COPYRIGHT ON THE CAMPAIGN TRAIL

COPYRIGHT ON THE CAMPAIGN TRAIL


The firm UGGC Avocats proposes to decipher the presidential campaign through the prism of intellectual property and personal data, with an episode every 15 days.


1st episode: Copyright in the campaign.


In this first episode, the firm’s intellectual property team looks back at the broadcasting of two videos announcing presidential candidacies which, each in their own way, brought copyright into the campaign:


(I) The first incorporates extracts from films without the authorisation of the rights holders;


(II) The second shows a candidate in front of the Louvre Pyramid without the permission of the Louvre Museum.


Our comments are not intended to be partisan. It is limited to a legal analysis of these two current events, which ultimately serve as a reminder of the extent of the prerogatives conferred by copyright when some present it as a right of censorship limiting freedom of expression (which we cannot do without a fortiori during election periods…).


I – ON THE INCLUSION OF FILM EXTRACTS IN A CANDIDATE’S CAMPAIGN VIDEO, WITHOUT THE AUTHORISATION OF THE RIGHTS HOLDERS


The campaign clip of the “Reconquête!” candidate is said to have reproduced 114 sequences[1]from films without the authorisation of the rights holders, in particular scenes from the film Joan of Arc (1999) by Luc Besson or the film A Monkey in Winter (1962) by Henri Verneuil [2].


Under the French Intellectual Property Code, any representation or reproduction in whole or in part without the consent of the author or his successors in title or assigns is unlawful.[3].


In other words, any use of a work without authorisation is necessarily an act of infringement, regardless of the good faith of the infringer.[4].


On this basis, the candidate and his “Reconquête!” party were summoned before the Paris Magistrates’ Court for copyright infringement, in particular by Gaumont and the Société des auteurs et compositeurs dramatiques – a collective management society better known by its acronym: “SACD”.


At the hearing, which took place on 27 January 2022, the candidate allegedly invoked the exception of citation[5]to justify the fact that no authorisation had been requested from the rights holders.


However, without prejudging the decision of the Court of First Instance (whose deliberations are scheduled for 4 March 2022), it seems to us that this defence is not appropriate.


The defence of citation is allowed under strictly defined conditions relating to (i) the purpose of the borrowing; (ii) its extent; (iii) its recognition and (iv) its purpose – it being specified that these conditions are cumulative:


(i) As regards the purpose of the borrowing, there is no legal definition of a quotation, so we must rely on case law, which specifies that a quotation is a partial identical reproduction (or representation, as the case may be)[6].


(ii) As regards the extent of the borrowing, it must be brief. This brevity is assessed in relation to the total length of the work in which the quotation is incorporated.


The following are not considered to be short quotations


A film clip of 17 minutes and 36 seconds included in a 58-minute programme[7] ;


The representation of software images for 3 seconds in an advertising film, i.e. one tenth of the total duration of the film[8].


(iii) As regards recognition of the borrowing, the name of the author and the source must be indicated (in the credits, for example).(iv) As regards the purpose of the borrowing, this must be justified by the critical, polemical, educational, scientific or informative nature of the work in which the extract is incorporated.


In this case, at least 2 conditions seem to be lacking: :


No reference to the name of the author or the source of the extract has been included in the clip or its credits;


The purpose of the clip is to announce a presidential candidacy, so it seems to us that the quotation cannot be justified by its critical, polemical, educational, scientific or informative nature.


As such, the quotation exception should not be accepted and authorisation from the rights holders is required.


The right holders will also be able to invoke, in any event, an infringement of their moral rights for the use of their work for political purposes and be compensated on that basis[9].


II – FILMING A CANDIDATE IN FRONT OF THE LOUVRE PYRAMID WITHOUT THE LOUVRE’S PERMISSION


To launch her campaign on social networks, the Rassemblement National candidate chose to publish a video filmed in the courtyard of the Louvre, with the Pyramid in the background.


It should be remembered that the Louvre is the exclusive assignee of all property rights relating to the pyramid designed by architect Ieoh Ming Pei.


As such, representations or reproductions of the image of the Pyramid[10]must be authorised in advance by the Musée du Louvre.


Any representation or reproduction of the Pyramid, in whole or in part, made without the consent of the author or his successors in title is therefore unlawful.


Is any video or photograph of the Pyramid illegal?


No.


The panorama exception allows any individual to reproduce or represent an architectural work permanently placed on the public highway.[11].


This means that an individual can take and post photos of the Louvre Pyramid on social networks without being prosecuted on the grounds that he or she has not sought permission from the rights holders.


The solution is different in the case of legal entities, for whom the exception is never intended to apply (exceptions to copyright being interpreted strictly).


In this case, assuming that the video was filmed by the candidate’s political party, i.e. by a legal entity, the panorama exception would not apply.


A subsidiary question is whether it is appropriate to invoke the theory of the incidental.


According to the accessory theory, when the work of the mind is not the main subject of the image, but constitutes its secondary plane, the exclusive right of its author is limited and the author’s prior authorisation is no longer necessary.[12]


Generally speaking, the case law proceeds to an analysis in concreto of the place occupied by the object protected by copyright, both on a purely visual level and on an intellectual level.


On the visual level, the candidate appears in the foreground and the Louvre pyramid in the background, but in a visible manner;


Intellectually, the candidate indicated in her publication that she wanted to return to ” the place where Emmanuel Macron’s five-year term began “The filming of the candidate in the courtyard of the Louvre and in front of the Pyramid is therefore not accidental.


For these reasons, the theory of incidentality does not appear to be validly invoked.


As no exception is intended to apply, it seems to us that authorisation from the Musée du Louvre was required, even if the latter has not yet decided what action it wishes to take on the broadcast of the video.


The architect’s heirs could, in any event, invoke their moral rights to have the video removed from social networks.


Moreover, the video is still accessible on the candidate’s social networks, in particular on Instagram – which raises, finally, the question of the liability of the platforms in the event of dissemination of infringing content. Under Article 17 of the Copyright Directive[13]Instagram is legally performing an act of communication to the public for content uploaded by its users, which in principle obliges it to remove infringing content.


Next episode in 15 days’ time ….


The intellectual property team at UGGC Avocats


Key words: copyright, economic rights, moral rights, presidential campaign, freedom of expression, exception, campaign clip, infringement, rights holders, presidential candidates


[1] According to the count made by R. Imbach, R. Geoffroy, P. Breteau, A. Maad in “Le clip de campagne d’Eric Zemmour décortiqué : 114 séquences ” emprunées ” et quelques contresens”, Le Monde, 3 December 2021, https://www.lemonde.fr/les-decodeurs/article/2021/12/03/le-clip-de-campagne-d-eric-zemmour-decortique-114-sequences-empruntees-et-quelques-contresens_6104627_4355770.html.


[2] S. Laurent, “Eric Zemmour face aux ayants droit des images utilisées dans son clip de lancement de campagne”, Le Monde, 27 January 2022, https://www.lemonde.fr/election-presidentielle-2022/article/2022/01/27/justice-eric-zemmour-face-aux-ayants-droit-des-images-utilisees-dans-son-clip-de-lancement-de-campagne_6111287_6059010.html.


[3] Article L. 122-4 of the French Intellectual Property Code.


For an application to the reproduction of a photograph of a film scene, see Civ. 1ère3 June 1997, no. 95-14.664.


[4] Civ. 1ère29 May 2001.


[5] Article L. 122-5-3°a) of the French Intellectual Property Code.


[6] CA Paris, 4th ch., 9 Nov. 1989: JurisData n° 1989-025328.


[7] TGI Paris, 14 September 1994.


[8] Paris, 22 September 1988.


[9] Article L. 121-1 of the French Intellectual Property Code.


[10] Considered an intellectual work within the meaning of Article L. 112-2 7° of the French Intellectual Property Code.


[11] Article L. 122-5-11° of the French Intellectual Property Code.


[12] Com, 15 March 2005, no. 03-14.820: “In the views in question, the work by Messrs X… and Y… was part of the architectural ensemble of the Place des Terreaux, of which it was a mere element, and the Court of Appeal deduced that such a presentation of the work in question was incidental to the subject matter, which was the representation of the square, so that it did not communicate the work to the public”.


[13] Directive (EU) 2019 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the digital single market and amending Directives 96/9/EC and 2001/29/EC : https://eur-lex.europa.eu/legal-content/FR/TXT/PDF/?uri=CELEX:32019L0790&from=DA ..


Next episode in 15 days ….


The intellectual property team at UGGC Avocats

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