as he produced a plan made by Peggy Guggenheim on how the collection should be presented.

The case will be decided in September.

Ce billet a été publié sur le 1709blog.

Image is courtesy of Flickr user TracyElaine under a CC. BY. 2.0 license.

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French Mayor Sued by Artist for Repainting Fountain Without Authorization

February 27, 2015 · by ·

This post was previously published on The 1709 Blog. 

A French sculptor is suing the mayor of Hayange, a French town in Lorraine, for having repainted one of his works without authorization. The sculptor filed suit in Nancy last week, seeking 10,000 Euros in moral damages.

The French artist, Alain Mila created a fountain, composed of a rectangular natural granite stone block, which stands in a small pool and is pierced in the middle by a round conduit carrying out splashing water over a big egg. The work has been publicly displayed in Hayange since 2001, after it was bought by the then socialist mayor and mayoral team.

The newly elected Front National(FN) mayor of the town, Fabien Engelman, found the fountain quite ugly (“affreuse”) and he took the matter into his own hands last July. He had the egg repainted in baby blue and the fountain pool repainted in a darker shade of blue. The mayor was quoted in a local paper explaining he wanted to “cheer up the town” and that the town  had also repainted the barriers to that effect…

PaintBox

De Gustibus…

As the Front National represents itself as a patriotic, France above all kind of party, one wonders what may have triggered the choice of baby blue for an egg. I do not know of any French chicken producing blue eggs, and robins are not common in France. Alain Mila, the creator of the sculpture, noted that one of the colors used to repaint the fountain was similar to the color of the Front National logo. Indeed, the extreme-right party favors  blue, especially navy blue, which allows for a play on the words “Bleu Marine,” Marine being the first name of the current head of the FN, Marine Le Pen.

The office of Aurélie Filippetti, who was at the time French Minister of Culture, issued a statement about the painting of the fountain, writing that:

“This is a clear violation of the moral right and the basic rules of the Code of Intellectual Property and protection of patrimony. This incident is indicative of the cultural policy concepts of the elected officials of the Front National, which calls for greater vigilance. Aurélie  Filippetti is surprised that one can decide to “paint a work so it is more decorative” in defiance of its creation and of the crafts trade which are  entitled to expect, on the part of those responsible for  enforcing the law, respect for their rights and for the integrity of their work. The Minister of Culture and Communication recalls that works of art belonging to the State public domain or to public authorities are inalienable and cannot be sold. Consequently, these works cannot be modified or even moved, let alone destroyed without the permission of the artist or his successors in title. They cannot in any case be sold.”

The mayor then ordered the paint to be removed, but the restoration was not quite finished, and the stripping of the paint even damaged the work. Negotiations between the mayor and the artist did not lead to an agreement, and Mr. Mila filed suit.

Droit Moral

Mr. Mila deplored this act in the press, saying that it was an attack on his works and his personal values.

Indeed, article 121-1 of French Intellectual Property Code (FIPC) provides that the author has a moral right over the respect of his work. This right is “attached to his person” and so it is a personal right. However, the law does not directly provide for compensation.  Article 6bis of the Berne Convention also provides authors the right “to object to any distortion, mutilation or other modification of, or other derogatory action in relation to… [the] work, which would be prejudicial to his honor or reputation.”  French law has a larger scope than article 6bis, as the changes made to the work do not have to be proven prejudicial to the honor or reputation of the author.

French courts have regularly found that the moral right of an artist has been infringed because of changes made without authorization. Such changes found to be illegal were adding a too brilliant varnish on a painting or using tacky colors to restore a painting. I have not found the complaint in our case, but I have found a November 28, 1988 case from the Tribunal administratif of Montpellier where the court found that a town which had destroyed a monumental sculpture without the consent of its creator was liable for this action, and sentenced it to damages.

I believe that Mr. Mila is likely to prevail in his claim, and I will keep us posted on further developments.

Image is courtesy of Flickr user Calsidyrose under a CC BY 2.0 license.

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