(Civ 1ère, Oct. 17, 2012, no. 11-18.638)

The issue argued before the French Supreme Court (Cour de Cassation) was whether the abandonment of a portion of a building project for ten years could cause the architect of the project to lose his intellectual property rights in the work he had designed.

In its decision on October 17, 2012, the 1st civil division of the Court answered that question in the affirmative. The architect had been commissioned in 1990 to design a building complex for office use to be built in several phases. The architect designed a building with two symmetrical pavilions, but which could be built independently.

However, the builder that had commissioned the architect only carried out the first phase, following which the project remained stopped for the next ten years. The land was then divided and another company purchased the adjoining plot to put up another adjacent building, but with a different design.

At that point, the original architect asserted the infringement of his moral rights, meaning his copyright over the architectural work.

The Court of Appeal of Rennes dismissed his claim on March 8, 2011, holding that the architect “cannot effectively argue that his work represented a unique project that could only become coherent upon completion of the second phase, since he had accepted that only the first might be carried out, that the project might not be completed and that his work, which remained incomplete for almost ten years, might remain alongside an abandoned construction site on which only the foundations had been built, such that by waiving the right to completion of his initial project, he had lost his copyright over the initial project”.

In such cases, it is a matter of well-established case law that a balance must be struck between the moral rights of the architect and the needs of the owner of the building. The architect cannot assert the strict intangibility of the building so as to protect his copyright to the architectural work (Civ 1ère, Jan. 7, 1992). The owner can make changes to the building, but only if necessary to respond to new needs and to the extent strictly necessary (Civ 1ère, June 11, 2009).

In this ruling, the French Supreme Court has thus added a second limitation to an architect’s moral rights.

Specifically, although it did not consider that the abandoning of part of the project entailed an implicit waiver by the architect of his moral rights, it held that the abandoning of part of the project sufficed to defeat any subsequent characterization of infringement of the architect’s moral rights.