No exclusive right on the image of property

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.

The public facility then appealed before Nantes’ administrative Court of Appeal on December 16, 2015. The Court rejected the public facility’s pecuniary claims, because it didn’t have jurisdiction on such issues, but nevertheless recognized that the Chambord castle had the power to manage the castle’s image, as a public domain’s administrator.

The Chambord castle then lodged an appeal in cassation before the Council of State.

The Council of State recalled that, according to article L1 of the General Public Property Code, the image of public properties is not part of the State’s concern. In addition to that, it also highlights that a public property’s image is likely to be a property.

Furthermore, the Council of State also brought some clarifications concerning the terms of use of public domain properties’ image. As such, it was stated that the use of public properties’ image is not subjected to any prior administrative control. Commercial use is thus available to all and free of charge, as long as the image does not lead to a private use of public property. If it isn’t the case, then an administrative authorisation will be necessary.

The Council of State appears to agree with the Court of Cassation’s position. Indeed, as a matter of private law, the question surrounding properties’ right to image has often been the centre of multiple judgments. Those same decisions have led to significant jurisprudential evolutions.

The first judgments found their origins in article 9 of the Civil Code, the right of private life’s respect. It was about proving that the publication of a building’s image constituted an infringement to private life, which turned out to be more difficult to demonstrate than expected. (Cour de Cassation, Chambre civile 2, du 29 juin 1988, 87-10.463).

Other judgments then relied on article 544 of the Civil Code, concerning property right. Property right is a fundamental right with a constitutional value (Cons. const., n° 81-132 DC, 16 janv. 1982 ). According to the Declaration of the Rights of Man and of the Citizen’s article 17, it relates to an “unavoidable and sacred right”. Since then, and in accordance also with article 544 of the Civil Code, property right is regarded as an absolute, exclusive and perpetual right.

At first, the Court of Cassation recognized on March10, 1999 that “only the owner owns the right to exploit his property, however he wishes to do so.” (Cour de Cassation, Chambre civile 1, du 10 mars 1999, 96-18.699, Café Gondré).

But afterwards, the Court of Cassation stated that the commercial exploitation of a property’s image does not in itself constitute an infringement to the right of use. It is only the case when there is a “noticeable disorder of an owner’s right of use”. (Cour de Cassation, Chambre civile 1, du 2 mai 2001, 99-10.709, l’îlot du Roch Arhon).

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.

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