Copyright and freedom of expression

Monday 10 October 2022

Emmanuel Pierrat*
Pierrat & Associates, Paris

On 31 March 2022, the Judicial Court of Nanterre in France issued a decision according to which ‘in the absence of disproportionate infringement’, the right to inform is more important than the copyright.

The case concerned a photograph of Dutch actress Sylvia Kristel that was used to promote the movie Emmanuelle. The photograph had been reproduced by the newspaper Marie-Claire in an article relating the actress’s death.

Before the courts, the photographer’s claims for infringement were dismissed: ‘with regard to the right of information, with regard to the nature of the publication and the treatment of the news item that it serves in a legitimate logic of informing the public, the absence of real hindrance to the free exploitation of the work, which is in no way devalued by this use.’ In fact, the judges had considered that ‘the infringement of the photographer’s copyright was minimal’.

The judges specified that:

‘The illustration of the article is in perfect adequacy with its content and only indirectly relates to the protected work since, in reference to the film to which Sylvia Kristel owes most of her notoriety and to the affectionate words of its director, it reproduces the cover of the latter when it was released on DVD, which is emblematic of this link and of the role played by the deceased actress, not as a photograph constituting an original work, but as an element of identification of a film that summarises a career and a friendship.’

Moreover, the judges added that ‘the publication of an obituary implies a certain urgency that can explain the absence of research prior to publication allowing the determination of the author and obtaining his authorisation’.

In recent years, the European Convention on Human Rights had been invoked on several occasions to combat a copyright that is considered to infringe freedom of expression.

For example, in the Ashby Donald and others v France case of 10 January 2013, the European Court of Human Rights considered that ‘freedom of expression being of greater or lesser force depending on the type of speech, distinguishing the situation where the strictly commercial expression of the individual is at stake from that where his participation to a debate affecting the general interest is at stake’, but also recalled that, according to Article 10 of the European Convention, ‘limitations to the freedom of expression are allowed when they are provided by law, justified by the pursuit of a legitimate interest and proportionate to the aim pursued (ie, made necessary in a democratic society)’.

Using this case law, the French Court of Cassation ruled in an unprecedented way, in a case that took place on 15 May 2015, in which a fashion photographer opposed the artist Peter Klasen, who had used three of his photographs to create some paintings.

In this particular case, no authorisation had been given by the photographer and, therefore, he sued Klasen for infringement. To decide the matter, the French Court of Appeal followed the previous and well-established jurisprudence and ordered the painter to pay €50,000 of damages ‘in reparation for the prejudice resulting from the infringement’ of his ‘patrimonial rights’ and his ‘moral rights as an author’.

The painter then submitted an appeal in cassation which was based on various arguments. Among these, he argued that:

‘Limitations to the exercise of freedom of expression, which includes freedom of artistic expression, are allowed only if they are proportionate to the legitimate aim pursued, that is to say, if they are necessary in a democratic society because of a compelling social need, […] proportionality must be assessed in concreto, taking into account, in particular, the nature of the message and the extent of the infringement of the competing right.’

According to Klasen, ‘the artistic approach was meant to arouse a social reflection’, which can prevail over some ‘photographs of fashion’.

The painter also pleaded that ‘the judge cannot rule by way of a general affirmation’. However, the Court of Appeal limited itself to asserting, in a peremptory way, that the rights on the allegedly infringing works could not, for lack of superior interest, prevail over those of the works from which they were derived [...] without justifying its affirmation’.

To set aside the decision of the Court of Appeal, the magistrates considered that this one ‘retains that the rights on works argued of infringement could not, for lack of superior interest, prevail on those of the works from which these are derived, without disregarding the right to the protection of the rights of others in artistic creation’. And ‘that by determining itself thus, without explaining in a concrete way in which way the research for a just balance between the rights in presence commanded the condemnation which was pronounced, the court of appeal deprived its decision of legal basis with regard to the aforementioned text.’

Some specialists had already expressed interest in that subject in a decision of the High Court of Paris, which took place on 23 February 1999. This case opposed the French television channel France 2 to one of the painter Utrillo’s heirs and went to the French Court of Cassation.

The first instance magistrates had accepted the reasoning of the television channel, which had invoked the European Convention on Human Rights, by concluding that ‘a report representing a work of an artist only broadcast in a television news, of short duration, does not infringe the intellectual property rights of others since it will be justified by the right of the televiewer to be informed quickly and in an appropriate way of a cultural event constituting an immediate topicality in relation to the work of its author’.

Another case law by the Court of Appeal of Versailles in France, ruled on 16 March 2018, set up a ‘reading grid to assess the balance of interests’. In the end, the Court judged that it resulted ‘from the facts of the case that the research for a fair balance between the freedom of expression of the painter, which did not justify that the use of the photographs without any previous authorisation was necessary for its exercise, and the copyright of the photographer justified that he had to pay him damages in reparation for the infringements committed’.

Furthermore, the arguments that are related to freedom of expression were used by the defence of famous visual artist Jeff Koons, who was prosecuted for forging a photograph in order to create a sculpture called Naked.

The High Court of Paris did not follow this reasoning in its judgment of 9 March 2017, which was later set aside by the Court of Appeal, on 17 December 2019.

Lastly, the 2022 French presidential elections are a good example to illustrate the debate between freedom of expression and copyright. In fact, candidate Éric Zemmour produced a video for his campaign, using movies of well-known French film directors without asking for any authorisation. Yet, on 4 March 2022, the High Court of Paris emphasised that ‘freedom of expression does not justify infringement of the moral rights of the authors of counterfeit films’. It ‘must be exercised respecting the other fundamental rights, such as the right of ownership, from which copyright derives’.

The judgment specifies that the ‘balance of interests’ has to be taken into account when freedom of expression and copyright protection are opposed. Exceptions to the principle of our cherished freedom, which is recognised in constitutional and community law, are indeed possible if they are provided by law, as is the case with copyright.

It is the same ‘main purpose’ criterion that the judges used here, deciding that the excerpts do not constitute the subject of the disputed video, and that they could have been replaced by other excerpts free of rights. As a matter of fact, the campaign clip does not constitute a means of expression on the works, which are cited in an approach of illustration, but not to arouse a debate.

In short, the confusion is immense because the ideas on the freedom of creation and expression are back in fashion again among politicians and magistrates – not always for the best.

* Emmanuel Pierrat is an Attorney at Law (Paris Bar), a specialist in intellectual property law, a former member of the National Bar Council and a former member of the French Bar Council Pierrat & Associates.