Thomson Sweet & Maxwell
IIC 2007, 38(6), 736-738
International Review of Intellectual Property and Competition Law
2007
Copyright law: France - Victor Hugo II
© 2014 Max Planck Institute
Subject: Intellectual property. Other Related Subject: Media and entertainment
Keywords: Books; Copyright; France; Freedom of expression; Moral rights
Legislation: European Convention on Human Rights 1950 Art.10
Case: Hugo v Plon SA (Unreported, January 30, 2007) (Cass (F))
*736 The “sequel” to a literary work is a question of the adaptation right; subject to the respect of the right of paternity and of integrity of the adapted work, *737 freedom of creativity prevents the author of a work or his heirs forbidding a sequel being made to the work following the expiry of the exploitation monopoly of which they were the beneficiaries.
Decision of the Supreme Court (Cour de cassation), (1st Civil Division) 30 January 2007
SA Plon et al. v. Pierre Hugo et al.
Facts:
Mr. X, a writer and journalist, is the author of two novels entitled “Cosette ou le temps des illusions ” (Cosette, or the Time of Illusions) and “Marius ou le fugitif ” (Marius, or the Fugitive), published by Plon and presented as being the sequels of “Les Misérables” by Victor Y. The latter's heir, Mr. Pierre Y, brought an action before the court for damages for an infringement of the respect due to his ancestor's work. The Société des gens de lettres (SGDL) voluntarily intervened in support of this action and petitioned for the payment of the symbolic amount of one euro for the infringement of the profession's collective interests. The appeal court upheld these petitions.
Findings:
On the three sections of the first ground for the appeal, as set out in the statement of claim and reproduced in the attachment:
Having rightly held that the succession to moral rights followed, in the present case, the ordinary rules governing succession by inheritance, the appeal court proceeded to a thorough assessment of Victor Y's intentions as expressed in his wills dated 9 April and 23 September 1875, while ignoring the distinctions established by the law dated 11 March 1957 concerning the succession to the different prerogatives under moral rights, and concluded that the author intended to distinguish the dissemination of his work, which he had entrusted to third parties, from the right to the respect and authorship thereof, and that he had not intended to deprive his heirs of the latter. The first section of the ground for the appeal is thus not supported by the facts.
Plon and Mr. X failed to assert before the appeal court that the succession by inheritance, by virtue of which Mr. Pierre Y claimed the status of heir, had not been accepted. The second section of the ground for the appeal submits new material and is tainted with submissions of fact, and is therefore inadmissible.
Finally, if the right to the respect of the work passes to the heirs according to the ordinary rules of succession by inheritance, the co-heir is entitled to act alone in defence of such right. Accordingly, on this ground, replacing that adopted by the appeal court, the ruling is likewise well founded.
On the second ground for the appeal, as set out in the statement of claim and reproduced below:
Having held that the SGDL, an association recognised as being in the public interest, was, according to the terms of its by-laws, empowered to “ensure in a general manner the protection of the intangible and tangible interests of its members” (Art. 1) and was entitled to intervene in all litigation concerning a professional point of law of general interest (Art. 44 (4)), the appeal court, holding that the present case raised the fundamental question of the lawfulness of “sequels” to fictional works that were capable of infringing the collective interests of the profession, rightly held that the said association was entitled to intervene voluntarily in the present case. For this reason, the ground for appeal is unfounded.
However, on the third ground for appeal:
*738 In application of Arts. L. 121-1 and L. 123-1 of the Intellectual Property Code, in conjunction with Art. 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, the “sequel” of a literary work is a question of the right of adaptation. Subject to the respect of the right to a name and to the integrity of the adapted work, freedom of creativity prevents the author of a work or his heirs from forbidding a sequel being made to the work following the expiry of the exploitation monopoly of which they were the beneficiaries.
The appeal court held that by editing and publishing the two works at issue, and by presenting them as sequels to “Les Misérables”, Plon had infringed the moral rights of Victor Y to the latter work. In justification, the court stated that although the author had never expressed himself on, and even less had opposed, dramatisations of his books or even the adoption by other writers of one or other of his characters, it was nevertheless clear that the author would never have agreed to a third party writing a sequel to “Les Misérables”. It was of little importance that the characters, resuscitated in one case, reanimated in others, were retained in the books wrongly presented as being adaptations of the first work, since Plon claimed, outside the judicial world, that they were the continuation, faithful or not, of those put into the world for literary eternity by Victor Y. The prohibition of any sequel to Les Misérables could not be, as wrongly argued, an infringement of the principle of free creativity, since in the present case, this work, a true monument of world literature, was firstly not just a simple novel in that it was the result of a philosophical and political process, as stated explicitly by Victor Y, and secondly was complete, such that it followed that there could be no sequel to a work like “Les Misérables” without an infringement of Victor Y's moral rights.
By holding thus, for invalid reasons drawn from the genre and the merit of the work or the fact of its being complete, and without having examined the works at issue or having held that they had changed the work of Victor Y or that confusion had arisen as to their authorship, the appeal court failed to describe the infringement of the moral rights, thereby adopting a decision in conflict with the freedom of creativity and infringing the cited legislative provisions.
The decision rendered on 31 March 2004 between the parties by the Paris Court of Appeal is reversed and set aside except to the extent that it held the action by Mr. Pierre Y and the voluntary intervention by the SGDL to be admissible. As a consequence, the parties and the case are, in the other points, returned to the condition in which they were before the said decision, and the case is returned for rehearing to the Paris Court of Appeal with a different composition.
D.W.
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