New Approach to Conflicts between Pre-existing Works and Derivative Works under French Law?

The balance to be struck between the rights of the author of a pre-existing work and those of the author of a work derived therefrom is a recurring and vexing issue in French copyright law.

In theory, there is no balance; rather, the author of the pre-existing work is all powerful.  Section L.113-4 of the Intellectual Property Code provides that the derivative work is the property of its author, subject to the rights of the author of the pre-exsiting work.

It has been held that this means that the author of the derivative work needs the consent of the author of the pre-existing work both at the stage of creation of the derivative work as well as with respect to the various forms of exploitation thereof.  Naturally, such consent is ususally given in exchange for a share of the revenue generated by the derivative work.

Applying the principles to a recent case involving a painter's unauthorized incorporation of photographs into his work, the Court of Appeals had held that the resultant painting constituted an infringing work and ordered its author to pay €50,000 by way of damages to the photographer.

Surprisingly, on May 15th, the French Supreme Court, citing Article 10 (2) of the European Convention on Human Rights (freedom of expression), reversed this ruling, opining that : "in so holding, without explaining in a concrete fashion how the search for a just balance between the competing rights required the order it made, the court of appeals deprived its decision of a legal basis".

It is striking that the Supreme Court explicitly refers to a "just balance" of the competing rights. This new approach, if followed by the lower courts, would limit the power of the author of a pre-existing work.  A finding of infringement and damages would only be awarded after careful consideration of such a balance between his rights and those of the author of the derivative work. 

Link to ruling here