Wednesday, 10 April 2013

Copyright and Parasitism in the French Art World

                                                                 
Who are you calling a copycat?
The Paris Court of Appeal has recently handed down a ruling involving a dispute between two fellow painters.  Troy Henriksen alleged that Corinne Dalle Ore, after having visited his workshop, produced work that was disturbingly similar to his own and brought suit for infringement of copyright and parasitism (the latter being a legal characterization akin to unfair competition and based on the general tort of negligence under Section 1382 of the French Civil Code).

While the trial court agreed with the plaitiff on both counts, the Court of Appeal was more nuanced in its approach, finding in favour of the plaintiff on grounds of parasitism but rejecting the claims in copyright infiringement.

While in no way disputing the originality of the works created by Henriksen (and hence the fact that copyright subsisted therein), the Court found that the mere "impression of proximity" between the two artists' works did not constitute a reproduction within the meaning of copyright law.

On the other hand, the Court felt that the proximity between the two artists' workproduct could not have been the result of a common inspiration but rather was designed to generate a risk of assimilation or association between the two oeuvres.  It found that Henriksen had created something of economic value and that the defendant's work's proximity therewith was of a nature to give her an unwarranted advantage, i.e. that the various conditions of a parastical conduct claim under French law were satisfied.

Finally, the Court awarded Henriksen (and his gallery) damages in the amount of €5,000.

The ruling is noteworthy because it goes into some depth of a painting-by-painting analysis of the various similarities and differences between the works and the legal relevance (or irrelevance) thereof.  It also serves as a useful reminder that copyright (and infringement thereof) need not be the be-all and end-all of all copy-related claims.

The decision is Paris Court of Appeal, Pole 5, 1st Chamber 27 February 2013 RG 12/01050 (I would be pleased to send a copy to readers upon request).
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9 comments:

  1. Lucile10 April 2013 at 11:20

    interesting. Reminds me of Braque and Picasso in 1909-10. Sometimes it is difficult to know who painted what. But they worked closely together and I don't think there was a case of parasitism.

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  2. French Defection10 April 2013 at 23:32

    hi I would love a copy of the case. jani.mccutcheon@uwa.edu.au

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  3. Anonymous11 April 2013 at 19:29

    Please send a copy to hultengrunnet@webspeed.dk

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  4. Uncle Wiggily12 April 2013 at 00:11

    Is there any reason whatsoever why you can't post a link to the decision and copies of the pictures in question? The 1709 blog is usually helpful in this respect.

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  5. Jeremy12 April 2013 at 08:44

    I've asked the author of the blogpost if he can provide the requested material. Just hold on there!

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  6. john walker13 April 2013 at 02:43

    Jeremy 'Appropriation' has been a widespread practice in art for decades- would such a case work out the same, in UK and other common law countries?

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  7. Jeremy14 April 2013 at 17:02

    Here's the text of the judgment (thanks, Asim!)

    https://sites.google.com/site/1709blog/copyrightcases/Cour_dappel%2C_Paris%2C_P%C3%B4le_5%2C_chambre_1%2C_27_F.DOC?attredirects=0&d=1

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  8. Uncle Wiggiliy14 April 2013 at 23:45

    Dear Jeremy:

    If a picture is worth a thousand words, think what two pictures would be worth - especially in this case of battling pictures,

    In the absence of these pictures, this post from FrenchKat is francly - oops, I meant "frankly" - not very useful to 1709's usually well served followers...

    This time, well served - not so much....

    Old Uncle Wiggily

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  9. john walker15 April 2013 at 23:16

    Jeremy what does 'parasitism' mean in french law?

    Whilst it would be nice to see the pictures it isn't that critical;
    As far as I know , there is nothing wrong about painting a very close copy , as long as you did not copy the signature.

    So what is going on in this case?

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