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.

A Painting Given to Eric Clapton Cannot be Used on Album Cover Rules French Supreme Court

The French civil Supreme Court held on October 10, 2018 that the right to first publish a work belongs only to the author or his heirs, and that, therefore, a painting given in 1970 to famous musician Eric Clapton, and subsequently used on the cover of one of his most famous albums had not been published by the author.

During the Summer of 1970, Eric Clapton and his then music group 'Derek and the Dominos' stayed in Valbonne, in the South of France, at the home of Emile de La Tour Saint Ygest, who was living alone at the time in the house of his illegitimate father, French-Danish painter Émile Théodore Frandsen.

During this stay. Emile de La Tour Saint Ygest gave La Jeune Fille au Bouquet to Eric Clapton, who used it on the cover of his Layla and Other Assorted Love Songs album, published by Polydor. 

The painting was thus featured for more than 40 years without any issues. In November 2009 Polydor published a collector’s box featuring the original cover of Layla to celebrate the 40th anniversary of the album.

The box featured a ‘Pop-up 3D Artwork,' a 3-D representation of La Jeune Fille au Bouquet as a folding cardboard. The box also featured an 'art guitar scratch-plate sticker,' a sticker reproducing the painting which could be put on a guitar, and also the reproduction of the cover on cardboard in the shape and format of a LP.  

Monique Frandsen de Schomberg, a legitimate daughter of the painter, filed a copyright infringement suit in 2013 in Paris, claiming that the use of the painting on the cover of the album and on the box infringed her father’s patrimonial and moral rights.

This original complaint did not prosper as the court ruled it to be invalid because the authorization of all of Mr. Frandsen’s heirs had not been secured. Monique Frandsen de Schomberg then filed another complaint, claiming only violation of moral rights.

The court of first instance, the Tribunal de Grande Instance de Paris, ruled in her favor in January 2016. Defendants Eric Clapton and Polydor appealed. The Paris Court of Appeals confirmed the judgment in March 2017.

Two moral rights: the right of integrity and the right to first publish

Article L 121-1 of the French Intellectual Property Code provides a perpetual and inalienable moral right to the author of the work:

“An author shall enjoy the right to respect for his name, his authorship and his work. This right shall attach to his person. It shall be perpetual, inalienable and imprescriptible. It may be transmitted mortis causa to the heirs of the author. Exercise may be conferred on another person under the provisions of a will.” (A complete, but not updated translation of the French Intellectual Property Code is available on this page).

Monique Frandsen de Schomberg argued on appeal and at the Cour de cassation that defendants had violated the right of the author to first publish the work (droit de divulgation) and also that they had denatured the work.

Moral Right: right of integrity

The Court of appeals had not found that the use of the painting on the original album cover was a violation of moral rights, because the painting had not been truncated or otherwise altered, and the signature of the painter was clearly featured.

The Cour de cassation confirmed this reasoning, as the work had been used to illustrate the cover of the album, but not as advertising.

The Court of appeals had found however that the use of the painting on the cover in the collector’s box violated the moral right of the author as it distorted the work (dénaturer l’oeuvre.)

It is worth noting that the Court of appeals took the view that its jurisdiction in this case did not extend beyond the French borders, as none of the Defendants were established in France. Therefore, it could only award damages as they had occurred in France. Polydor had sold, from 2009 to 2005, 7,407 Layla albums and collector boxes  The Court of Appeals approved the Court of first instance for having granted 15,000 euros to the plaintiff in damages.

Moral Right: right to publish the work

The Paris Court of Appeals had also ruled that, because the right to first publish the work is exhausted when first exercised, and it had been, in this case, when given to Eric Clapton in 1970.  

The Cour de cassation disagreed on this point, and sent the case back to the Versailles court of appeals on remand.

France’s highest Court cited article L11-3 of the French Intellectual Property Code, stating that owning a protected work does not grant the intellectual property rights assigned to its author, and article L121-2 of the same Code, which gives to the author the exclusive right to publish her work.

For the Cour de cassation, giving the “material support of the work” (support matériel de l'œuvre) to a third party is not enough to establish that the author or his heir has exercised the exclusive right to publish the work. The Court concluded that therefore the Court of appeals had erred when ruling that the right to first publish the work had been exhausted in 1970.

Monique Frandsen de Schomberg had argued in front of the Cour de cassation that Emile de La Tour Saint Ygest had not been recognized by Emile Frandsen, that he was not his heir, as the estate had been devolved exclusively to her brother and herself, and that therefore handing over the painting to Eric Clapton was not publishing the work.

The Versailles Court of appeals will now have to decide whether this right has indeed been exercised by the author or his heirs. It is likely to spur a legal fight over whether plaintiff truly has the right to defend Frandsen‘s moral rights.