IP rights in art in France

Intellectual property rights

Does copyright vest automatically in the creator, or must the creator register copyright to benefit from protection?

The author of a work of the mind automatically enjoys in this work, by the mere fact of its creation, exclusive intellectual property rights, which are enforceable against all persons (article L111-1 of the Intellectual Property Code). There is, therefore, no formality required, such as registration, for an author to benefit from intellectual property right protection.

What is the duration of copyright protection?

An author enjoys two types of intellectual property rights: moral rights and economic rights. Moral rights are perpetual; economic rights last for the duration of the author’s lifetime plus 70 years after his or her death, after which time his or her works fall into the public domain (in the sense of intellectual property law) and may be used freely.

Can an artwork protected by copyright be exhibited in public without the copyright owner’s consent?

No, the right of exhibition is exclusively held by the author of the artwork (it is one of the attributes of his or her economic rights with the reproduction right). Hence, all public exhibition of the author’s work require his or her prior consent. This is an application of a core principle under French intellectual property law according to which the ownership of the intellectual property right is independent from any ownership right in the physical object (ie, in the artwork itself (article L.111-3 of the Intellectual Property Code)).

Can artworks protected by copyright be reproduced in printed and digital museum catalogues or in advertisements for exhibitions without the copyright owner’s consent?

In theory, no. Each reproduction of an artwork must be authorised by the author. However, the law provides for an exception to the right of reproduction when the reproduction is made by libraries, museums or archival services for conservation purposes only. Another exception is the reproduction in catalogues of auction sales after seizure; voluntary auction sales are not covered by this exception.

Are public artworks protected by copyright?

An artwork is protected if it is an original work of the mind of the author irrespective of the place where it is displayed. However, copyright protection may be attenuated based on public order considerations (and notably public security) when an artwork is displayed in public space.

It has been disputed whether street art should be protected by copyright insofar as the creation in itself is illicit; however, with the growing fame of street artists, there is less contention and courts tend to grant intellectual property protection to the artists.

Does the artist’s resale right apply?

Yes. The royalty is levied on sales involving art market professionals as sellers, buyers or intermediaries (ie, art galleries, art dealers and auction houses). The royalty right benefits the artist during his or her lifetime and benefits his or her heirs and legatees for 70 years after his or her death. The possibility for an author to bequeath his or her royalty right only became available in July 2016.

No royalty is levied on first direct sales by the artist or his or her heirs or on the resale by a seller who has acquired the artwork directly from the artist less than three years before that resale and where the resale price does not exceed €10,000 or on any resales for a price lower than €750.

The rates of the royalty applicable are regressive:

• 4 per cent for any part of the sale price between €750 and €50,000;
• 3 per cent for any part of the sale price between €50,000 and €200,000;
• 1 per cent for any part of the sale price between €200,000 and €350,000;
• 0.5 per cent for any part of the sale price between €350,000 and €500,000; and
• 0.25 per cent for any part of the sale price over €500,000.

The total amount of the royalty may not exceed €12,500. In other words, all artworks sold for €2 million or over will be subject to a flat royalty of €12,500.

The seller of the artwork is normally responsible for the payment of the royalty, although there is a pending dispute before the courts over the transfer of the burden of the royalty to the buyer. The art market professional that acts as an intermediary in the sale (eg, an auction house) is responsible for collecting the royalty from the seller and passing it to the relevant collecting agency.

What are the moral rights for visual artists? Can they be waived or assigned?

French law grants authors moral prerogatives on their work. These rights are directly attached to the author as a person; they are perpetual, inalienable and imprescriptible.

There are four types of moral prerogative:

• the right to paternity, allowing the author to command that his or her name be associated with his or her work;
• the right of integrity of the work, which allows the author to oppose any alteration of his or her work and any misuse of the work;
• the right of disclosure, which allows the author to decide when and how his or her work will be communicated to the public and to oppose the exploitation of a work that he or she has not made public; and
• the right of withdrawal or to reconsider, which allows the author to decide either to discontinue the exploitation (right of withdrawal) or to alter the work (right to reconsider).