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In breach of EU copyright law, Paris Court refuses to protect Mankowitz’s photo of Jimi Hendrix

poznati,bwjimihendrix,blackwhite,jimihendrix,geredmankowitz,hendrix-3d940e6f3d92f277d66e8d68a9b5d962_hThis ruling, rendered by the IP specialist section of the High Court of First Instance of Paris, breaches the most basic EU and French copyright law, by refusing copyright protection to an obviously original photographic work. This very surprising ruling is unfortunately just another ruling contrary to the elementary rules of copyright law that has been given by the High Court of Paris.

On 21 May 2015, the High Court of First Instance of Paris (Tribunal de Grande Instance) rendered a judgment in which it ruled that a famous photograph of Jimi Hendrix, taken by Gered Mankowitz, is not original and therefore not protected by copyright. The photograph is reproduced hereabove. The 3rd Chamber o [...]

France: Apple Distribution International, Conseil d’Etat, 358734, 19 November 2014

In this judgment, the French Supreme administrative Court, the Conseil d’Etat, confirms the validity of a decision taken on 9 February 2012 by the Commission in charge of setting the compensation for private copying. This decision adopted the new tariffs applicable for recording media subject to the remuneration for private copying, including portable media players, external hard drives, smartphones and tablet computers.

A full summary of this case has been published on Kluwer IP Law.

ECJ: Auction houses may transfer cost of artist’s resale royalties to the buyer

Brad-SpitzAn auction house may transfer the responsibility of paying the artist’s ‘droit de suite’ from the seller to the buyer.

This judgment, rendered by the European Court of Justice on 26 February 2015 in response to a reference from the French Supreme Court, will satisfy the auction houses and art dealers in Europe (Christie’s France SNC v Syndicat national des antiquaires, Case C-41/14). The ECJ has held that under Article 1(4) of Directive 2001/84/EC on the resale right for the benefit of the author of an original work of art, the seller or an art market professional involved in a transaction may agree with any other person, including the buyer, that the said other person will bear the [...]

France: TF1, Court of Cassation of France, First Civil Law Chamber, 13-22401, 13 November 2014

In this judgment, the French Supreme Court ruled that an author who is a member of a collecting society may not take action in infringement cases to protect his economic rights, except in the case of a deficiency on the part of said collecting society.

In the same judgment, the Supreme Court ruled that publishing agreements for the assignment of rights of an author must be in writing, and it is not possible to demonstrate the existence of an agreement by reference to the behaviour of the authors as regards the exploitation of the work.

A full summary of this case has been published on Kluwer IP Law

France: Do members of collecting societies retain the right to sue?

Brad-SpitzArticle L.321-1 paragraph 2 of the French Intellectual Property Code (‘IPC’) provides that collecting societies are entitled to take legal action to defend the rights for which they are responsible under their articles of association (by-laws). Collecting societies may therefore take legal action to defend their repertoires and those of foreign collecting societies that they manage, whether before the civil courts (Supreme Court, 22 March 1988, 86-11874) or the criminal courts (Supreme Court, 25 October 1988, 86-91720). In its judgment of 13 November 2014 (13-22401), the French Supreme Court answered a very important question: do authors who are members of collecting societies retain the [...]

Publication: Guide to Copyright in France

BSBookI am happy to announce the release of my book Guide to Copyright in France – Business, Internet and Litigation.

French copyright law is one of the most original and dynamic copyright systems at this time. This book is a practical and straightforward guide to how copyright works in France: protection, ownership, assignment agreements, collective management, and litigation. This guide is divided into six chapters (see table of contents):

Chapter 1 ‘Subsistence of Copyright and Neighbouring Rights’ explains the conditions of protection of works such as photographs, audiovisual works, architecture, conceptual art, computer programmes, videogames, databases, etc. and the conditions of protect [...]

France: new legislation on damages for copyright infringement

Brad-SpitzTwo Acts of 2007 and 2014 to fight against counterfeiting have modified the French Intellectual Property Code, in order to enable improved compensation for the rightholders as well as better protection of intellectual property rights.

In French intellectual property infringement cases, damages were traditionally supposed to cover the prejudice suffered, no more, no less. Punitive damages were not theoretically possible. However, Acts No. 2007-1544 of 29 October 2007 and No. 2014-315 of 11 March 2014 to strengthen the fight against counterfeiting have modified many aspects of the French Intellectual Property (‘IPC’) with regard to damages and remedies.

Calculation of the damages

Article [...]

Thumbnails: French proposal for payment of royalties by search engines

Brad-SpitzIn France, search engines using thumbnails are likely to infringe on copyright. On 8 April 2014, a French Senator proposed a Bill to establish compulsory collective management for the reproduction of photographs and images by search engine services.

Thumbnails are reduced-size versions of photographs and images, used by search engines such as Google Images in order to facilitate their recognition and organisation, with links to the websites where the photographs and images are published.

Such reproduction of photographs and other works is likely to constitute fair use under the US Copyright Act of 1976 (see Meng Ding, Perfect 10 v A Step Toward Copyright’s Tort Law Roots, Berk [...]

Artist’s Resale Rights: French preliminary question to the ECJ

Brad-SpitzCan an auction house transfer the responsibility of paying the resale right royalty from the seller to the buyer?

Directive 2001/84/EC created a resale right (‘droit de suite’) in the EU for the benefit of the author of an original work of art. This resale right is ‘defined as an inalienable right, which cannot be waived, even in advance, to receive a royalty based on the sale price obtained for any resale of the work, subsequent to the first transfer of the work by the author’ (Article 1). The directive was adopted in 2001 but only came into force on 1 January 2010.

Article 1(4) of Directive 2001/84/EC states that ‘The royalty shall be payable by the seller’, and that Member St [...]

France: no copyright protection for perfume

Brad-SpitzThe Supreme Court maintains its position in a case concerning a Lancôme perfume, stating that ‘copyright only protects creations in their tangible form, so far as this form is identifiable with sufficient precision to permit its communication; whereas the fragrance of a perfume … is not a form that has this characteristic, and therefore cannot be protected by copyright’.

Article L.112-1 of the French Intellectual Property Code (IPC) protects ‘the rights of authors in all works of the mind, whatever their kind, form of expression, merit or purpose’, without giving a definition of originality.

French case law has defined originality as the expression of the personality of the autho [...]

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