The Poetic and Secret Lists of French Fashion Photographer Guy Bourdin

One of the articles in the March issue of French Vogue explained that the late French fashion photographer Guy Bourdin kept a secret list of all the titles he had imagined for a particular photograph. As he had a prolific career, he must have made quite a bit of these lists. But he wanted to keep them secret, and he never shared them with anybody, and did not publish them. 

While it may seem farfetched to give a title to a fashion photography, Guy Bourdin’s works are beautiful and intriguing, and knowing their secret titles would certainly have been interesting. You can see some of his photographs here and here. Guy Bourdin died in 1991, but he is still an influential fashion figure today.

Journalist Arthur Dreyfus wrote for Vogue Paris that he had bought a chair from the famous Studio 54 in New York at an auction. He found under the cushion a list of titles written in pencil by Guy Bourdin, all the secret titles for a particular photograph published in Vogue in April 1985, which shows a woman lying on a dance club floor, grabbing the ankle of a woman wearing glittery silver stilettos. 

 

Guy Bourdin (c) The Guy Bourdin Estate

The article reveals the 23 titles Guy Bourdin had imagined for this particular photograph. He was a French citizen, lived in France, and thus his works are still protected by the French droit d’auteur. How could the droit d’auteur view this publication? 

Le Titre

First, can titles be protected? Article L. 112-4 of the French Intellectual Property Code specifically protects the title of a work protected by copyright, if it is original enough. 

The particular photograph is original enough to be protected by copyright. Therefore, its title can be protected if original enough. In our case, we do have a list of titles (more about thatlater). Some of them, such as “Le pouvoir de l’argent” (the power of money), may not be original enough by themselves, but others certainly are, such as “La Belle en boîte dormant [trop bouffon]”, (the Beauty sleeping in a club, [too funny] with a pun on Bois, wood, and boîte, club).

La Liste

In our case, the list had 23 titles, all published in the Vogue article. This is a compilation of elements. We saw that some titles are protected by copyright, but others are not. However, the list can be entirely protected by the droit d’auteur as a “compilation” (same word in English and in French). The compilation has to be original enough, which is the case here. So the entire list is also protected.

Le Droit Moral

Guy Bourdin had not published the list in his lifetime. The article explains that he actually refused to make the lists of titles he invented for his photographs public, and that he kept them secret. It is only by accident that Arthur Dreyfus was able to acquire one of them, and he had the knowledge to understand the significance of the discovery. 

Since the list is protected by the droit d’auteur, its author also benefits from the protection of droit moral. One of the rights provided to authors by the French droit moral is the right of first publication. Only the author has the right to decide to publish his work, article L. 121-2 of the French Intellectual Property Code.

Droit moral is “permanent, inalienable, and imprescriptible,” article L. 121-1 of the French Intellectual Property Code. It can be bequeathed, and heirs may thus exercise this right as long as they know they have it (somebody still owns the moral right in Molière’s plays, but nobody knows who is it [could it be YOU?]).

In one somewhat recent case, Victor Hugo’s heirs had unsuccessfully tried to prevent the publication of a sequel to Les Misérables, but the Cour de cassation, the French Civil Supreme Court, held that freedom of expression, as protected by Article 10 of the European Convention on Human Rights, must prevail over moral rights. 

In our case, the Estate of Guy Bourdin may have authorized the publication of the list. It is certainly a decision which benefits the public, as the list reads like a poem, and makes us wonder if the other lists, lost forever, were as beautiful.

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.  

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.

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

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.

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. 

Jean Nouvel Sues the French Music Complex He Designed, Claiming Breach of His Moral Rights

French newspaper Le Monde reported last week that architect Jean Nouvel is suing the Philarmonie de Paris, claiming that its premature inauguration of a building he designed is a breach of his moral rights. 

Jean Nouvel won in 2007 an international competition launched to design the Philarmonie de Paris building, financed 100% by public money, the French government and the city of Paris. It is a cultural complex dedicated to music located in the Parc de la Villette area of Paris, featuring a concert hall and exhibitions spaces. The Orchestre de Paris is its resident orchestra and it will also host other orchestras, dance companies, and exhibitions.

The building was inaugurated last January 14. The same day, Jean Nouvel published an editorial in Le Monde, where he explained that he did not attend the inauguration because he believes that the building has been opened to the public too soon, without fine tuning its acoustics. The architect also claimed that the project managers cut corners to save money during its completion, and the result is that “[t]he architecture is martyred, the details sabotaged, so taxpayers will have to pay, once again, to correct these aberrational decisions.” Mr .Nouvel claimed that the inauguration of the building was “premature” and claimed a breach of his moral rights. 

He then filed suit against the Philarmonie de Paris in the Tribunal de Grande Instance de Paris (TGI).  Both parties presented their arguments on February 13. According to the Le Monde article, Mr. Nouvel is not asking for damages, but is asking the TGI to order the Philarmonie de Paris to make adjustments to twenty-six areas which are not, according to him,  in compliance with his original design, among them the foyer, the parapets, and reflectors in the concert hall. As long as these modifications are not made, he is asking the Philarmonie de Paris not to use his name and his image in connection with the project. 

Droit Moral of Architects

Building and Judging Both Requires Balancing Skills

I did not find the complaint, and thus I cannot discuss the arguments of both parties. However, while architects are indeed considered authors under French intellectual property law, their droit moral is not without limits, due to the utilitarian nature of their creations. Therefore additional considerations, such as public safety, may trump the architect’s moral rights. For instance, the French Supreme Civil Court, the Cour de cassation, held on January 7, 1992, that “the practical use of a building commissioned to an architect prevents him to try to impose an absolute inviolability on his work, to which its owner has the right to make changes when it becomes necessary to adapt it to new needs. Nevertheless, it is for the judicial authority to assess whether these alterations to the architectural work are legitimized, given their nature and their importance, under the circumstances which forced the owner to undertake them.” 

The Cour de cassation provided in 2009 a balancing test to be used by judges in these cases. They must “determine whether by their nature and importance, the changes made did or did not exceed what was strictly necessary and were or were not disproportionate to the aim pursued by the owner.”

Judgment is expected in the spring, and we’ll report on it then.

Image is courtesy of Flickr user U.S. Geological Survey under a CC BY 2.0 license. 

French Mayor Sued by Artist for Repainting Fountain Without Authorization

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.  

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.

De Gustibus…

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…

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.