Copyright vs Freedom of expression

Published onJuly 2015

A very recent decision issued by the French highest civil Court accepts that copyright may be limited to ensure protection of the right to artistic freedom.

A painter had reproduced three photographs into his paintings, without requesting prior authorization from the photographer. Before the Court of Appeals of Paris, the painter was condemned for infringing the photographer’s copyright and sentenced to pay 50,000 euros in damages (1).

However the painter’s arguments partly convinced the French Cour de cassation (2).

On the one hand, the photographs were found original indeed, thus benefitting from protection under copyright law and the Intellectual Property Code. But on the other hand, referring to Article 10§2 of the Convention for the Protection of Human Rights and Fundamental Freedoms about Freedom of expression (3), the Supreme Court decided to annul the decision from the Court of Appeals.

The Cour de cassation asked that a just and balanced interpretation of both copyright law and the principle of Freedom of expression should be made in order to establish if there might be some cases where an artist’s right to artistic freedom may justify a restriction to copyright.

In this particular case, the painter argued that he chose the three photographs because they were advertisement photographs (4) and that he deliberately reproduced them into his own creations in order to cause reflection on the part of the viewers by distorting their primary purpose or end.

Now the Court of Appeals of Versailles will hear the case and will have to decide if (and potentially explain how) such an artistic approach is a just reason for denying an author’s copyright.

© INSCRIPTA

(1) Court of Appeals of Paris, 18 September 2013.

(2) Cour de cassation, 1st civil chamber, 15 May 2015, Case No.13-27391.

(3) “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

(4) That was contested by the photographer.