AT approaching Valentine’s Day, the following case reminds us that if, in a couple, love disappears one day, the ex-spouses cannot, nevertheless, cause mutual harm to each other: Mme X, in divorce proceedings, had no right to destroy a mural, which her husband had painted in their dining room, eleven years earlier, and which represented their family.
It was shortly after the divorce judgment that Pascal X discovered, by chance, the disappearance of his fresco. His wife, who, since the non-conciliation order, had sole enjoyment of the marital home, had it covered with layers of paint.
She explains to him, a posteriori, that she wanted to sell their home quickly, and that the real estate agent thought ” share “ on the presence of this decoration. She adds that she was embarrassed by the image which represented her, undressed (and for which she had however formerly posed).
Mr. X considers that she has infringed his moral copyright, and is claiming 20,000 euros from him. As she refuses to give them to him, he takes her to court. He invokes in particular thearticle L111-1 of the intellectual property code, according to which “the author of a work of the mind enjoys over this work, by the mere fact of its creation,… a right of ownership…”.
Faces replaced
Mme X replies when his fresco was not a “work of the mind” eligible for copyright protection because it did not meet the necessary criterion of“originality” : a work is « original »according to the case law of the Court of Cassation, if it “reflects the personality of its author” (89-11.204) or that she is marked with sound “footprint” (71-14.469).
However, Mr. X had only done ” to copy “ three Art Nouveau objects: two posters by Alfons Mucha (1860-1939), for Moët & Chandon champagne and Lefèvre-Utile biscuits, on the sides; a wall painting by Jan Preisler (1872-1918), representing a couple, in the center. He had just replaced the characters’ faces with those of his family (his wife, himself and their daughters). For meme X, this simple substitution cannot constitute a “creative contribution”, likely to do “bring out the personality” of its author.
The Bordeaux Court of Appeal, which rules on November 7, 2022is less severe: it judges that this representation of family X “can only be considered original”. It is indeed, according to her, a “personalized representation”Who “belongs only to its author”, which has moreover “modified decorative elements and even the orientation of the painting on the right in order to obtain a coherent whole”.
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