NEWS

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07-02-2019

 

What remains of the right to paternity ? 

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The Rennes Court of Appeal ruled on September 18, 2018 that an author could not invoke the infringement of his right to paternity, due to the commercial exploitation of his work, without the mention of his name, in the insofar as he knew that his work would be commercially exploited and that he did not require, during the transfer of copyright, that his work be exploited with the mention of his name._cc781905-5cde-3194-bb3b- 136bad5cf58d_

A visual artist and graphic designer assigned her copyrights to her designs to a jewelry designer. The latter marketed jewelry made from these designs, without mentioning the name of the author. After several years of exploitation, the author of the drawings sued the assignee because of the infringement of his moral rights.

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The Rennes Court of Appeal upheld the judgment of the Rennes High Court which dismissed the author's action, considering in this case that there was no infringement of the right to paternity._cc781905 -5cde-3194-bb3b-136bad5cf58d_

After recalling the principle that the author's moral rights are absolute " personal, inalienable and imprescriptible ", la Cour of appeal of Rennes ruled that the infringement of the moral rights of the author was not, in this case, established, insofar as it bb3b-136bad5cf58d_knew that the drawings she gave were to be commercially exploited, [she] did not request that these be distributed under her name ", the Court therefore considers_cc781905-5cde-3194 -bb3b-136bad5cf58d_“ that she cannot seriously complain about it many years later ”._cc781905-5cde-3194-bb3b-136_bad5cf58d

Thus, the Court of Appeal of Rennes considers that when an author knows that his creations, of which he transfers the copyright, will be commercially exploited by the transferee, he must expressly request during this transfer, that his name be mentioned. Failing this, he cannot then complain about the absence of the mention of his name.

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Through this reasoning, the Court of Appeal dismisses the principle enshrined in Article L. 121-1 of the Intellectual Property Code, which it nevertheless itself recalled, according to which moral rights are absolute._cc781905- 5cde-3194-bb3b-136bad5cf58d_

Due to the very nature of the applied arts, it is common for judges to adjust the protective rules of copyright, and in particular the to reconcile them with economic imperatives. It has thus been accepted that the right to authorship of the work may be limited to the mention of the name of the author on the drawings and models of automobile bodywork, the author not being able to “   to be entitled to demand the affixing of his name to the industrial productions of his work ” (CA Paris, Nov. 22, 1983). La Cour de cassation  a également admis que « l'autorisation faite par l'auteur au cessionnaire a right of exploitation not to mention his name on the articles reproducing his works does not imply alienation of his right of paternity, as long as he retains the right to demand the indication of his name_cc781905 -5cde-3194-bb3b-136bad5cf58d_” (1st Civil, Feb. 13, 2007). 

 

 

However, in this case, the reasoning of the Rennes Court of Appeal goes beyond the simple reconciliation between copyright protection and the economic exploitation of works of applied art. A new step seems to have been taken. The Court of Appeal of Rennes accepts the principle of a tacit renunciation of the author to exercise his right to paternity, which it deduces from the fact that the author did not require the mention of his name in the contract assignment of copyright (and its silence during several years of exploitation). This case law considerably diminishes the scope of the right to paternity of authors of works of applied art and is even contrary to article L. 112-1 of the CPI as well as to the theory of the unity of art. The judge cannot take into account the destination of the works to limit the protection conferred by copyright. 

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Thus, in application of this decision and contrary to the authors of " beaux-arts ", the creators of works of applied art must ensure that they stipulate in the copyright assignment contract, that their name be affixed to the articles incorporating their creations. Failing this, the judges may unfortunately consider that this silence constitutes a tacit waiver of their right to paternity.

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CarolCouson-Warlop, Lawyer, ARTLEX, Nantes 

Morganblow, Lawyer, ARTLEX, Nantes

 

#Intellectual Property, Literary and artistic property, copyright, moral rights, right to paternity, tacit waiver, applied arts, graphic artist, work, assignment, contract, Rennes Court of Appeal