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.
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