The principle of independence of tangible and intangible ownership of a piece of work


Le principe d’indépendance de la propriété corporelle et incorporelle d’une œuvreWhen one walks around in a museum armed with his beautiful camera or smartphone, it is common for him to want to take photographs of artworks that make one shiver. With our finger on the trigger, we are about to immortalize the masterpiece before our very eyes… But, is it really legal?

By way of illustration, if you take a walk at the Hansen’s secret garden exhibition at the Jacquemard André museum, it is possible to admire the magnificent “Fleurs et fruits” (1909) by painter Henri Matisse. But if you take a closer look, especially under the picture, you will see a “No Photography” sign. How is that possible?

  1. The principle of copyright

Copyright consists of two sets of rights:

  • Moral rights, perpetual, imprescriptible and inalienable rights, consisting of the right of disclosure, paternity, withdrawal and the right to respect for the artwork;
  • Economic rights, consisting of the right of reproduction and the right of representation, which are customarily assigned in the course of business.

Economic rights enable the author or his or her successors, on the event of the death of the author for example, to exploit the artwork. Unlike moral rights, economic rights are limited in time: for the life of the author and, in most cases, for the first 70 years after death, save for some exceptions (as war extension).

  1. Independence of media and rights

During his or her lifetime, the author may wish to sell artworks without assigning his or her economic rights. This is where the principle of independence of the tangible property (the medium) and the intangible property (copyright) of the work in question comes into play.

Article L111-3 of the French Intellectual Property Code enlightens us in these words:“The intangible property defined by article L111-1 is independent of the ownership of the material object”. In other words, the purchaser of the painting, for example, is not invested with any of the moral and property rights, despite the acquisition. The author or the rights-holders, on the other hand, will not be able to demand from the owner of the material object that this object should be made available to them for the exercise of these rights. On the other hand, in the event of known abuse by the owner of the medium, preventing the exercise of the right of disclosure, the Regional Court may take appropriate measures.

It is on this principle, for example, that museums and all kind of artwork owners, have in reality only the ownership of the tangible support, and can prohibit visitors, at the request of the author or rightful owners, and in all legality, from photographing the artwork, under cover of the reproduction right. To take our example, Henri Matisse having died in 1954, his works will be free of rights in… 2024! Seventy years after the author’s death. But beware, we must not forget that moral rights are imprescriptible and that rights-holders can always avail themselves of them.

The assignment of economic rights must therefore be the subject of a separate agreement, specifying the scope of the rights assigned and the method of remuneration, if any.

Furthermore, article L122-5 of the Intellectual Property Code clearly states that “Once the work has been disclosed, the author cannot prohibit: 9° The reproduction or representation, in whole or in part, of a work of graphic, plastic or architectural art, by written, audiovisual or online press, for the exclusive purpose of immediate information and in direct connection with the latter, provided that the author’s name is clearly indicated. » This is why it is possible to see a museum’s Internet website reproduce the painting in digital format in order to illustrate an exhibition legally… But this is also why we must be careful with the images offered by the Google search engine for example, since most of the photos in Google Images are used in violation of copyright, and particularly the right of reproduction. Thus, acquiring a painting does not mean that you own the copyright!

Dreyfus & associés and its litigation department can help you in your willingness to assign your copyrights, but also to enforce them in case of litigation.