The image of property cannot be subjected to an exclusive right. This is also valid for public domain properties, as stated in the Council of State’s decision dated April 13, 2018. (CE 13-4-2018 n°397047, Etablissement public du domaine national de Chambord c/ Société Kronenbourg). In this case, the Kronenbourg company used a photography of Chambord castle as one of its advertisements. Chambord’s public facility then asked for a fee. In lower court, Orleans’s administrative tribunal gave reason to Kronenbourg by rejecting the fee demand. The court declared that only Chambord castle belonged to the public domain, not a photography representing the castle.
Following this judgement, the Court of Cassation strengthened its statement by affirming that “The owner of a property does not have an exclusive right on its image; however, they can still oppose itself the use of the image by a third-party when it causes an abnormal inconvenience”. (Cour de Cassation, Assemblée plénière, du 7 mai 2004, 02-10.450, Hôtel de Girancourt). Since then, article 544 of the Civil Code has been replaced by ancient article 1382 of the Civil Code (now known as new article 1240 after the obligations law’s reform), in order to define the term “abnormal inconvenience”. For instance, a winegrower affixing images of a castle belonging to a competitor on his bottles is now recognized as an abnormal inconvenience. (Cour de cassation, civile, Chambre civile 1, 28 juin 2012 10-28.716).
Ultimately, it is no longer possible to stop a third-party from using someone else’s image of a property, unless one manages to prove that the broadcasted image causes an abnormal inconvenience to the property’s owner. Such an inconvenience can be related to free-riding, disloyal competition, or even infringement of private life.