France’s Highest Court Rules in Favor of Freedom of Expression of Director over Heirs’ Droit Moral

Readers of this blog may remember that the Paris Court of Appeals found in October 2015 that the staging of the opera Le Dialogue des Carmélites by Dmitry Chernyakov for the Munich Opera in 2010 violated the moral rights of composer and librettist Francis Poulenc, which adapted the eponymous theatrical play by Georges Bernanos.

Le Dialogue des Carmélites tells the story of French aristocrat Blanche de la Force who decides to enter the Carmelite Convent, possibly to be sheltered from life, as she is fearful and shy. The French Revolution upset her world and the Carmelites must leave the convent. Blanche leaves the congregation to return to her family. When the Carmelites are arrested and sentenced to death by the revolutionary tribunal, Blanche returns to them as they are each climbing the steps to the guillotine, and she is the last one to have her head cut off.

Dmitry Chernyakov had not modified the score or the dialogue. However, his interpretation did not take place during the French revolution, but in contemporary time. In the last scene, the Carmelites are locked up in a shed full of explosives. Blanche appears on the scene and pulls them all out to safety, one by one. She then comes back to the shed which explodes, killing her, an apparent suicide.

The heirs of both Francis Poulenc and Georges Bernanos had sued Dmitry Chernyakov and the Munich Opera, claiming a violation of their moral rights, which are which are perpetual and transferable upon death under Article L. 121-1 of the French intellectual property code. The Paris Court of Appeals had ruled in their favor, finding that the scenography profoundly modified the final scene and distorted its spirit. The DVD of the play could no longer be sold.

The director and the Opera took the case to the Cour de cassation, France’s highest civil court. The heirs argued in defense that “if a certain freedom can be recognized for the director to performance his work, this freedom is limited by the moral right of the author to the respect of the integrity and spirit of his work, which must not be denatured.”

But the Cour de cassation just ‘broke’ this holding on June 22. The Court reasoned that the Paris Court of appeals had noted that “the contested staging did not modify the dialogue, absent in this part of the preexisting work, nor the music, even going so far as to reproduce, along with the religious songs, the sound of the guillotine which rhythms, in the Francis Poulenc opera,  each death, and that the end of the story, as staged and described by Dmitry Chernyakov, respected the themes of hope, of martyrdom, of grace and transfer of grace and of the communion of saints dear to the authors of the original work, [and that therefore] the Court of appeals did not draw the legal consequences of its own findings and violated [article L. 113-4 of the French intellectual property code.]”

Article L.113-4 of the French intellectual property code states that “[t]he composite work is the property of the author who created it, subject to the rights of the author of the pre-existing work.”

In our case, the staging of the opera is a composite work, subject indeed to the rights of the authors of the pre-existing work, the opera. Such rights include moral rights. But the staging, as a composite work, is also a work on its own, protected by article L. 113-4. Since it does not infringe on the rights of the authors of the original work, their rights had not been violated.

This ruling is not surprising, as the Cour de cassation had held on May 15, 2015, that a Court of Appeals must explain “in a concrete manner how searching for the right balance between the rights [of the author of the original work and the rights of the author of the composite work] justified the sentence it had pronounced.”

The Cour de cassation also cited Article 10, § 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms. Protecting freedom of expression, to find that the Court of appeals erred in forbidding the sale of the DVDs of the opera and its broadcast, because it should have examined “what in the search for a fair balance between the director's freedom of creation and the protection of the moral rights of the composer and the author of the libretto justified the prohibition order it ordered.”

The Versailles Court of Appeals will not review the case again and will likely rule in favor of the director, and thus preserve his freedom to create and to express himself. Moral rights are often viewed in the U.S. as a way to censor creativity, and the 2015 Paris Court of appeals ruling certainly provided grounds for this view.  

France: Any Alteration/Modification of a Work in Public Domain is Infringement of Moral Rights

Auguste’s Rodin’s works are now in the public domain. This does not mean that you can do just about anything with them. I wrote a short post about the issue while a guest Kat, and a recent holding from the French highest civil Court, the Cour de cassation, gives me an opportunity to revisit the issue.

Mr. Guy X. reproduced and sold several sculptures of Rodin, now in the public domain, from May 1999 to September 2000. The statues were reproduced by pouring bronze on Rodin’s former foundry models. Mr. X was sued in criminal court for having presented these works as original pieces. He was found guilty of counterfeiting and selling counterfeit works, and was ordered to indemnify the Rodin Museum in Paris, a civil party to the case, for infringement of the author's moral rights.

Mr. X also reproduced works from Emile Bernard, Malvin Hoffman, Gaston d'Illiers, Pierre Lenordez, François Pompon, Louis Riche and Irénée Rochard which were still protected by French copyright (droit d’auteur). The Cour de cassation unsurprisingly confirmed that reproducing these works without permission was infringement.

As for the works in the public domain, Mr. X argued that, while article 121-1 of the French intellectual property Code indeed provides authors the right of respect in one’s name, of one’s quality and of one’s work, a set of moral rights which are perpetual, inalienable and imprescriptible, he had not infringed on Rodin’s moral rights as the works he had produced were of sufficient of quality as to not infring on these moral rights.

The Paris Court of appeals had upheld the judgment against Mr. X. and found that he had indeed forged works in the public domain, finding that Mr. X. wanted to confuse the public about the origin of the works in such a way as to suggest that they were indeed original sculptures, made during Rodin’s lifetime, whereas they were actually made by over moldings.

The process used by Mr. X “necessarily entails a change in the size of the original work, an attenuation of the precision of the features, a weakening of the vigor of the forms created, and that several of the works at stake had distorted the original sculptures, by modifying pedestals of the structures, removing, adding or inverting an element, or by smoothing the coats of the animals, or because of a defective patina.”

The Cour de cassation approved the reasoning of the Court of appeals, because “infringement of a work which has fallen into the public domain consists of any alteration or modification of the original work.”

While the facts of the case have established that Mr. X wanted to deceive customers, the holding of the Cour de cassation is so broad that it may encompass any alteration or modification of a work in the public domain, even if such alteration is made with no intention whatsoever of deceiving the public. How should we interpret this rather lapidary ruling? Does that mean that any alteration of a work in the public domain is an infringement, but that there is a benevolent tolerance if such modification is not made to deceive the public? Or does it mean that moral rights are so strong that they prevent any modification of any work, in perpetuity?

The Cour de cassation nevertheless found that the Court of appeals did not apply the law correctly when it had found that several of Mr. X’s works which indeed reproduced works by Rodin were infringing, as the Court had not researched if these reproductions were infringing the moral rights of the author, and “broke” (casser) the Court of appeals ruling. This holding further indicates that any reproduction which would not be an exact copy of the work in the public domain would be infringing.

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

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.

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 Flash Columbia  under a CC BY-NC 2.0 license.