For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

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Sunday, 16 March 2014

Thinking of moral rights ... in Paris (ça va sans dire)

A French beret is a must-wear for Merpel,
especially now that it has
some added IP-related relevance
Even when she is in Paris, the trees are blossoming, and there are no actual IP disputes at stake or even just in sight, can a Kat truly stop thinking about potential copyright issues? Clearly, the answer is 'no'.

After waiting for it for a long time, yesterday this Kat had the opportunity [or, rather, the chance] to visit the majestic Henri Cartier Bresson exhibition at the beautiful Centre Pompidou together with Merpel [who also happens to be in Paris].

Cartier-Bresson is known as the father of modern photo-journalism and inventor of the expression 'the decisive moment' [also a book], which he himself defined as follows:

"Photography is not like painting. There is a creative fraction of a second when you are taking a picture. Your eye must see a composition or an expression that life itself offers you, and you must know with intuition when to click the camera.
That is the moment the photographer is creative. Oop! The Moment! Once you miss it, it is gone forever."

One of this Kat's favourite
Cartier-Bresson pictures
Cartier-Bresson was apparently very much concerned with having the spirit of his work respected. During the 1970s he gradually stopped taking on photo report assignments and spent significant time supervising the organisation of his archives, sales of his prints and the production of books and exhibitions.

What is special about this Paris major retrospective, besides being a monumental one that spans across the long life of Cartier-Bresson, who was born in 1908 and died in 2004?

As this Kat discovered at the very entrance, it is that it is intended to show that "there was not one but several Cartier-Bressons." Up until his death, in fact, "all the monographic exhibitions supervised by the photographer himself were entirely printed for the occasion as a collection of prints in one or two formats, on paper with the same quality of grain, tone and surface. The result was a very uniform appearance that tended to level out a highly varied range of work. This retrospective respects the historical context of the picture by, whenever possible, using prints made at the time the photographs were taken."

Of course, there is no copyright dispute in sight with this Cartier-Bresson exhibition. But - speaking hypothetically - could a photographer's right of integrity come into question when, after his/her death and for the first time, you break the apparent uniformity of his/her work that he/she himself/herself contributed to creating, and use a number of different printing techniques to show all this?

What is special about the
Centre Pompidou's exhibition
Let's start with French law. Article L-121-1 of the French IP Code apodictically [this is the expression that Dietz used in a 1994 articlestates that the author has the perpetual right “au respect de son nom, de sa qualité et de son oeuvre”. 

This provision has been interpreted by French courts in the sense that even mere use of works out of context [without any actual "treatment of the work" being necessary] may amount to an infringement of one's right of integrity. 

When it comes to photographs, is it thus arguable that using printing techniques that are somehow different from those that the author used to employ for his/her exhibitions may amount to a violation of his/her moral rights? To say the least, such claim would not be discarded as being prima facie unacceptable. At the end of the day, moral rights à la française are "enviée des auteurs du monde entier."

Under UK law or even the laws of traditional droit d'auteur traditions, eg Italy, such claim would be more difficult to bring successfully. This is because in both cases the law requires an actual treatment of a work that may be prejudicial to an author’s honour or reputation. Is the use of a printing technique a 'treatment'?

Section Article 20(1) of the Italian Copyright Act vests authors with the right to oppose any distortion, mutilation or any other alteration that may be prejudicial to their honour or reputation.

Similarly to other common law traditions, UK law has been traditionally wary of granting broad protection to moral rights. The right of integrity under UK law draws upon Article 6bis of the Berne Convention, but - according to Cornish, Llewelyn and Aplin, is even in "apparently narrower terms”. 

Section 80 CDPA provides the author with the right not to have his work [done after 1 August 1989: see Sch 1, para 22(1)subjected to derogatory treatment, ie any addition to, deletion from or alteration to or adaptation of the work (other than literary translations and musical arrangements or transcriptions), that amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author.

Overall, it would seem that the right of integrity under UK law does not protect against non-transformative uses of one’s work. As a result, exact but miniaturised reproductions of artistic works [this was the 1995 Tidy v Trustees of the Natural History Museum case] or colour variations between an original artwork and a reproduction of it [this is the 1999 Pasterfield v Denham decision] may be considered not to infringe the author’s right of integrity.

What do readers think of differences in the scope of moral right protection? Is there anyone who is aware of cases in which courts have considered printing techniques in the context of moral rights claims?

8 comments:

Andy J said...

Until the European commission decides that in the interests of harmonisation, moral rights should be universally acknowledged to the same standards across the EU, we are going to have to live with the anomalies that exist now. Et vive la différence. But I would pose a slightly different question. M Cartier Bresson's work will remain in copyright for many years to come, and no doubt his estate will licence or authorise many reproductions of his works during that time. Can they, the trustees of his estate, authorise variations to the great man's work? Clearly the droit d'auteur is personal and non-transferable except by testamentary disposition, and Berne art 6bis requires the heirs to maintain those rights, but would this include authorising uses or versions of which the great man himself would not have approved? Furthermore, under French law the droit d'auteur is perpetual, but the rights of the trustees remain only as long as copyright subsists. Who then is the true guardian of the droit d'auteur after copyright has lapsed? This is very much the question in the case of ArmaLite and Michelangelo's statue of David which has been discussed recently on the IPkat and Art and Artifice blogs? And how can we judge what Michelangelo would or would not have approved of? Clearly tastes and attitudes change over time so, by what yardstick should affronts to the droit d'auteur be measured, centuries after the author himself has died?

Andy J said...

Sorry, that's the problem with posting before the first cup of coffee has taken effect. My references above to 'droit d'auteur' should of course be to 'droits moraux', the former being more equivalent to copyright itself.

Anonymous said...

Here in the US, we have no sense of this droits moraux, and in fact, such seems to go against our constitutional directive for protection to be for strictly limited times.

I am curious as to how any international treaty (if even agreed to) would - or could - be implemented in our laws.

Roufousse T. Fairfly said...

Is there anyone who is aware of cases in which courts have considered printing techniques in the context of moral rights claims?

Is the typography a component of the printing techniques?

Emmanuel Pierrat, Le droit d'auteur et l'édition, Éditions du cercle de la librairie, Paris, 2005, p. 47:

Les juges nationaux ont aussi admis au sein des oeuvres protégéables [par le droit d'auteur] les compositions typographiques, dont les traces les plus marquantes sont bien évidemment les calligrammes ou encore certains ex-libris. Mais les compositions moins spectaculaires sont tout autant protégées. Elles doivent pour cela répondre à la condition d'originalité [cf. première chambre civile de la Cour de cassation, 15.07.1993, Revue int'l du droit d'auteur].

In the following paragraph droits moraux are apparently referred to:

Toute composition originale bénéficie donc du droit de la propriété littéraire et artistique et permet à l'auteur ou à ses ayants droit de s'opposer, par exemple, aux "reprints" faits sans autorisation. Nombre de reprises de textes tombés dans le domaine public ne peuvent donc s'effectuer que sous réserve d'une recomposition.

I can only find mentions of printing techniques (paperback, microfilm, e-book, etc.) under contract law. A model publishing agreement on p. 331 is provided, which bestows the publisher permission to print the book in all thinkable formats (critical edition, mass market, school edition, large characters, as a part of an anthology, etc.). On page 121 it is however emphasized that the publisher cannot make editorial changes without the author's consent, whose moral rights are inalienable.

Concrete examples of moral rights provided concern the colorization of photographs and motion pictures.

Eleonora Rosati said...

@Roufousse: Thanks so much for your helpful and thorough comment. Re: colourisation of movies, if I am not mistaken (this is discussed at some length in Decherney's Hollywood's Copyright Wars) this practice led US film-makers to campaign (not so successfully) in favour of some form of moral right protection also in the US.

@Anonymous at 13:56: Indeed. I also remember that after joining Berne, the US thought that it did not need to change its law on moral rights because a degree of protection comparable to what is mandated under Berne already existed as a mix of federal and state laws. Certainly the VARA was very different from moral rights legislation as is intended in Europe.

@Andy: I have always struggled with these concepts too. In any case, the right of integrity pertains to the work (and not its mere reproductions). Overall a judge might dismiss an action brought by an author's estate on grounds of "lack of interest", and I reckon that this has happened quite often in France.

john r walker said...

Speaking as an artist who is married to a historian, I feel a bit conflicted about this. On the one hand to exhibit pictures that are not as Cartier-Bresson, ultimately, intended them to be, is close to showing things that are not 'Cartier-Bresson's' as if they were genuine signature works.

On the other-hand the historian side of me really wishes I could be in Paris and be able to see this show.

On balance, Cartier-Bresson is dead- "past caring", and the exhibition is showing pictures that were printed (and published?) at the time they were taken, therefore I think that the historian side wins this one :-)

Anonymous said...

I think we need to be very precise here. First of all, printing in photographic terms has nothing to do with typography. “les compositions typographiques, dont les traces les plus marquantes sont bien évidemment les calligrammes” – I would not agree with Pierrat, because typography as printing was very dominant in early Futurist art [see Alan Bartram, “Futurist typography and the liberated text”, London: British Library 2005], and artistic printing was probably more widespread in our Western world than calligraphy og ex libris-es. Anyway, type-faces were to a very large extent copyrighted, but of course the copyright did not extend to the words composed (the content).

Secondly, the work of art that Cartier-Bresson made was the version described that created a uniform appearance. That is the work of art that must not be treated in a disrespectful manner. Disrespectful could be the addition of moustaches, although perhaps that would come under the concept of satire. But the adding of lines to better describe the composition of a photograph for use in exhibition in a version placed next to the original I would consider analytical and not disrespectful.

This leads us to source-critical analysis using his raw materials, such as negatives or a group of negatives (of which he only chose to use one, and in a trimmed version at that). That, in my view can never be considered disrespectful of his work of art, but it is the necessary art historical analysis that enables us to understand his art. If he had not intended this material to be available for research, he should have destroyed it himself. Poets and other writers have done it, because they did not want anybody to be able to trace the creative process – that was their right. Kafka was unsuccesful, because he delegated. We are all pirates when we enjoy (or shudder at) his work.

Kind regards,


George Brock-Nannestad

ex-examiner said...

Regarding colorizing of films, I understand that the heirs of Orson Welles were able to prevent the production of a colorized version of "Citizen Kane" by relying on contract law: his contract with the studio explicitly referred to the production of a Black and White film.

I think that a problem with copyright law, in the UK at least, is that the legislation historically only appears to have contemplated copyright existing in the medium on which the original image was recorded, prints are only being protected via the copyright which exists in the original recording medium.

The 1956 Copyright Act defines a "photograph" as "... any product of photography ... other than part of a cinematographic film", ,and "author", in relation to a photograph, as "the person who, at the time the photograph was taken, is the owner of the material on which it is taken".

The CPDA 1988 definitions are "author" is the person who creates an artistic work (which includes a photograph), and "photograph" means "a recording of light... on any medium on which an image is produced, or from which an image may by any means be produced..." The proviso "may ... be produced" no doubt reflects the fact that, with conventional film, the image is latent at the time it is recorded, only being revealed by subsequent development, but it nicely covers digital photography too.

It therefore arguable that it is the original negative that attracts copyright, and that prints derived from negatives are protected via the copyright that exists in the negative from which a print was produced, as opposed to a distinct copyright existing in the print per se. I am no Cartier-Bresson, but do know from experience as an amateur photographer who used to do his own processing and printing, that the visual appearance of the final positive print is very much affected by the materials used, as well as the skill and expertise of the printer. Before photography went digital, the photographer had at his disposal a large range of printing papers and finishes that would produce different effects in the final print. The developer used could also affect the tone and gradation of the print.

In a simple case, composition can be improved by cropping, and of course it is possible to produce two completely different prints from different, non-overlapping parts of the same negative. Then there are other techniques such as posterisation and solarisation that used to take considerable effort in the darkroom, but which can now be done much more effectively in the computer and which are far removed from straight prints. I guess these would be capable of attracting independent copyright protection as artistic works per se. Certainly I used to resort to selective shading of parts of the negative when printing to bring out cloud detail that would otherwise have come out as white, and shadow detail that would have come out as black. Arguably a separate copyright ought to exist for prints of this sort, where the result was not simply the outcome of a simple exposing and developing procedure, but involved creativity by the printer.

As long as the photographer retained the copyright in the original medium, my understanding is that he ought to be able to specify how the image should be reproduced when granting a licence to make reproductions of his copyrighted work. However, I suppose the commercial reality is that standard terms and conditions are generally used. If terms of use are specified in a licence or contract, moral rights ought only need to be relied on after copyright has expired.




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