Fresco removal might amount to moral rights infringement

The presence of works of art in the street or inside public buildings is nothing new. It's part of everyday visual life [IPKat here, here and here]. Exposing the tangible support of a work to the vagaries of the climate or destroying it outright, might however raise copyright issues, in particular regarding moral rights. A recent decision issued by the Douai Court of Appeal illustrates this issue.

"Innocent Printemps" fresco

Facts

George and Albertine Delevallez, an artist couple, are the authors of a ceramic fresco entitled "Innocent Printemps", commissioned in 1970. It adorned the staircase in the entrance hall of a building belonging to the former Faculty of Medicine and Pharmacy in Lille. 

In 2015, the local authority put the building housing the fresco up for sale. The buyer, the company Finapar, learned that the fresco contained asbestos. The fresco was thus removed from the wall on which it was fixed. In particular the ceramic tiles of the fresco were peeled off. 

The heirs of the fresco's authors became aware of works in the building and the resulting destruction of the fresco. After unsuccessfully trying to reach an amicable settlement, they sued Finapar for copyright infringement before the tribunal judiciaire of Lille. 

In a judgment dated 18 March 2002, the court ruled that Finapar had infringed the copyright of the plaintiffs. Finapar thus appealed.

A fresco representing a Kat

Analysis

Originality

As usual, to reach a decision, the Court of Appeal divided its reasoning into various steps. First, the Court examined the protectability of the fresco by copyright. Relying explicitly on a combined reading of articles L. 111-1, L. 112-1 and L. 113-1 of the CPI, the Court of Appeal recalled that “it is deduced from these provisions that a work can be protected without formality and solely on the basis of the creation of an original form”. The Court also reiterated the now well-established principle that "it is up to the person claiming copyright protection to identify what characterises this originality. The work must be original, i.e. it must be identifiable with sufficient precision and objectivity, and it must reflect the personality of its author through the manifestation of his free and creative choices". Such reminders come as no surprise as they are common grounds of most French copyright cases [IPKat on this point here, here and here]. 

Thus, rejecting the argument of the defendant, the Court of Appeal upheld the copyright protection of the fresco. Indeed, elements such as “the authors' desire to create a scenography inspired by the world of minerals and polar expeditions, which is reflected in the presence of various more or less realistic marine animals, represented in a childlike manner, the specific colouring, such as the terracotta used to represent the wave, or the use of materials such as gouache and cold enamel on paper”, reflect the originality of this work.

Moral rights infringement

The Court recalled that, under article L. 121-1 of the CPI, “the author enjoys the right to respect for his name, his status and his work. This right is attached to his person. It is perpetual, inalienable and imprescriptible”. However, because of the particular nature of the work, the Court stated that "a fresco is a work incorporated into its support and its author cannot ignore this particularity, unless there is proof of a technique of dissociation, it follows that the destruction of the support irrevocably entails the destruction of the work itself. The balance between the prerogatives of the author and those of the owner requires that these modifications do not exceed what is strictly necessary and are not disproportionate to the aim pursued.”

These few lines from the Court of Appeal are at the heart of this case. Even if the protection of moral rights is high (e.g. in France), it is not absolute. The fact that a work is placed in a public space or in a building necessarily implies that its material support will deteriorate over time or at least necessitate some intervention. The issue then is to determine whether or not the modifications and/or repairs made by the owner of the support infringe the moral rights of its author. Preventing authors from abusing their rights is another objective.

Such an assessment is factual. The alleged infringer bears the burden of proving that its modifications are both strictly necessary and are not disproportionate to the aim pursued. These two conditions must be met to avoid any infringement of moral rights.

In the end, the Court of Appeal held that Finapar had infringed the moral rights of the heirs for failing to demonstrate that “the removal was strictly necessary, since possibilities of containment and removal had been demonstrated, and total removal was therefore disproportionate”.

Thoughts

This judgment underlies the need to assess the protection of the author's rights vis-à-vis those of the owner of the medium of the work. As far as the owner of the medium is concerned, every effort should be made to obtain the prior consent of the author before any alteration work is conducted. The aim is to avoid similar litigations. The author should focus their arguments on the nature and outcome of the renovation work (e.g. distortion, disregard for the materials of the work, destruction).