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Privilege and Property

 | 
Ronan Deazley
, 
Martin Kretschmer
, 
Lionel Bently

9. Nineteenth Century Controversies Relating to the Protection of Artistic Property in France

Frédéric Rideau

Texte intégral

  • 1 The author would like to sincerely thank Lionel Bently for his help in the preparation of this pap (...)

1Note portant sur l’auteur1

Introduction

  • 2 For an account of the arguments exchanged see for example ’Gaultier’s Memorandum for the Provincia (...)
  • 3 On this see: ’Louis d’Héricourt’s Memorandum (1725-1726)’, Primary Sources; ’French Decree of 30 A (...)
  • 4 ’Royal Declaration on Sculpture and Painting (1777)’, Primary Sources. Translation by Katie Scott. (...)
  • 5 ’French Literary and Artistic Property Act (1793)’, Primary Sources.

2During the second-half of the eighteenth century, the Parisian booksellers, like their counterparts in London who were waging a ’battle’ against the Scottish book trade, sought to defend their monopolies on books against their provincial rivals by justifying them on Lockean property grounds.2 In France, most of the fundamental concepts of the author’s right had in fact been discussed with regard to literary productions, and a perpetual property right was ultimately secured to the author by the Royal Decrees of 30 August 1777. To a certain extent, the king himself recognised, following Louis d’Héricourt, that privileges could bear a different nature when granted to secure the author’s peculiar labour.3 Although the question of artistic property had hardly been addressed in these disputes, Louis XVI also chose the same year to clarify the position of artists: in a declaration of 15 May 1777, the king recognised the freedom of artists to create as well as their exclusive rights in those creations, emphasising that the arts of painting and sculpture ’should be perfectly analogous to Literature, the Sciences & other liberal arts, especially architecture; in such a manner that those wishing the above said arts of this kind should not, under any pretext, be troubled or bothered by any corporation or guild’.4 In addition, all counterfeiting, be it by engraving or by casting, without the author’s consent, was to be punished according to Article 8 of the Declaration. Now clearly linked, before 1789, with literary property, the next step towards the recognition of artistic property was for it to be consecrated and secured by a single statute, a legislative development which occurred in the wake of the first years of the Revolution, following the abolition of privileges in August 1789. The revolutionary legal recognition of the author’s property would first take place with the legislation of 13-19 January 1791 concerning dramatic performances, before the subsequent legislation of 19-24 July 1793 recognised the author’s right of property in his literary and artistic works, thus supposedly bringing to an end the long debates of the eighteenth century concerning booksellers’ privileges and their monopolies. As in 1777, trying, without much parliamentary discussion, to reconcile a natural property right with the public interest, the Act of 1793 indeed declared the author’s ownership of his work to be the form of property which was least open to contestation – although, paradoxically, this property was drastically limited in duration (to the author’s life and for a further ten years after the author’s death).5

  • 6 One might contrast the very different approach to legislation in the United Kingdom where particul (...)
  • 7 The complete works of this commission is available online: ’Minutes of the 1825-1826 Commission (1 (...)
  • 8 See in particular Philippe-Antoine Merlin, ’Contrefaçon’, in Répertoire universel et raisonné de j (...)
  • 9 A.C. Renouard, Traité des droits d’auteurs, dans la littérature, les sciences et les Beaux-Arts, v (...)
  • 10 E. Blanc, Traité de la Contrefaçon, 4th ed. (Paris, 1855).
  • 11 Especially the last edition of his treatise in the nineteenth century: E. Pouillet, Traité théoriq (...)
  • 12 C. Couhin, La propriété industrielle, artistique et littéraire, vol. 2 (Paris, 1898).

3As it happened, although it was to be the main copyright legislation for decades, the statute contained a mere seven articles, and many matters, concerning the object of the newly secured property, were left unclear.6 Some attempt was made to add clarification to the Act through the establishment of a commission mainly devoted to the question of literary property, set up in the final months of 1825 under the presidency of the Viscount Sosthène de La Rochefoucauld and made up of several eminent jurists and statesmen, which was assigned the task of preparing a draft for new legislation.7 However, the commission became side-tracked by the question of the duration of copyright, a matter which thereafter dominated parliamentary reform initiatives (for example, in 1841), until the term was extended to fifty years post mortem auctoris in 1866. In the absence of more general reform, therefore, in the field of artistic property, as in literary property, the interpretations given to the Act by the courts and commentators proved critical throughout the nineteenth century. The judges, obviously, but also key figures and commentators including chief prosecutor Philippe-Antoine Merlin,8 Augustin-Charles Renouard,9 Etienne Blanc,10 Eugène Pouillet11 and Claude Couhin12, were called upon to engage with the complex task of defining what constitutes an ’artistic work’, its general definition and its threshold of protection, as well as determining the relationship between the artist and the owner of a painting, sculpture or engraving, and the scope of protection.

Definition of an Artistic Work

  • 13 ’French Literary and Artistic Property Act (1793)’, Primary Sources.

4Article 1 of the 1793 Act acknowledged that it was necessary to protect the ’Authors of writings of any kind, composers of music, painters and draughtsmen who shall cause paintings and drawings to be engraved’. The courts, throughout the nineteenth century, would have to decide what did and what did not encompass writings ’of any kind’, a general expression that seemed firstly to contrast, within the same article, with the subsequent restricted list relating to the field of artistic creations. In fact, some very limited assistance in this task had been provided by the legislature which laconically, in Article 7, conferred concurrently a ten year period of protection on the heirs of authors of ’works of literature or of engravings, or of any other production of the mind or of genius within the domain of the fine arts’.13

  • 14 On this point, see F. Rideau, ’Commentary on the Court of Cassation on Sculptures (1814)’, Primary (...)
  • 15 Robin v. Romagnesi, Cour de Cassation, 17 November 1814, Sirey 1812-1814.1.630-1; see ’Court of Ca (...)
  • 16 Merlin, p. 286.
  • 17 Ibid.
  • 18 Ibid., p. 287. Merlin also relied on Article 425 of the Code Pénal of 1810, which also mentioned ’ (...)

5The first judicial general clarifications were given at the beginning of the nineteenth century. Sculpture, for example, was surprisingly not explicitly mentioned in Article 1 (or Article 7).14 In 1814, in the landmark Romagnesi case, the Supreme Court (Cour de Cassation) had to determine whether the conviction of the Demoiselle Gabrielle Robin of counterfeiting Romagnesi’s bust of King Louis XVIII was lawful.15 It was argued that Romagnesi had failed to deposit copies of the bust in accordance with Article 6 of the 1793 Act, which had some consequences on the implementation of the property right, and, more significantly, it was argued that sculptures were not protected by that legislation. The judges followed Merlin’s conclusions, which relied on Article 3 of the statute, to rule against Robin.16 Article 3 required Officers of the Peace to confiscate ’for the benefit of the authors, composers, painters, draughtsmen and others concerned […] all copies of publications which ha[d] been printed or engraved without the formal written permission of their authors’. The reference to ’authors, composers of music, painters, draughtsmen and others’ could be interpreted as implicitly including sculptors: these ’others’ could only have been added, as the famous chief prosecutor Merlin put it, to benefit ’all the artists in general’.17 Along with the general dispositions of the Code pénal, the Court was also reinforced in this interpretation by Article 7, relating to ’any other production of the mind or of genius’, which – according to Merlin – could only complete and corroborate Article 3.18 Affirming Robin’s conviction for counterfeiting, the Court held moreover that the deposit of such sculptures had never been regarded as necessary under Article 6 to implement the property right they conveyed: the Act only obliged the authors of printed and engraved works to deposit copies of these works at the Royal Library.

  • 19 Betbéder and Schwalbé v. Mayer and Pierson, Cour de Cassation, 28 November 1862, Dalloz 1863.1.52; (...)

6Such general terms had therefore to allow other forms of production of the mind or of genius to be protected under the 1793 Act. In particular, the revolutionary legislation, obviously, had not foreseen the question of photographic productions. The Cour de Cassation, in November 1862, finally ruled against an absolute exclusion of photography under the 1793 Act.19

Threshold of Protection

7A second, and more difficult question, concerned more specifically the threshold criterion to be satisfied before a work might be regarded as protected. In the field of artistic works, the problem arose in particular in relation to sculptures that reproduced existing works (what we would now refer to as works in the public domain) or natural artefacts, and especially those that involved mechanical processes, such as miniaturisation.

  • 20 Leclerc v. Villeprend and Brunet, Cour de Cassation, 2 December 1814, Sirey 1812-1814.1.637; see ’ (...)
  • 21 In fact, a creation that had to be ’proper’to its author could reveal at the same time an objectiv (...)

8In the context of literary works, the Cour de Cassation had rendered an important ruling on 2 December 1814, to the effect that compilations, as a matter of principle, were not excluded from protection under the 1793 regulations. However, the judges indicated that the threshold of protection could not be reduced to a bare quantitative ’savoir faire’, a form dictated by necessity (for example, in literary compilations, the arrangement of extracts in chronological order or dictated by the nature of the texts), the mere activity of ’research’, and so on. Indeed, the supreme judges asserted the legitimacy of applying the protection of the 1793 Act to collections, compilations and other works of this kind, but only where these works had ’in their execution’ required ’discerning taste, learned selection, mental labour’ and ’intelligence’. In short, the work had to reveal in its form ’conceptions’that were ’proper’to its author (conceptions qui lui ont été propres).20 Decided again under the influence of Merlin, and because of the general, albeit ambiguous, formulation of the 1793 statute, this minimal requirement was supposed to apply and to provide a guideline to all ’productions of the mind or of genius’, that is to artistic productions and in particular to sculptures.21

  • 22 Correctional Tribunal of the Seine, 10 December 1834, quoted from Pouillet, p. 102. See also Blanc (...)
  • 23 Blanc, p. 296f.

9In the light of this holding, a sculpture created by purely manual and technical reproduction such as casting could readily be excluded from the protection of the 1793 statute, and this line was soon taken by some courts. For example, in 1834, the Tribunal Correctionnel of the Seine held that the death-mask of Napoleon, made by his doctor Antomarchi, was not protected under the Act: the process of capturing, by means of taking a cast (from a person’s face) could not establish an exclusive right. The judges indicated that if one were to compare the product of a purely manual operation to the work that a sculptor has produced that would have amounted to extending the provisions of the law beyond what was a work of the mind or of genius.22 Therefore, there was no infringement in taking further casts from the master mould without the consent of its original author or manufacturer. Thus, the mechanical process seems to have been perceived by the judges as incompatible with a more subjective approach to creation. The decision, however, was regarded by certain jurists as peremptory, and one that was maybe influenced by external pressures or lobbying – in particular by the Fine Arts Section of the Institut Royal de France. Indeed, Blanc, in his Traité de la Contrefaçon, recalled that for the Institute members, the ’mind or genius do not, as a matter of fact, play any role whatsoever in this purely manual operation, which is not at all difficult, since all it takes is a little bit of practice in order for one to be able to carry it out to the desired degree of perfection’.23

  • 24 Court of Paris, 22 January 1829, and Court of Bordeaux, 26 May 1838, Sirey 1838.2.485-6 (cases quo (...)
  • 25 The same debates would occur in relation to photography. Photographic productions gave rise to con (...)
  • 26 Pouillet, pp. 104-5. See also Couhin, p. 408 for whom these miniatures can imply, to a certain deg (...)

10Miniatures (réductions) of statues also gave rise to similar questions, but not always with the same conclusions. For example, the courts had ruled in 1829 that the reduction of an antique figure with the model for a clock produced a property right: such reductions of statues could possibly display, as the judges explained in 1838, the ’talent’ and the ’personal labour’ of their author.24 Again, the question was, however, more problematic when the production of the miniatures was mainly carried out by a machine. For jurists and major commentators like Pouillet and Couhin, even though the ’author’ was just the operator of a machine, a categorical exclusion could not be justified.25 Pouillet, for example, recalled that amongst the guild of bronze manufacturers, ’it is unanimously recognised that no confusion is possible between the various miniatures made of the same original sculpture, even if these have been manufactured by means of a similar mechanical process. A miniature made by one craftsman can always be told apart from that made by another, and no mistake is possible here’. And besides, he added, the fact that an artist or a worker operates the machine does not change the principle: unless judges become art critics, by what criteria are they effectively to distinguish between the two operators?26

  • 27 Fontana v. Public Attorney, Cour de Cassation, 13 February 1857, Dalloz 1857.1.111; see ’Court of (...)
  • 28 Court of Bordeaux, 22 April 1861, in the decision Havas, Bullier & Co. v. Gounouilhou, which led t (...)
  • 29 Court of Paris, 10 April 1862, in the abovementioned case of Betbéder and Schwalbé v. Mayer and Pi (...)
  • 30 O. Laligant, La Véritable condition d’application du droit d’auteur: originalité ou création? (Aix (...)

11The question was further complicated by the fact that, whilst the law was in theory supposed to secure protection for works of any kind, the criteria for protection became more explicitly subjective from the second half of the nineteenth century onwards. In February 1857, in an important case concerning the counterfeit of a sculpture, the Cour de Cassation ruled that ’however well-known the features of a commonplace article (les traits d’un type commun) may be, and in spite of the fact that tradition requires any copy to respect those features, this indispensable fidelity still leaves space for the talent of the artist, allowing him to create a work that bears a special character, and which becomes as such a property protected by law’.27 In April 1861, the Court (of Appeal) of Bordeaux, in a case relating to the protection of telegraphic news, stressed the point that the work had to carry ’in some way the imprint of the personality’ of its creator.28 In relation to photographic productions, the same expression would also be used by the Court of Paris in April 1862.29 The word ’originality’ was not employed frequently at this stage, but the expression used by the judges conclusively indicated that the 1793 Act would not protect a mere product of intellectual labour. Indeed, it has been pointed out that the multiplication of occurrences of such ’subjective’ criteria, in particular the originality test, probably stemmed from a renewal of artistic awareness during this period, implying the belief that the purpose of a copyright statute was to protect works of an aesthetic or ornamental nature.30

  • 31 Renouard, p. 81: ’One can hear a lot of vociferous protesting about the protection due to genius i (...)
  • 32 Pouillet, p. 23.

12Nonetheless, at the end of the nineteenth century, the situation before the courts remained the same as the one that Renouard had bitterly described in 1839: in ’artistic as in literary matters’, there was still ’no correlation between the number and the seriousness of judicial debates, and the significance of the productions in question’, adding to that, the ’flimsiest [were] often those that give rise to the greatest number of trials’.31 More than fifty years later, Pouillet would still comment that ’the legislator, in carrying out an act of incontestable justice by protecting the most sacred of properties, has nevertheless inflicted upon the world of arts and letters an irreparable harm, for he has rendered that world fatally mercantile’.32

  • 33 Barbedienne v. Van Loqueren and Others Cour de Cassation, 16 May 1862, Dalloz 1863.1.111 and, with (...)

13Finally, the Cour de Cassation chose to leave to the judges of the inferior courts a great deal of room to manoeuvre in the assessment of what was proper to the author in the artistic work. With regard to mechanical miniatures or reductions, for example, the Supreme Court upheld, in May 1862, the interpretation of the lower judges as to whether miniatures of these types could constitute, or not, an artistic work in the sense of the statute of 1793. In other words, such assessments, left to the lower courts, were necessarily independent.33

Corporeal and Incorporeal in an Artistic Work

  • 34 For the position in the United Kingdom, at least with respect to paintings, see the essay in this (...)

14The general wording of the terms of the revolutionary statute also led to some questions as to the relationship between the incorporeal property it conferred in a work of art and the corporeal ownership of the paintings, sculptures and engravings themselves. In particular, the question arose as to whether the transfer of the physical medium of the work implied that the right to have the painting or drawing engraved was also to be automatically transferred. Again, the judges would have to try to resolve this question.34

  • 35 Heirs of Baron Gros and Vallot v. Gavard, Cour de Cassation, 27 May 1842, Dalloz 1842.1.297. For f (...)
  • 36 Dalloz 1842.1.304.
  • 37 Dupin also rejected the protection of the non-pecuniary interests of the original artist as a legi (...)
  • 38 In fact, this had been the solution proposed in March 1841 in the literary and artistic property b (...)

15The Cour de Cassation considered the issue in a joint session of all its chambers on 27 May 1842.35 In this case Antoine-Jean Gros had sold the painting the Bataille des Pyramides in 1809, and the question arose whether this transferred the right to reproduce it to the purchaser, or whether Gros could transfer the right to engrave the painting later to a M. Vallot. Following the conclusions presented by the chief prosecutor Dupin, and the viewpoint of the courts of first instance, the Court held that, in the absence of an explicit contractual reservation or clause formally stipulating the contrary on the part of the author, in accordance with the general regulations on property, the transfer of the original medium of the artistic work naturally implied the transfer of ’the full and absolute property of the sold object’, that is, all its ’accessories’ along ’with all the rights which are attached to it or depend on it’.36 Indeed, according to Dupin, the artist was sufficiently protected by Article 1 of the statute. Furthermore, as he argued, any other solution would have been against the artist’s own interests, since his glory could only increase as a result of the reproduction, by every means, of his work – reproductions which would in the end benefit the public interest.37 In a way, the work seemed to be principally reduced, in the artistic field, to its original and first embodiment or medium, consequently giving its owner, by virtue of the mere fact of possession, the right to freely use and dispose of it. The judicial line was thus set for the rest of the nineteenth century.38

  • 39 Veuve Gros and Vallot v. Gavard, Cour de Cassation, 23 July 1841, Dalloz 1841.1.322. For a precise (...)
  • 40 Couhin, pp. 410-1.
  • 41 Ibid., p. 413.
  • 42 And, of course, although not mentioned, derivative works of sculpture were also implied; ibid., p. (...)
  • 43 Ibid., p. 410.
  • 44 Pouillet, pp. 362-3.
  • 45 A. Vaunois, De la Propriété artistique en droit français (Paris, 1884), pp. 293-4.

16Yet the same judges had, a year earlier, maintained the exact opposite position to this – that is, that even without explicit contractual stipulation or reservation, the sale of a painting by its author did not imply the transfer of the right to reproduce it by ’a distinct art, that of engraving’.39 Moreover, some important jurists continued to disagree strongly with the Cour de Cassation’s decision. For Couhin, for example, the ’transfer of the property of the original could not entail – at least in theory – the transfer of the property of the right of reproduction of the work in question’, and this was particularly so ’in the transfer of the property of a painting’.40 Thus, in Couhin’s view, the 1842 ruling ’failed to appreciate, in a manifest way, the spirit and the text of the law’.41 Indeed, he deduced from the 1793 Act that the legislators were clearly seeking to enshrine the property ’not of the paintings or the drawings themselves, but of the engravings of those paintings or drawings’.42 There was, consequently, on the one hand, a property, a ’value’, vested in the physical medium or material object of the work of art (that is, in practical terms, the ’ordinary’ property of the painting itself) and, on the other hand, the right to have reproductions of it made. In fact, the latter was also a ’value’, a property, which was not secured by the general dispositions of the Code Civil, but rather by the ’special’ law of 1793.43 Likewise, according to Pouillet, he who ’buys an art object buys the material object, the right to possess the composition which has pleased him, whose execution has charmed him; this is, in short, a certain and specific item; nothing more’.44 The decision of 1842 was of great significance because of the parallel judicial expansion of what amounted to the infringement of the artist’s rights from the 1840s. As will be discussed below, the implication of the 1842 decision was not merely that the right to reproduce the work by the process of engraving was transferred to the purchaser of a painting, in accordance with the literal wording of Article 1 of the 1793 Act, but that the sale of the painting transferred the right to control reproduction by every process or technique which had developed subsequently. Such was the case with photography, for example. Because of this increasing diversity in the means of reproducing works of art, which additionally held out the potential for great profit, commentators such as Albert Vaunois were sceptical about it being possible to define the right of reproduction as a mere accessory of the original medium of the work.45 Yet, the principle of the distinction of the property right in the work, that is, in its own ’conception’ and its material incarnation, was only recognised conclusively in the law of 9 April 1910, which settled that ’the transfer of a work of art does not entail, unless otherwise convened, that of the right to reproduce it’.

Scope of Protection

  • 46 We should recall that engraving was the only means of reproduction explicitly mentioned (Article 1 (...)

17Difficulties concerning the scope of protection stemmed once again from the interpretation of Article 1, which specified that painters and designers were to enjoy the right to reproduce their works. What would these means of reproduction be? Were they to be restricted to the literal terms of the law, that is, just to the engraving of works of the fine arts?46

  • 47 As Couhin put it at p. 414, echoing Article 8 of the abovementioned Royal Decree of May 1777, ’the (...)
  • 48 These three decisions are summarized by Pouillet, pp. 555-6. The English court, at roughly the sam (...)

18On this question, the judges, at first, predictably remained quite hesitant to extend Article 1 far beyond its explicit letter. For example, the Court of Paris ruled, on 3 December 1831, that the property right to a painting did not extend to ’preventing the imitation or reproduction of the original work by the techniques of another, essentially distinct art, such as sculpture’ (in this case the painting had been produced in bronze). However, from the 1840s onwards, it seems that some judges became less reluctant to consider a broader definition of the work of art. Since considerable economic interests – though not only economic ones – were at stake for the artist, it seemed almost impossible to limit reproduction of the original work by the sole means of engraving.47 On 16 February 1843, for example, the Court of Paris upheld an injunction prohibiting the reproduction, ’be it in porcelain or in bronze’, of a painting without the author’s consent. Similarly, on 6 February 1862, the Tribunal of the Seine ruled that the reproduction of ’paintings or engravings by microscopic photography, against the right of artists’ was an instance of counterfeiting.48

  • 49 This was also the question debated for literary translation. On Renouard’s opinion on translations (...)
  • 50 Renouard, pp. 88-9.
  • 51 Pouillet, p. 551.

19The attitude of the major commentators followed roughly the same trajectory. For Renouard, at the end of the 1830s, the dematerialisation of the object of artistic and literary property, beyond the traditional distinction between idea and form, was found to be unacceptable.49 He viewed, for example, the idea of ’counterfeiting’ a painting by means of sculpture problematic, since ’these arts are essentially too different’.50 At the end of the nineteenth century, however, authors like Pouillet and Couhin agreed on a broader interpretation of Article 1. Pouillet, for example, was a strong proponent of the principle that as soon as the reproduction ’takes place without the authorisation of the proprietor, it constitutes a violation of his property’. He added that if ’it is a painting that is affected, it does not matter whether it is reproduced by painting, drawing, engraving, photography, or even by sculpture, and then, for example, it is translated into a bas-relief’.51

  • 52 Ibid., p. 552.

20’Translated’ was, as in the literary field, to a form which was not strictly identical, but that remained at the same time, in some sense, similar, and was therefore a reproduction of the original work: ’what belongs to the author is the whole of his conception, that is, the special form which he has given to an action or an idea’.52

Conclusion

21The controversies concerning the identification of the object of artistic property, resulting from the laconic text of the 1793 Act, revealed difficulties (and eventually conflicts amongst various interests) that were also being confronted in relation to literary property. For instance, the difficulties in determining precisely the scope of protection – in particular, that of identifying the intangible object of protection – also arose in relation to the question as to whether a ’translation’ of a literary work was an infringement of the rights conferred by the Revolutionary legislation. As with the question of whether the making of a sculpture from a painting infringed the rights of the artist, so the question of whether the author’s right extended to controlling translation required the courts and commentators to confront the distinction that had been embraced in the eighteenth century between idea and form.

  • 53 E. Soleau, Rapport à la Chambre de commerce de Paris, sur la protection des dessins et modèles app (...)
  • 54 See Pouillet, p. 89f.
  • 55 Cinquin v. Lecocq, Cour de Cassation. 25 June 1902, Dalloz 1903.1.5; see ’Court of Cassation on Mo (...)

22However difficult the relationship between ’idea’ and ’form’ and the scope of protection might have been, perhaps the most controversial issue remained the question of the common threshold of protection, despite the attempts at synthesis undertaken by notable jurists such as Blanc, Couhin, and Pouillet. In this regard it is significant that, at the turn of the twentieth century, Eugéne Soleau, former president of the Association of Bronze Manufacturers, sought to put an end to the persistent contradictory decisions emanating from the courts by persuading the legislature that the statute of 1793 should be explicitly declared to apply to all works of the fine arts, even those with an industrial function or destination.53 In many respects, throughout the nineteenth century, the judges seemed to be ineluctably caught between a rising or more explicit subjective definition of literary and artistic work and a legal indifference as to the kind of production which could qualify for protection. As Pouillet tried to explain, the law ’does not concern itself with the importance or the beauty of the work: all it takes into account is the fact of creation. It is for this reason that the law protects to the same extent a painting by Raphael and an image produced in the Épinal factories (colourful prints sold throughout France in the nineteenth century).’54 And, even though a precise definition was still lacking as to when a ’creation’ was ’proper to its author’, or bore ’the imprint of his or her personality’, this did not prevent further developments grounded on this theoretical subjective link between the author and his work. The judicial consecration of ’droit moral’, in particular, would also thus be elaborated, at the beginning of the twentieth century, within the framework of the old 1793 Act, as a right which would therefore have to be applied to all kind of literary and artistic works.55

Notes

1 The author would like to sincerely thank Lionel Bently for his help in the preparation of this paper, as well as Luis Sundkvist and Ronan Deazley.

2 For an account of the arguments exchanged see for example ’Gaultier’s Memorandum for the Provincial Booksellers (1776)’, Primary Sources. On the other hand, for a typical jus naturalis argument see for example ’Linguet’s Memorandum (1777)’, Primary Sources. The landmark British decision of Millar v. Taylor (1769), 4 Burr. 2303, should also be consulted in this context; see ’Millar v. Taylor (1769)’, Primary Sources.

3 On this see: ’Louis d’Héricourt’s Memorandum (1725-1726)’, Primary Sources; ’French Decree of 30 August 1777, on the Duration of Privileges (1777)’, Primary Sources.

4 ’Royal Declaration on Sculpture and Painting (1777)’, Primary Sources. Translation by Katie Scott. An up-to-date history of artistic property in France still remains to be written; Vaunois’ valuable study dates from the nineteenth century: A. Vaunois, La condition et les droits d’auteur des artistes jusqu’à la Révolution (Paris, 1892).

5 ’French Literary and Artistic Property Act (1793)’, Primary Sources.

6 One might contrast the very different approach to legislation in the United Kingdom where particular types of artistic work were protected under separate statutes, each with relatively detailed provisions on the threshold of protection and rights conferred.

7 The complete works of this commission is available online: ’Minutes of the 1825-1826 Commission (1826)’, Primary Sources. Some discussion was directly concerned with artistic property and in particular the analogy between literary and artistic property, and the necessity for any new legislation to uphold a similar duration in these two comparable fields (see in particular pp. 314 and 331 for the proposed bill). For further details, see F. Rideau, ’Commentary on the Minutes of the 1825-1826 Commission (1826)’, Primary Sources.

8 See in particular Philippe-Antoine Merlin, ’Contrefaçon’, in Répertoire universel et raisonné de jurisprudence, 5th ed., vol. 5 (Paris, 1825); see also ’Merlin on Counter-feiting (1825)’, Primary Sources.

9 A.C. Renouard, Traité des droits d’auteurs, dans la littérature, les sciences et les Beaux-Arts, vol. 2 (Paris, 1839).

10 E. Blanc, Traité de la Contrefaçon, 4th ed. (Paris, 1855).

11 Especially the last edition of his treatise in the nineteenth century: E. Pouillet, Traité théorique et pratique de la propriété littéraire et artistique et du droit de représentation, 2nd ed. (Paris, 1894).

12 C. Couhin, La propriété industrielle, artistique et littéraire, vol. 2 (Paris, 1898).

13 ’French Literary and Artistic Property Act (1793)’, Primary Sources.

14 On this point, see F. Rideau, ’Commentary on the Court of Cassation on Sculptures (1814)’, Primary Sources.

15 Robin v. Romagnesi, Cour de Cassation, 17 November 1814, Sirey 1812-1814.1.630-1; see ’Court of Cassation on Sculptures (1814)’, Primary Sources.

16 Merlin, p. 286.

17 Ibid.

18 Ibid., p. 287. Merlin also relied on Article 425 of the Code Pénal of 1810, which also mentioned ’or of any other production’.

19 Betbéder and Schwalbé v. Mayer and Pierson, Cour de Cassation, 28 November 1862, Dalloz 1863.1.52; see ’Court of Cassation on Photography (1862)’, Primary Sources.

20 Leclerc v. Villeprend and Brunet, Cour de Cassation, 2 December 1814, Sirey 1812-1814.1.637; see ’Court of Cassation on Compilations (1814)’, Primary Sources.

21 In fact, a creation that had to be ’proper’to its author could reveal at the same time an objective and subjective definition of the work. Merlin had indeed referred at the time to compilations whose construction could resemble ’noble palaces’, genuine ’creations’, reflecting, in a way, their author’s personality. On this ambiguity, and the evolution of the criteria of protection, see the Cour de Cassation’s ruling of 2 December 1814 and its commentary (’Court of Cassation on Compilations (1814)’, Primary Sources).

22 Correctional Tribunal of the Seine, 10 December 1834, quoted from Pouillet, p. 102. See also Blanc, p. 296.

23 Blanc, p. 296f.

24 Court of Paris, 22 January 1829, and Court of Bordeaux, 26 May 1838, Sirey 1838.2.485-6 (cases quoted by Pouillet, p. 103).

25 The same debates would occur in relation to photography. Photographic productions gave rise to contradictory decisions before the lower courts from the early 1860s onwards, until the ruling of the Cour de Cassation of 28 November 1862 in Betbéder and Schwalbé v. Mayer and Pierson, Dalloz 1863.1.52 (’Court of Cassation on Photography (1863)’, Primary Sources). Basically, it could be argued at the time that a photograph was purely a mechanical product, and was not creating anything. In fact, the intellectual and artistic labour of the photographer, if it existed, it did so mainly prior to the material execution of the photograph itself. On the contrary, the choice of the subject, the viewing angles, lighting, and so on, allowed the photographic production to be a potentially protectable subject matter. For further details, see F. Rideau, ’Commentary on the Court of Cassation on Photography (1862)’, Primary Sources.

26 Pouillet, pp. 104-5. See also Couhin, p. 408 for whom these miniatures can imply, to a certain degree, ’a personal effort’.

27 Fontana v. Public Attorney, Cour de Cassation, 13 February 1857, Dalloz 1857.1.111; see ’Court of Cassation on Originality (1857)’, Primary Sources (emphasis added). In some decisions, the word ’certain’ can be noted; see for example Court of Colmar, 17 August 1858, which entirely confirmed the decision of Tribunal Correctionnel of Strasbourg, 30 January 1858, in acknowledging the protection of compilations ’on condition that they represent a certain conception of the mind, a genuine labour, a creation’ (Pataille, Annales de la propriété industrielle, artistique et littéraire, Tome VI, 1860, p. 399).

28 Court of Bordeaux, 22 April 1861, in the decision Havas, Bullier & Co. v. Gounouilhou, which led to the decision of the Cour de Cassation, 8 August 1861, Dalloz 1862.1.137; see F. Rideau, ’Commentary on Court of Cassation on Telegraphic News (1861)’, Primary Sources.

29 Court of Paris, 10 April 1862, in the abovementioned case of Betbéder and Schwalbé v. Mayer and Pierson, Dalloz 1863.1.53-4. See further F. Rideau, ’Commentary on the Court of Cassation on Photography (1862)’, Primary Sources.

30 O. Laligant, La Véritable condition d’application du droit d’auteur: originalité ou création? (Aix-en-Provence: Presses Universitaires d’Aix-Marseille, 1999), who also discusses the impact of authors such as Baudelaire in the ’radicalization’ of literary originality, pp. 62-5. Concerning the minimum threshold of protection of these productions, the criteria of protection would indeed evolve, in the course of the nineteenth century, from a work supposed to represent a certain investment of personal labour of the author (a labour ’proper to him’, as stated by the Supreme French Court on 2 December 1814) to a work which had to bear or display some ’originality’. On this development, see in particular F. Rideau, ’Commentary on the Court of Cassation on Originality (1869)’, Primary Sources.

31 Renouard, p. 81: ’One can hear a lot of vociferous protesting about the protection due to genius in the countless legal disputes relating to the articles produced by the manufacturers of bronze and porcelain figurines, by founders, enamellers, and the members of many other analogous professions – disputes which are after all concerned solely with industrial and mercantile interests, and which raise questions requiring the application of the existing special laws on trade marks and industrial designs’. Translation by Luis A. Sundkvist. On this question, see also K. Scott, ’Art and Industry. A Contradictory Union: Authors, Rights and Copyrights during the Consulat’, Journal of Design History, 13 (2000), 1-21.

32 Pouillet, p. 23.

33 Barbedienne v. Van Loqueren and Others Cour de Cassation, 16 May 1862, Dalloz 1863.1.111 and, with regard to decisions as to whether photographic productions met the criterion that could sustain protection, see Betbéder and Schwalbé v. Mayer and Pierson, Cour de Cassation, 28 November 1862, Dalloz 1863.1.52.

34 For the position in the United Kingdom, at least with respect to paintings, see the essay in this collection by Ronan Deazley (’Breaking the Mould? The Radical Nature of the Fine Arts Copyright Bill 1862’).

35 Heirs of Baron Gros and Vallot v. Gavard, Cour de Cassation, 27 May 1842, Dalloz 1842.1.297. For further details, see F. Rideau, ’Commentary on Court of Cassation on Artistic Property (1842)’, Primary Sources.

36 Dalloz 1842.1.304.

37 Dupin also rejected the protection of the non-pecuniary interests of the original artist as a legitimate argument: see Dalloz 1842.1.303-4.

38 In fact, this had been the solution proposed in March 1841 in the literary and artistic property bill. For this document see ’Report of Lamartine and Parliamentary Debates on Literary Property (1841)’, Primary Sources.

39 Veuve Gros and Vallot v. Gavard, Cour de Cassation, 23 July 1841, Dalloz 1841.1.322. For a precise presentation of the facts by the councillor Romiguières see ’Court of Cassation on Artistic Property (1841)’, Primary Sources.

40 Couhin, pp. 410-1.

41 Ibid., p. 413.

42 And, of course, although not mentioned, derivative works of sculpture were also implied; ibid., p. 409.

43 Ibid., p. 410.

44 Pouillet, pp. 362-3.

45 A. Vaunois, De la Propriété artistique en droit français (Paris, 1884), pp. 293-4.

46 We should recall that engraving was the only means of reproduction explicitly mentioned (Article 1: Authors of writings of any kind, composers of music, painters and draughtsmen who shall cause paintings and drawings to be engraved).

47 As Couhin put it at p. 414, echoing Article 8 of the abovementioned Royal Decree of May 1777, ’there is also his [the artist’s] fame to take into account, or, at any rate, his reputation. Nothing more delicate, indeed, and more complex, and often more difficult than the reproduction of a work of the intellect.’

48 These three decisions are summarized by Pouillet, pp. 555-6. The English court, at roughly the same time, held that the owner of copyright in an engraving was entitled to prohibit the making of copies by photographic means: Gambart v. Ball (1863) 14 CB (NS) 306.

49 This was also the question debated for literary translation. On Renouard’s opinion on translations, see Rosa v. Girardin, Court of Rouen, 7 November 1845, Dalloz 1846.2.212; ’Court of Appeal on Translations (1845)’, Primary Sources.

50 Renouard, pp. 88-9.

51 Pouillet, p. 551.

52 Ibid., p. 552.

53 E. Soleau, Rapport à la Chambre de commerce de Paris, sur la protection des dessins et modèles appliqués à l’industrie, Annexe V (Bull. Ch. Com: Paris, 25 February 1905), extract cited by Pouillet, Traité théorique et pratique de la propriété littéraire et artistique et du droit de représentation, 3rd ed. (Paris, 1910), p. 105. Soleau’s campaign was successful in that it led to the law of 11 March 1902.

54 See Pouillet, p. 89f.

55 Cinquin v. Lecocq, Cour de Cassation. 25 June 1902, Dalloz 1903.1.5; see ’Court of Cassation on Moral Rights (1902)’, Primary Sources.

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