From The 1709 Blog:
The French civil Supreme Court held on October 10, 2018 that the right to first publish a work belongs only to the author or his heirs, and that, therefore, a painting given in 1970 to famous musician Eric Clapton, and subsequently used on the cover of one of his most famous albums had not been published by the author.
During the Summer of 1970, Eric Clapton and his then music group ‘Derek and the Dominos’ stayed in Valbonne, in the South of France, at the home of Emile de La Tour Saint Ygest, who was living alone at the time in the house of his illegitimate father, French-Danish painter Émile Théodore Frandsen.
During this stay. Emile de La Tour Saint Ygest gave La Jeune Fille au Bouquet to Eric Clapton, who used it on the cover of his Layla and Other Assorted Love Songs album, published by Polydor.
The painting was thus featured for more than 40 years without any issues. In November 2009 Polydor published a collector’s box featuring the original cover of Layla to celebrate the 40th anniversary of the album.
The box featured a ‘Pop-up 3D Artwork,’ a 3-D representation of La Jeune Fille au Bouquet as a folding cardboard. The box also featured an ‘art guitar scratch-plate sticker,’ a sticker reproducing the painting which could be put on a guitar, and also the reproduction of the cover on cardboard in the shape and format of a LP.
Monique Frandsen de Schomberg, a legitimate daughter of the painter, filed a copyright infringement suit in 2013 in Paris, claiming that the use of the painting on the cover of the album and on the box infringed her father’s patrimonial and moral rights.
. . . .
Article L 121-1 of the French Intellectual Property Code provides a perpetual and inalienable moral right to the author of the work:
“An author shall enjoy the right to respect for his name, his authorship and his work. This right shall attach to his person. It shall be perpetual, inalienable and imprescriptible. It may be transmitted mortis causa to the heirs of the author. Exercise may be conferred on another person under the provisions of a will.”
. . . .
The Court of appeals had not found that the use of the painting on the original album cover was a violation of moral rights, because the painting had not been truncated or otherwise altered, and the signature of the painter was clearly featured.
The Cour de cassation confirmed this reasoning, as the work had been used to illustrate the cover of the album, but not as advertising.
The Court of appeals had found however that the use of the painting on the cover in the collector’s box violated the moral right of the author as it distorted the work (dénaturer l’oeuvre.)
. . . .
The Paris Court of Appeals had also ruled that, because the right to first publish the work is exhausted when first exercised, and it had been, in this case, when given to Eric Clapton in 1970.
The Cour de cassation disagreed on this point, and sent the case back to the Versailles court of appeals on remand.
France’s highest Court cited article L11-3 of the French Intellectual Property Code, stating that owning a protected work does not grant the intellectual property rights assigned to its author, and article L121-2 of the same Code, which gives to the author the exclusive right to publish her work.
Link to the rest at The 1709 Blog
Wasn’t enough money in the fight before.
I agree with all three of you on the rules/laws. The problem lies elsewhere.
“The painting was thus featured for more than 40 years without any issues.”
Why wasn’t it an issue for over forty years?
“The Versailles Court of appeals will now have to decide whether this right has indeed been exercised by the author or his heirs.”
Was permission given and now can’t be proved?
“It is likely to spur a legal fight over whether plaintiff truly has the right to defend Frandsen‘s moral rights.”
I’m guessing we can’t ask the painter at this point, but I’m gonna need to go get some more tartar sauce because this whole thing smells fishy …
MYMV and your ducks stay in order.
Why wasn’t it an issue for over forty years?
It’s obvious. Knuckle-draggers who lack literary nuance can’t see what’s self-evident.
What appears to be ‘self-evident’ is that someone’s hoping the payout (if any) from this grandstanding is going to be bigger than their lawyers’ fees.
MTMV (may their mileage vary)
To be honest I would have thought this was self evident. My husband is an artist. When he sells an original painting he retains copyright in the image so he can – and often does – carry on making cards and prints from it unless somebody wants to buy out those rights. Selling or giving a picture away gives no rights to reproduce that work. That’s here in the UK. Not sure what the situation is elsewhere.
“Selling or giving a picture away gives no rights to reproduce that work.”
My only question with that is if no rights of reproduction were given, then why didn’t they go after Polydor and Clapton in 1970 when they used it as a cover?
Either they were granted rights back then, or the painter didn’t mind; either of which makes me wonder about it now being an issue for the daughter. (unless of course this has nothing to do with rights and everything to do with money …)
MYMV and you not get caught by changing laws.
My only question with that is if no rights of reproduction were given, then why didn’t they go after Polydor and Clapton in 1970 when they used it as a cover?
Maybe it wasn’t self-evident?
“Maybe it wasn’t self-evident?”
You’re right, no one would notice a twelve by twelve record cover, Clapton and the artist are both so little known that in those forty years no one would have pointed it out or otherwise told the artist or his estate.
We’re only seeing a snapshot of what’s going on here – there’s got to be more of the story somewhere. Heh, I wonder if Clapton sent the artist or the son an album in thanks (in which case she doesn’t have a case because the estate didn’t have a problem with it at that time.)
And it seems the first battle will be whether the daughter has the right to file the suit in the first place – was she not named in the will controlling the estate – or was there no will?
MYMV and may you not spin in your grave over what your kids try to pull after you’re gone.
Me, too.
Exactly.
AFAIK that is the law in the United States, too.
The most famous case involved J D Salinger. IIRC Joyce Maynard — an ex-lover — sought a publisher for a collection of letters Salinger had written her during their relationship. Salinger found out about the project and sued to suppress the publication and won. In short, Ms Maynard indeed owned the letters, but Salinger held the copyright of the contents. Instead, Ms Maynard auctioned the letters at Sotheby’s. I believe the winner of the auction returned the letters to Salinger.
So if you buy a painting, you own the article and but the artist owns the right of reproduction. At least in American law. If nothing has changed lately.
Somebody smelled money.
I did like that the OP felt the need to spell out the ‘legitimate daughter’ and ‘illegitimate father’ bits but didn’t say if she was heir to her father’s estate/”patrimonial and moral rights”.
Is Polydor or Clapton in France and thus subject to their rules/laws?
MYMV and your contracts protect you from estates trying to milk your estate years after the fact.