Right of Publicity Trumps Artistic Freedom of Expression

A recent ruling by the Paris High Court (10 January 2013) in expedited or summary proceedings (référé) (see here) highlights the tension that can exist between the right of publicity (droit à l'image in French law parlance) and artistic freedom.

A renowned Spanish artist used some photographs taken of his former girlfriend to create works of contemporary art.  As the pictures at issue were initimate in nature, she objected and based her action on article 9 of the  Civil Code which protects privacy and the right of publicity.  The artist retorted that he was entitled to rely on article 10 of the European Convention on Human Rights protecting freedom of expression (including artistic expression).

The Court first dispensed with the threshold question of whether the plaintiff was recognizable in the pictures at issue (finding that she was indeed) and then continued its analysis by ascertaining whether or not the plaintiff had consented – expressly or impliedly – to the taking of the pictures and their subsequent reproduction and dissemination.  Note that in order to be successful, such a defense of consent must prove that the plaintiff consented not only to the picture being taken but also to its subsequent reproduction and dissemination.

It concluded that her behaviour could indeed be interpreted as consent with respect to one such picture due principally to the fact that she had attended the ceremony at which the artist had received a prize for the work created on the basis of such picture (actually, to be precise it concluded that there was a genuine issue as to such consent with regard to this picture, which was sufficient to conclude that référé proceedings were not appropriate).  However, with respect to the other pictures, it found no evidence that she had consented to their being reproduced and disseminated.  With respect to these pictures, the Court then proceeded to balance the two competing interests, finding in favour of the plaintiff :

« … it appears obvious that Virginie G.’s right not to have made public pictures of her in scenes that relate to her private and initimate life must prevail over Juan F.’s freedom of expression, be it of an artistic nature. »