COPYRIGHT – Protecting a work of street-art

CA Paris, July 5, 2023, 21/11317. The Paris Court of Appeal has handed down a ruling in which it condemned Mr. Jean-Luc MELENCHON and his political party, La France insoumise (“LFI”), for infringement of the economic and moral rights of street artist COMBO.

As part of the campaign for the 2017 presidential election and the 2020 municipal elections, videos produced for the campaigns of Mr. MELENCHON and LFI and distributed on several media (in particular on social networks), reproduced without the prior authorization of the artist COMBO, nor mention of his name, his work “La Marianne Asiatique” (Asian Marianne):

COMBO sued Mr. MELENCHON and LFI before the Paris Judicial Court, which dismissed its claims on the grounds of copyright infringement.

COMBO lodged an appeal with the Paris Court of Appeal, which upheld all of his claims.

Regarding the admissibility of the claims against Mr. MELENCHON, the Court ruled that Mr. MELENCHON was indeed responsible for the publications made on his official accounts, regardless of whether they were administered by a third party, provided that it is not demonstrated that the latter acted independently and outside his mission.

The Court then assessed the copyright exceptions invoked by Mr. MELENCHON and LFI to rule out infringement of the artist’s economic rights.

As for the exception of panorama, it was rejected by the Court, as this exception is provided for by Article L.122-5-11° of the French Intellectual Property Code only for “architectural works and sculptures permanently located in public places “. The Court notably held that “in the case of a work of ‘street art’, which, as in the present case, is partly made up of pasted paper, and is therefore particularly subject to external hazards (deliberate damage, erasure by the owner of the support, alterations due to  weather conditions, etc.), it cannot be said that it is ‘permanently placed on the public road“.

In addition, an examination of the videos revealed that the work did not appear in an incidental or fortuitous way, as an element of the landscape or public space serving as a backdrop to the subject or the event dealt with, “but that it was deliberately integrated, in an aesthetic research which reveals the intention of the video’s author to make it an important element of the clip and to exploit the work by associating it with the political message being broadcast“.

The court also rejected the short quotation exception provided for in Article L.122-5-3° of the French Intellectual Property Code, noting that the name of the artist or the source of the work were not mentioned at any point in the disputed broadcasts, as required by law.

Furthermore, the use of the work in the disputed videos concerns only the face of the “Marianne Asiatique” (Asian Marianne), excluding any representation of the flag bearing the motto “LIBERTE-EGALITE-HUMANITE” (LIBERTY-EQUALITY-HUMANITY) and the message “NOUS VOULONS LA JUSTICE” (WE WANT JUSTICE). According to the Court, “it cannot be considered that this use, purely visual or aesthetic, without ideological content, would be justified by the critical, polemical, educational or informative nature of the videos concerned, consisting rather in a borrowing, without obvious necessity, for the purposes of illustrating the political discourse of LFI or Jean-Luc MELENCHON“.

As a result, the Court of Appeal found that Mr. MELENCHON and LFI had indeed infringed the Combo’s economic rights. It also found several infringements of the artist’s moral rights:

• Infringement of the authorship: the Court held that the fact that the name of the author “COMBO” had already been deleted and replaced by that of the artist STYX was insufficient to justify the absence of any reference to the artist COMBO at the time of the broadcast of incriminated videos. According to the Court, Mr. MELENCHON and LFI “should have sought the author of the work in order to obtain his authorization. However, it has not been demonstrated or claimed that the slightest research was carried out“.

• Infringement of the physical integrity of the work: The Court found that the unauthorized addition of the LFI sign and its unauthorized partial integration into an audiovisual medium with a sound message and subtitling “characterize an illegitimate appropriation” by LFI and Mr. MELENCHON. The Court also found that the integrity of the work had been infringed by “the addition of branches and a bird’s flight as a watermark, this addition not having been made directly on the work created by COMBO in the public space, as is sometimes the case with ‘street art’ works that undergo  modifications in situ  necessarily consented to by the author, given the inherently evolving nature of such works“.

• Infringement of the spiritual integrity of the work: the Court considered that “even if the use (…) is devoid of any excess or controversy and is in line with republican and citizen values also claimed by COMBO (…), [the work] was used, without his consent, in support of the action and interests of a political party and personality, which was likely to lead to the belief that the author was lending his support or assistance“.

The Court therefore ordered Mr MELENCHON and LFI to pay COMBO the sums of:

• €5,000 in compensation for his economic loss;
• € 15,000 in compensation for his moral loss;
• € 15,000 under Article 700 of the French Code of Civil Procedure.