French Supreme Court, Decision of 25 March 2010, No. 09-67.515, Lévinas, Hansel vs. Ed. Grasset and Fasquelle

The right to publish a work protected by French author rights was the subject of a decision of the 1st Chamber of the French Supreme Court relating to the publication of posthumous works of the well-known philosopher Emmanuel Lévinas.

Emmanuel Lévinas died in 1995 leaving his two children, Simone and Michaël, as his heirs. Although both inherited the patrimonial rights to his works, only Michaël was designated by his father as the owner of the right to publish his works as part of the moral rights. Lévinas' codicil stated: "I assign the moral right to my son exclusively in relation to the publication and the preservation of the manuscripts and of the works already published."

In 2007, Michaël had entered on his own into a publishing contract with the publisher Grasset & Fasquelle for the publication of his father's works. Simone began legal proceedings against her brother claiming that he infringed her right of exploitation of her father's works by failing to seek her consent to the publication. She requested the seizure of all the copies of the books already manufactured or being manufactured and the prevention of any further commercialization.

The Court of Appeal of Paris dismissed Simone's claims. Simone appealed to the French Supreme Court, arguing that the owner of the right to publish was not entitled to enter into a publishing contract which included a notable assignment of the right of reproduction and the right of representation, without the consent of the owners of the patrimonial rights.

The French Supreme Court said that only the owner of the right to publish was entitled to enter into a publishing contract because, according to the French Intellectual Property Code, only the owner of the right to publish can "determine the methods of publishing and the conditions thereof". The court also said that the right to publish, which was part of the moral rights of the author conferred upon its owner the right to disclose the work to the public, which prevailed over the patrimonial rights of the author. Therefore, said the court, the owner of the right to publish was entitled to negotiate the first publishing contract. The owner of the inherited rights was not entitled to take part in the negotiations, unless invited.

However, the court pointed out that the owner of the patrimonial rights was entitled to earn royalties - as are all co-owners of patrimonial rights and so Simone would not be left out completely.

In confirming the decision of the Court of Appeal of Paris, Michaël was therefore found to be entitled to publish without his sister's consent.